Lutz v. Chromatex
Citation: 19 ELR 21368
No. No. 88-1764, 718 F. Supp. 413/29 ERC 2045/(M.D. Pa., 06/09/1989) Motion to dismiss granted in part
The court holds that citizen suits under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation Recovery Act (RCRA) are prohibited if based on wholly past violations, and when a state is granted authorization to operate its hazardous waste program in lieu of the federal program, RCRA claims alleging only violations of federal law are properly dismissed. Sixty-six residents or former residents of West Hazelton, Pennsylvania, sued defendants under CERCLA, RCRA, and state law claims for the alleged contamination of their homes and bodies from defendants' releases of toxic chemicals. The court first holds that while plaintiffs' amended complaint contains all the allegations necessary to state a claim under CERCLA § 107, certain alleged response costs are not recoverable. The court holds that response costs for medical monitoring of plaintiffs' health and physical condition are not necessary costs of response under § 107. Further, the court holds that because CERCLA only allows the federal government or a state to bring natural resource damage actions, the plaintiffs' claim for loss of use of their wells must be dismissed. The court denies defendants' motion to dismiss plaintiffs' claim for reimbursement for the costs of alternative, potable water supplies, which are appropriate CERCLA response costs, since defendants' claims are more properly addressed in a fully supported motion for summary judgment. Further, the court holds that plaintiffs relocation costs are properly reimburseable without prior presidential approval.
Next, the court applies the Supreme Court's decision in Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, for the proposition that a citizen suit under CERCLA may not be based on wholly past violations. The court notes that its interpretation is supported by § 310's use of present tense, its 60-day notice period and diligent prosecution provisions, and CERCLA's legislative history. The court holds that Gwaltney applies to alleged violations of CERCLA § 103. The citizen suit provisions and Gwaltney require that plaintiffs allege a continuous or intermittent violation of CERCLA in order to state a claim. The court thus holds that if plaintiffs allege in good faith that defendants violated § 103 by failing to notify the proper authorities and by failing to keep proper records, and that defendants had remained in violation by the date of the filing of the complaint, then plaintiffs should be able to proceed on this court. The court holds that plaintiffs' attempt to amend their complaint to allege ongoing violations may not be futile and grants their motion to amend in order to eliminate the Gwaltney defect. Further, the court holds that plaintiffs may cure any technical defect in this count, related to failure to allege the release of a reportable quantity ofhazardous substance, by amending their complaint. The court grants defendants' motion to dismiss the record keeping requirement claim because plaintiffs failed to allege that defendants were persons subject to the record keeping requirement of § 103(d), but the court gives plaintiffs leave to amend. Further, the court rejects defendants' contention that a citizen suit under CERCLA does not lie for statutory violations except against federal officials for the failure to perform statutory duties. Finally, the court holds that defendants had sufficient actual notice of the alleged violations to conclude that plaintiffs complied with the notice requirements of § 310.
Next, the court holds that under RCRA, plaintiffs are required to allege either a continuous or intermittent violation, and suits based on wholly past violations are barred by § 7002(a)(1)(A). Further, the court holds that in order to bring a citizen suit for violations of RCRA § 3010, plaintiffs must allege a failure to notify that continued past the filing of the complaint. The court grants plaintiffs' motion for leave to amend to meet the Gwaltney pleading requirements. The court holds that the bulk of plaintiffs' RCRA claims fail to state a claim, since they allege only violations of federal law that was displaced by state law when Pennsylvania was granted authorization to operate its hazardous waste program in lieu of the federal program. The court grants defendants' motion to dismiss all but one of these claims, excluding a claim not found in the same covered subchapter. The court holds that plaintiffs misplace their reliance on the Environmental Protection Agency's continuing enforcement authority, because that authority is not reserved in RCRA's citizen suit provision.
The court holds that plaintiffs' claim of negligence per se, based on defendants' violations of the Pennsylvania Clean Streams Law and Solid Waste Management Act, would circumvent the expressed intentions of the legislature not to create private causes of action, and grants defendants' motion to dismiss that claim. Further, because the state laws at issue expressly declare their violation to be public nuisances, the court requires the plaintiffs to amend their complaint to properly specify the type of nuisance claimed, all the proper elements, and the basis for standing. The court next holds that the issue of strict liability based on the hazardous nature of dealing with such wastes is better left for a summary judgment motion following development of a more complete record. The court further denies defendants' motions to dismiss plaintiffs' physical injury allegations, because plaintiffs' amended complaint states they have suffered, and will continue to suffer physical injury.
Counsel for Plaintiff
Jerald J. Williams
Slap, Williams & Cuker
Ste. 960, One Franklin Plaza, Philadelphia PA 19102
Counsel for Defendant
David Richmond, Tom Schmidt, John Caroll
Pepper, Hamilton & Sheetz
Ste. 400, 10 S. Market Sq., P.O. Box 1181, Harrisburg PA 17108-1181