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Roe v. Wert

Citation: 19 ELR 20825
No. No. CIV-88-1852-P, 706 F. Supp. 788/29 ERC 2002/(W.D. Okla., 01/31/1989)

The court rules that the 60-day notice requirement in the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) citizen suit provision is jurisdictional. The court first holds that a claim by landowners for response costs arising out of hazardous waste contamination should have been brought under CERCLA § 310, which allows for citizen suits, rather than under § 107, providing for claims against the Superfund. The court holds that it lacks subject matter jurisdiction because under § 310, 60-day notice is now a prerequisite for citizen suits. Earlier federal court decisions ruling that pre-suit notice is not required for private response cost actions were decided prior to the Superfund Amendments and Reauthorization Act of 1986 (SARA) and were superseded by the pre-suit notice provision of § 310, which was enacted by SARA. The court also holds that notice-in-fact does not save jurisdiction. The court rules that § 7002 of the Resource Conservation and Recovery Act (RCRA) requires actual pre-suit notice. Finally, the court holds that the awarding of costs to defendants under § 310 is discretionary, and costs should be awarded when frivolous suits are brought. The court denies defendants' request for costs because this action was not frivolous.

Counsel for Plaintiffs
James A. Ikard
Angel, Ikard & Nach
101 N. Robinson, 800 American First Tower, Oklahoma City OK 73102
(405) 232-0004

Counsel for Defendants
Robert L. Huckaby
Huckaby, Fleming, Frailey, Chaffin & Darrah
201 N. Fourth St., P.O. Box 533, Chickasha OK 73018
(405) 224-0237

Robert D. McCutcheon
Hastie & Kirschner
3000 First Oklahoma Tower, 210 W. Park Ave., Oklahoma City OK 73102
(405) 239-6404