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Davies v. National Coop. Refinery Ass'n

ELR Citation: 27 ELR 20581
Nos. 96-1124-WEB, 963 F. Supp. 990/(D. Kan., 07/12/1906)

The court denies motions to dismiss Resource Conservation and Recovery Act (RCRA) and state-law claims against an oil refinery operator resulting from groundwater contamination in Kansas. Addressing the motion to dismiss the RCRA claim, the court first holds that plaintiffs failed to identify any specific facts showing that an imminent endangerment to health exists. The fact that their well water contains cancer-causing agents only shows that there would be a risk to health if the water were consumed. It does not address the likelihood at present or in the future that human health will be endangered by actual exposure to hazardous waste. Any imminent risk to plaintiffs' health has been diminished by their awareness that their water should not be consumed and any the availability of an alternative water supply. Plaintiffs may, however, be able to show a risk to health with evidence that other persons might be exposed to or ingest the contaminated water. The court next rejects the refinery operator's suggestion that harm to wetlands or aquatic life is required for an endangerment to the environment, because groundwater would have to be considered part of the environment. Because plaintiffs have alleged and may be able to prove that an imminent and substantial endangerment to health or the environment exists, the court denies the motion to dismiss the RCRA claim. Because uncontroverted facts are undefined at this point, the court declines to consider matters outside the pleadings. The court further holds that RCRA §7002(b)(2)(C)(iii), which bars a citizen suit when a state is taking certain action under CERCLA, does not bar plaintiffs' action. There has been no showing that the Kansas Department of Health and Environment is engaging in a removal action under CERCLA §104 or that it is proceeding with a remedial action under CERCLA.

The court next denies motions to dismiss that are based on the doctrines of abstention and primary jurisdiction, because the refinery operator has established none of the prerequisite facts. The court also denies a motion to dismiss that is based on standing. Although the refinery operator contends that plaintiffs' allegations relating to standing are unsupported by the facts, the court refuses to delve into the underlying facts at this stage. Finally, the court holds that it has no basis for declining to exercise supplemental jurisdiction over plaintiffs' state-law claims. The state-law claims are sufficiently related to the RCRA claim that they form part of the same case or controversy, and the court cannot say that the state-law claims will substantially predominate over the RCRA claim. In addition, the court has no basis for concluding that exceptional circumstances and compelling reasons justify dismissal of the state-law claims.

Counsel for Plaintiffs
Charles C. Steincamp
Depew & Gillen
151 N. Main St., Ste. 700, Wichita KS 67202
(316) 265-9621

Counsel for Defendants
Joseph W. Kennedy
Morris, Laing, Evans, Brock & Kennedy
200 W. Douglas, 4th Fl., Wichita KS 67202
(316) 262-2671