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Davis v. Sun Oil Co.

ELR Citation: 27 ELR 20920
Nos. C-3-93-408, 953 F. Supp. 890/(S.D. Ohio, 08/27/1996) res judicata

The court holds that while the purchaser of contaminated property may seek civil penalties against the seller under Resource Conservation and Recovery Act (RCRA) §7002(a), res judicata bars the claim. The court first holds that the purchaser is not entitled to an order granting it restitution for past cleanup costs, because its complaint did not pray for restitution as a form of relief. The court then holds that civil penalties can be imposed on the seller in this lawsuit. RCRA's citizen suit provision explicitly grants district courts the jurisdiction "to apply any appropriate civil penalties under section [3008(a) and (g)] of this title." And courts that have considered the question have concluded that the citizen suit provision permits the imposition of a civil penalty in an action brought by a private party. Res judicata, however, bars the claim because it could have been brought in the purchaser's parallel state court proceeding against the seller. The court holds that the word "shall" in §7002(a) can just as readily be interpreted as a specific venue provision as it can a provision vesting jurisdiction in federal courts. A construction of §7002(a) as a specific venue provision is buttressed by the fact that under 28 U.S.C. §1391, a RCRA action could be brought against a corporation in any district in which it is subject to personal jurisdiction, rather than only in the district in which the alleged violation occurred or the alleged endangerment may occur. Further, when it enacted §7002(a), Congress did not state that federal courts shall have exclusive jurisdiction over citizen suits under the statute, and, therefore, did not affirmatively and expressly revoke concurrent jurisdiction. And the ambiguous context in which the word "shall" is used in §7002(a) does not constitute an explicit withdrawal of the concurrent jurisdiction that state courts presumptively exercise.

[A prior decision in this case is published at 27 ELR 20464.]

Counsel for Plaintiffs
A. Mark Segreti Jr.
Haffey & Segreti
2365 Lakeview Dr., Ste. D, Dayton OH 45431
(513) 429-8595

Counsel for Defendants
David S. Hoffmann
McMahon, DeGulis & Hoffmann
The Caxton Bldg.
812 Huron Rd., Ste. 650, Cleveland OH 44115
(216) 621-1312