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Acme Printing Ink Co. v. Menard, Inc.

ELR Citation: 23 ELR 21061
Nos. No. 89-C-834, 812 F. Supp. 1498/(E.D. Wis., 11/05/1992) motions to dismiss granted in part & denied in part

The court rules that a consent order issued under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §122 does not bar a Resource Conservation and Recovery Act (RCRA) citizen imminent hazard suit about the same site. The plaintiff, a company that is potentially liable for generating waste disposed of at a former landfill, entered into a consent order with the U.S. Environmental Protection Agency (EPA) and the Wisconsin Department of Natural Resources (DNA). Under the consent order, the plaintiff agreed to conduct a remedial investigation and feasibility study. The plaintiff brought suit against other parties allegedly responsible for the site's contamination seeking, inter alia, declaratory relief, an injunction, and civil penalties under RCRA §7002(a)(1)(A) and (B) and declaratory relief, contribution, and an injunction under the CERCLA §§107, 113, and 310.

The court first declines to dismiss the plaintiff's RCRA §7002(a)(1)(B) claim. Although RCRA bars commencement of a §7002(a)(1)(B) action when EPA has issued an administrative order under CERCLA §106 or RCRA §7003, EPA issued the order at issue under CERCLA §122. RCRA also bars commencement of §7002(a)(1)(B) claims when EPA has incurred response costs and is diligently proceeding with CERCLA remedial action. In this case, however, EPA is not diligently proceeding with remedial action beyond conduct of the remedial investigation and feasibility study. The court next holds that RCRA §7002 allows the plaintiff to bring a citizen suit that benefits its private interest, that EPA's and DNR's conduct does not bar the plaintiff's citizen suit because those agencies have not instituted a civil or criminal action against the defendants, and that the availability of contribution under state law does not bar the citizen suit. Next the court rejects the argument that the plaintiffs' RCRA §7002(a)(1)(A) claim, regarding "disposal" of hazardous waste, impermissibly alleges a wholly past RCRA violation. The court holds that RCRA's definition of "disposal"includes continuous leaking of hazardous substances that may be a continuous or intermittent violation of RCRA. The court holds that a RCRA complaint may be based on an allegation that the defendant had authority to control disposal of hazardous waste, without alleging actual control. The court also holds that it is not necessary for the plaintiff's complaint to document service of its §7002(a)(1)(B) claims on the U.S. Attorney General.

Next, the court holds that a private plaintiff may assert a CERCLA §107 claim for recovery of costs of "removal action," even absent an allegation that the plaintiff also incurred costs of "remedial action." Moreover, a remedial investigation and feasibility study qualifies as both removal and remedial action. The plaintiff may maintain a CERCLA §113(f)(1) contribution action since it has alleged the facts necessary to maintain a CERCLA §107(a) action. The plaintiff may maintain a CERCLA §113(g)(2) declaratory judgment action because it stated a claim under §107(a) and because the absence of a government enforcement action does not bar a party from seeking declaratory relief. The court declines to grant summary judgment that the plaintiff can present no evidence that a defendant's waste contained hazardous substances since no discovery had been set in the action at the time the defendant filed its motion.

The court next dismisses various state-law claims against insurance companies. The court rules that it cannot exercise pendent jurisdiction over the plaintiff's state-law insurance claims since the defendant in those claims is not a defendant to any claims based on federal law and 28 U.S.C. §1331 does not authorize pendent party jurisdiction. Although 28 U.S.C. §1367 codifies a rule of "supplemental jurisdiction" that allows pendent party jurisdiction, this case was filed before the December 1, 1990, effective date of that provision. The court dismisses cross-claims against the insurer, finding that no exceptional circumstances exist that would justify retaining ancillary claims following dismissal of plaintiff's claim. The court also notes that, because the cross-claimant is only responsible for the share of costs attributable to its conduct, it has no basis to transfer its liability to the plaintiff's insurers. The court dismisses a counterclaim against another insurance company on the same basis.

Next the court declines to enter default judgments against defendants who failed to answer discovery requests but orders those defendants to answer the discovery within 10 days. Finally, the court addresses the plaintiff's motion to strike testimony of a deceased witness taken at depositions in two proceedings to which the plaintiff was not a party. The court rules that deposition testimony from a state enforcement proceeding is admissible under Federal Rules of Civil Procedure 32(a), since the state had the same interest as the plaintiff in cross-examining the witness. Testimony in another case, however, is inadmissible because the party that conducted the deposition may not have had the same motive as the plaintiff in cross-examining the deponent and the testimony would not be admissible under the federal rules of evidence. Federal Rules of Evidence 804(b)(1) does not apply, since the plaintiff or a predecessor in interest was not represented at the deposition. Federal Rules of Evidence 804(b)(5) does not apply to evidence generically of a type covered by another specific hearsay exception but which fails to meet the precise requirements of that exception.

Counsel for Plaintiff
William S. Roush Jr., Ted A. Warpinski
Friebert, Finerty & St. John
Two Plaza E., 330 E. Kilbourn Ave., Ste. 1250, Milwaukee WI 53202
(414) 271-0130

Counsel for Defendants
Michael D. Fischer, Michael D. Flanagan
Foley & Lardner
Firstar Ctr., 777 E. Wisconsin Ave., Milwaukee WI 53202
(414) 271-2400