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United States v. Solvents Recovery Serv. of New England

ELR Citation: 10 ELR 20796
Nos. No. H79-704, 496 F. Supp. 1127/14 ERC 2010/(D. Conn., 08/20/1980)

The court concludesthat a claim based on §7003 of the Resource Conservation and Recovery Act (RCRA), the "imminent and substantial endangerment" provision, states a cause of action under the federal common law of nuisance in a suit to remedy groundwater pollution caused by the storage and disposal of hazardous wastes. The federal government's lawsuit alleged that defendants' activities were responsible for the contamination of underground wells used for drinking water and sought injunctive relief as well as cleanup measures. The court denies defendants' motion to dismiss the claim based on §7003, finding that it states a cause of action for injunctive relief. The court notes that while §7003 does not create new substantive standards on which liability can be determined, it does establish a jurisdictional basis and an enforcement device for a suit based on the federal common law of nuisance. The court rejects defendants' argument that plaintiff's federal common law of nuisance claim is defective for lack of an allegation of interstate pollution. The requisite federal interest in remedying groundwater pollution is shown by Congress' enactment of RCRA. Second, the court finds that §7003 does not require an allegation of continuing acts of disposal because the focus of the statute is on remedying certain dangerous conditions rather than the cessation of particular conduct. Third, the court concludes that since §7003 does not create new substantive obligations, it is not susceptible to the charge of retroactive application. Rather, it is merely a jurisdictional and remedial statute, and substantive obligations are created by the federal common law of nuisance. Finally, the court rejects defendants' motion to strike the affirmative relief sought beyond the injunctive relief because the additional remedial relief is, as a matter of law, not authorized by the Act.

Counsel for Plaintiff
Frank H. Santoro, Ass't U.S. Attorney; Richard Blumenthal, U.S. Attorney
P.O. Box 1824, New Haven CT 06508
(203) 432-2108

Erica L. Dolgin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5485

Counsel for Defendants
Michael J. Rodburg, Gerald Krovatin
Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan
65 Livingston Ave., Roseland NJ 07068
(201) 992-8700

Robert L. Wyld, Thomas D. Clifford
Shipman & Goodwin
799 Main St., Hartford CT 06103
(203) 549-4770

Robert H. Hall
43 Main St., Newtown CT 06470
(203) 425-8177

Rolland Castleman, Stanley Falkenstein
Lessner, Rottner, Karp & Plepner
364 Middle Tpke. W., Manchester CT 06040
(203) 649-5277

Counsel for Amici Curiae and Applicants for Intervention
Austin Carey Jr.
Hoppin, Carey & Powell
266 Pearl St., Hartford CT 06103
(203) 249-6891

Peter Cooper
Sosnoff, Cooper, Whitney & Cochran
250 Church St., New Haven CT 06508
(203) 787-5821

Daniel Millstone
Connecticut Fund for the Environment, Inc.
152 Temple St., New Haven CT 06510
(203) 787-0646

David P. Kelley
Thalberg & Kelley
25 Berlin Ave., Southington CT 06409
(203) 628-9617