Jump to Navigation
Jump to Content

Dedham Water Co. v. Cumberland Farms Dairy, Inc.

ELR Citation: 16 ELR 20787
Nos. No. 82-3155-MC, 643 F. Supp. 667/(D. Mass., 01/03/1986) Motion to dismiss granted

The court rules that substantial compliance with the 60-day notice requirements for citizen suits under the Resource Conservation and Recovery Act (RCRA), the Federal Water Pollution Control Act (FWPCA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not sufficient to confer jurisdiction. The court reverses its earlier denial of a motion to dismiss, 14 ELR 20838, in light of a recent First Circuit case, Garcia v. CECOS International, Inc., 15 ELR 20528, holding that failure to provide actual notice in a RCRA citizen suit to the Environmental Protection Agency (EPA), the state, and the alleged violator at least 60 days prior to filing suit precludes jurisdiction. The court first holds that plaintiff's FWPCA citizen suit must be dismissed because substantial compliance with the notice provision in FWPCA §505(b) is not enough. Next, the court holds that the RCRA citizen suit must be dismissed. The 1984 RCRA amendments, which allow filing of a citizen suit immediately after notification to the EPA and prospective defendants, do not relieve plaintiff of the 60-day requirement since subject matter jurisdiction is determined as of the date the action is filed. Finally, the court holds that the CERCLA claim must also be dismissed. The court holds that CERCLA §112's notice requirement is jurisdictional and applies to §107 cost recovery actions as well as to claims under §111.

Counsel for Plaintiff
Thomas F. Holt Jr.
DiCara, Selig, Sawyer & Holt
3 Center Plaza, Boston MA 02108
(617) 523-1800

Counsel for Defendant
Allan van Gestel
Goodwin, Procter & Hoar
Exchange Place, Boston MA 02109
(617) 223-2845