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Utah State Dep't of Health v. Ng

Citation: 17 ELR 20496
No. No. C86-0023G, 649 F. Supp. 1102/25 ERC 1847/(D. Utah, 11/24/1986)

The court holds that the 60-day notice requirement in § 112(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not apply to § 107 actions, a state may not seek injunctive relief under CERCLA § 107, and the state's failure to comply with the 90-day notice of endangerment provision in § 7002(b)(2)(A) of the Resource Conservation and Recovery Act (RCRA) does not bar its RCRA citizen suit. The court first rules that the pre-Superfund Amendments and Reauthorization Act version of the 60-day notice requirement in CERCLA § 112(a) applies only to actions against the Superfund and not to § 107 actions. The court concludes that Congress has intended this reading since it first passed CERCLA and thus declines to consider whether new § 112(a), which makes it clear that the notice requirement applies only to the Fund, applies retroactively. The court rules that a state may not seek injunctive relief under CERCLA § 107. CERCLA expressly limits injunctive power to the federal government under § 106.

The court holds that the state may proceed with its RCRA citizen suit. The court rules that a state may bring a citizen suit under RCRA § 7002. The court holds that the state's action is not barred by its failure to comply with the 90-day notice of endangerment provision in RCRA § 7002(b)(2)(A). This provision applies to a state bringing a citizen suit. The court holds that although the notice of endangerment provision is generally a jurisdictional prerequisite to suit, defendants' actual notice suffices in this case where the state is cooperating with the Environmental Protection Agency (EPA), serving community rather than private interests, and defendants have had more than 90 days to evaluate their potential liability. The court holds that neither EPA nor the state is actually engaging in a removal action or diligently proceeding with a remedial action at the site. The mere possibility of future EPA action does not bar a citizen suit.

Counsel for Plaintiff
Lawrence H. Edelman, Spec. Ass't Attorney General
Office of the Attorney General
State of Utah
236 State Capitol, Salt Lake City UT 84114
(801) 533-7661

Counsel for Defendants
Marilyn G. Alkire
Holme, Roberts & Owen
1700 Broadway, Denver CO 80290
(303) 861-7000

Raymond C. Marshall
McCutchen, Doyle, Brown & Enerson
3 Embarcadero Ctr., San Francisco CA 94111
(415) 393-2000