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Walls v. Waste Resource Corp.

ELR Citation: 15 ELR 20438
Nos. No. 84-5287, 761 F.2d 311/22 ERC 1785/(6th Cir., 05/06/1985)

The court rules that neither the Resource Conservation and Recovery Act (RCRA) nor the Federal Water Pollution Control Act (FWPCA) provides a private right of recovery for damages, that the 60-day notice requirements in the citizen suit provision of the two statutes are jurisdictional, and that §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) creates a private right of recovery for response costs. The court first affirms the district court's dismissal of appellants' damage actions under the FWPCA and RCRA, relying on the Supreme Court's holding that there are no implied private rights-of-action for damages under the FWPCA. It next affirms the lower courts' dismissal of appellants' citizen enforcement suits under §505 of the FWPCA and §7002 of RCRA, ruling that the 60-day notice requirements in both provisions are jurisdictional. The statutory language and legislative history make clear that Congress intended the notice requirement to be jurisdiction. The court rules that appellants failed to allege constructive notice with sufficient specificity, but notes that its decision does not bar appellants from filing an amended complaint concerning notice. Finally, the court reverses the district court's dismissal of appellant's CERCLA claims, ruling that §107(a)(4) provides a private right-of-action against responsible parties.

Counsel for Plaintiff
Alan Kanner
1718 Locust St., Philadelphia PA 19103
(215) 546-6661

Counsel for Defendant
James W. Gentry Jr.
Gentry & Boehm
Suite 600, Dome Bldg., Chattanooga TN 37402
(615) 756-5020

William Godbold
Leitner, Warner, Owens, Moffitt, Williams & Dooley
3d Floor, Pioneer Bldg., Chattanooga TN 37402
(615) 265-0214

Before: MERRITT and CONTIE, Circuit Judges; CELEBREZZE, Senior Circuit Judge.