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Brewer v. Ravan

ELR Citation: 18 ELR 20799
Nos. No. 1-86-0061, 680 F. Supp. 1176/27 ERC 1352/(M.D. Tenn., 02/29/1988)

The court rules that the costs of medical testing and screening to assess the effect of a release of hazardous substances on public health or to identify potential public health problems are recoverable response costs under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Plaintiffs sued their former employer in connection with an alleged release of hazardous wastes and alleged violations of the Resource Conservation and Recovery Act (RCRA), the Federal Water Pollution Control Act (FWPCA), and the Toxic Substances Control Act (TSCA). The court first holds that plaintiffs may recover the costs of on-site soil testing and water monitoring under CERCLA §107. The court then rules that the costs of medical tests used to determine the public health implications of a release are recoverable as response costs. The court holds that to the extent that plaintiffs' medical claims represent the costs of treating personal injuries or diseases, plaintiffs cannot recover; however, to the extent that they seek the costs of public health-related costs, they assert a cognizable claim. The court also holds that plaintiffs are not entitled to civil penalties or injunctive relief under §107(a).

The court holds that plaintiffs' notice of intent to file suit under RCRA §7002 was adequate. The primary purpose of the notice requirement is to give the Environmental Protection Agency an opportunity to negotiate unhindered by the threat of an impending lawsuit. Although RCRA's notice requirement is jurisdictional, it should be applied flexibly to avoid excessive formalism. While plaintiffs' notice was arguably deficient in some respects, it served its intended purpose by clearly setting forth the specific RCRA sections allegedly violated, a generic description of the activity alleged to constitute the violation, the location of the alleged violations, and the names and addresses of the persons giving notice. However, the court holds that plaintiffs' RCRA claim must be dismissed without prejudice because it fails to specify the RCRA hazardous wastes allegedly disposed of by defendants.

The court holds that plaintiffs' FWPCA §505 claim fails to establish the court's subject-matter jurisdiction because it does not contain a good-faith allegation of on-going injury as required by Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142. Plaintiffs merely allege that defendants violated the FWPCA on several occasions more than five years ago, and defendants' plant permanently closed in 1985. The court holds that plaintiffs' complaint adequately cited the relevant statutory sections and regulations relating to their TSCA claim, and that their notice of intent to sue was adequate to accomplish its purpose. Finally, the court holds that plaintiffs' claims for civil penalties and prospective injunctive relief ignore the plain language of TSCA §20, which indicates that plaintiffs in TSCA citizen suits may only seek restraint of ongoing violations.

Counsel for Plaintiffs
Lee England
203 W. Gaines St., Lawrenceburg TN 35648
(615) 762-5812
Albert J. Slap, Gerald J. Williams
Slap, Williams & Cuker
Suite 960, One Franklin Plaza, Philadelphia PA 19102
(215) 557-0099

Counsel for Defendants
M. Clark Spoden
Dearborn & Ewing
Suite 1200, One Commerce Place, Nashville TN 37219
(615) 259-3560