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Walls v. Waste Resource Corp.

ELR Citation: 16 ELR 20797
Nos. No. CIV. 2-83-418, (E.D. Tenn., 10/11/1985) On remand

The court adopts in its entirety the magistrate's report recommending that the three-year statute of limitations and the 60-day notice requirement in §112 of the Comprehensive Environmental Response, Compensation, and Liability Act not apply to plaintiffs' private cost recovery action under §107, that plaintiffs' pendent state-law claims should be dismissed without prejudice so that the Tennessee courts can resolve important questions of state law and that plaintiffs' claims under the Resource Conservation and Recovery Act (RCRA) and the Federal Water Pollution Control Act (FWPCA) should be dismissed for failure to give formal notice 60 days before filing suit. The magistrate first holds that §112's three-year statute of limitations does not apply to cost recovery actions brought by the government under §107(a)(4)(A) or by private parties under §107(a)(4)(B). It applies only to claims against the Superfund pursuant to §111 and actions for natural resources damages under §107(a)(4)(C). The magistrate holds that the 60-day notice provisions in §112(a) apply only to claims against the Superfund, not to suits against private parties. Also, whether plaintiffs' response costs are consistent with the national contingency plan is a question of fact that cannot be resolved on summary judgment. The magistrate next holds that plaintiffs' pendent state-law claims should be dismissed without prejudice and recommends that plaintiffs be required to litigate these important questions of Tennessee law in state court. Although the state court granted summary judgment for the defendants, the order is interlocutory and the case is still pending. Finally, the magistrate recommends that plaintiff's RCRA and FWPCA citizen suits be dismissed for failure to allege actual notice to the defendants 60 days before filing suit. The magistrate holds that actual notice is required under RCRA §7002(b)(1) and FWPCA §505(b)(1). Allegations that defendants have been on constructive notice since plaintiffs filed their state court suit do not qualify as actual notice.

[A related decision appears at 15 ELR 20438.]

Counsel for Plaintiffs
Allan Kanner
Allan Kanner & Assoc.
1616 Walnut St., Philadelphia PA 19103
(215) 546-6661

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