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Feikema v. Texaco, Inc.

ELR Citation: 24 ELR 20791
Nos. No. 93-1649, 16 F.3d 1408/38 ERC 1289/(4th Cir., 03/03/1994, 03/21/1994)

The court holds that the Resource Conservation and Recovery Act (RCRA) and a U.S. Environmental Protection Agency (EPA) consent order preempt homeowners' state-law nuisance and trespass claims for injunctive relief regarding, but not for damages arising out of, pollution of their property from defendant's petroleum distribution terminal. The court first holds that although the claims arise from a single cause, the homeowners must demonstrate the jurisdictional basis and allege the necessary amount in controversy individually, and grants them leave to amend their complaint for that purpose. The court next holds that RCRA does not preempt the field of hazardous waste removal. RCRA contains no provision mandating comprehensive preemption of all state laws, nor is the regulatory scheme so comprehensive as to leave no room for the states to act. Rather, RCRA envisages a cooperative effort among federal, state, and local governments and allows states to run their own waste management programs. The court next holds that EPA's imminent hazard authority under RCRA §7003 does not conflict with state-law nuisance and trespass actions in the absence of EPA action. The court holds, however, that when EPA issues a valid consent order under RCRA, that order will preempt conflicting state regulation, including federal court orders based on state common law. Because the injunctive relief requested by the plaintiffs would conflict with the remedial measures selected by EPA in its consent order to the petroleum company, the court holds that the injunctive relief claims are preempted. The court holds that the homeowners properly made and did not waive claims for damages, and that RCRA does not preempt those claims. State-law damages claims are not necessarily preempted by federal statutes that regulate the same field, and moreover, allowing damages does not conflict with the consent order in this case.

Counsel for Plaintiffs
Mark P. Friedlander Jr.
Friedlander & Friedlander
2018 Clarendon Blvd., Arlington VA 22201
(703) 525-6750

Counsel for Defendants
Richard E. Wallace Jr.
Howrey & Simon
1299 Pennsylvania Ave. NW, Washington DC 20004
(202) 783-0800