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Lykins v. Westinghouse Elec. Corp.

ELR Citation: 18 ELR 21498
Nos. No. 85-508, 27 ERC 1590/(E.D. Ky., 02/29/1988)

The court grants in part and denies in part defendants' motion to dismiss an action brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), and the Federal Water Pollution Control Act (FWPCA) by residents and landowners against companies that allegedly generated and transported hazardous waste that contaminated a nearby landfill. The court first holds that plaintiffs need not obtain prior governmental approval of their response costs before seeking recovery from defendants under CERCLA, since prior governmental approval is only required when response costs are sought from the government. The court holds that medical expenses and relocation costs are response costs under CERCLA. The court holds that plaintiffs are not required to complete the cleanup prior to filing suit under CERCLA, but only must incur some response costs.

The court holds that plaintiffs' failure to give the 60-day notice required under FWPCA § 505(b) to two defendants requires dismissal. Plaintiffs' filing of an amended complaint does not cure the defective notice. The court holds that plaintiffs' allegations of current FWPCA violations against a third defendant that received proper notice are sufficient to survive a motion to dismiss, although plaintiffs did not allege that pollutants are being discharged from a point source. The court holds that this defendant is not entitled to dismissal of the FWPCA claims based on its assertion that it was an innocent off-site generator that neither owned or controlled the landfill, since plaintiffs have alleged that defendant discharged hazardous materials in violation of FWPCA §307. The court holds that plaintiffs have sufficiently alleged ongoing violations.

The court holds that plaintiffs' failure to give the 90-day notice required under RCRA §7002(b) to two defendants requires dismissal. Plaintiffs' filing of an amended complaint does not cure the defective notice. The court refuses to dismiss the RCRA claims against a third defendant that received proper notice. The court rejects this defendant's arguments that RCRA §§3002, 3004, and 3005 are mere enabling provisions with no substantive provisions and that ownership and operation of the landfill are prerequisites to liability. The court holds that plaintiffs have sufficiently alleged ongoing violations. The court holds that Kentucky's intervention does not constitute diligent prosecution under RCRA §7002(b)(1)(B) and thus does not preclude plaintiffs from continuing their suit. The court holds that landowners whose land adjoins property with groundwater contamination have standing to sue under RCRA §7003.

The court holds that CERCLA, RCRA, and the FWPCA preempt the federal common law of nuisance. The court dismisses plaintiffs' pendent state claims, since these claims require consideration of the state of mind and emotional status of each plaintiff, considerations which are irrelevant to the federal statutory claims. The court declines to dismiss plaintiffs' claims for equitable relief for their alleged failure to join an indispensable party, since the court has not found that the landfill owner is claiming an interest that may be prejudiced relating to the harm allegedly suffered by the adjoining landowners. The court holds that Kentucky was not required to comply with the 60-day notice provision in CERCLA §112(a), since the state is seeking recovery from responsible parties and not the Superfund. The court holds that the consistency of the state's response costs with the national contingency plan cannot be decided on a motion to dismiss. The court holds that the state is not required to comply with the FWPCA's notice provisions in seeking intervention. The court holds that the state has sufficiently alleged ongoing violations to survive a motion to dismiss the FWPCA claims on statute-of-limitations grounds. The court holds that the state is not required to comply with RCRA's notice provisions in seeking intervention. The court holds that the state's federal common-law nuisance claim is preempted and dismisses the state's pendent state-law claims.

Counsel for Plaintiffs
D. David Altman, Stephen P. Calardo
D. David Altman Co.
Ste. 1006, 414 Walnut St., Cincinnati OH 45202
(513) 721-2180

Dennis Conniff
Kentucky Natural Resources and Environmental Protection Cabinet
Office of General Counsel
Fifth Fl., Capital Plaza Tower, Frankfurt KY 40601
(502) 564-5576

Counsel for Defendant
Mark R. Feather
Brown, Todd & Heyburn
1600 Citizens Plaza, Louisville KY 40202-2802
(502) 589-5400

Opinion

This matter is before the Court on defendants' motions to dismiss. Defendants BASF Corp., Inmont Division and Container Corporation of America (CCA), have filed motions to dismiss plaintiffs' and intervening plaintiff's complaint. Westinghouse Electric has incorporated and adopted these motions.