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Brandywine Indus. Paper, Inc. v. Chemical Leaman Tank Lines, Inc.

ELR Citation: 29 ELR 20391
Nos. No. CIV.A.97-CV-8121, (E.D. Pa., 12/10/1998)

The court dismisses a property owner's Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Federal Water Pollution Control Act (FWPCA), and state-law claims against its neighbor for allegedly contaminating the property owner's land. The court first holds that it lacks diversity jurisdiction. Because both parties are Pennsylvania corporations, complete diversity of citizenship is absent. Next, the court dismisses the property owner's RCRA claim. The property owner did not satisfy the RCRA notice requirement for citizen suits because it did not send the state environmental agency a notice letter within the requisite time. Although the property owner sent the state agency a notice letter after bringing suit, the failure to comply with the timing of notice requirements is incurable.

The court then dismisses the property owner's CERCLA and FWPCA claims. The property owner's notice letter does not provide the U.S. Environmental Protection Agency or the state agency with enough information to decide whether to take an enforcement action and does not provide the neighbor with enough information to bring itself into compliance. By neither mentioning the FWPCA nor providing an average general range of the dates of the alleged FWPCA and CERCLA violations, the property owner's notice letter fails to meet even the minimum content requirement standard. Although specific dates of alleged violations are not necessary for adequate notice, a discrete specific time frame is necessary.

Last, the court declines to exercise its supplemental jurisdiction and decide the property owner's state statutory and common-law claims. The federal claims are dismissed, and no affirmative justification for deciding the state claims exists because the court has not expended resources in adjudicating the remaining claims, the state court is equally convenient to the federal court, and the remaining claims are in the early stages of litigation.

Counsel for Plaintiff
Terry Silva
Law Offices of Terry Silva
1429 Walnut St., Ste. 900, Philadelphia PA 19102
(215) 564-0202

Counsel for Defendants
Richard F. Waddington
Willkie, Farr & Gallagher
Three Lafayette Center
1155 21st St. NW, 6th Fl., Washington DC 20036
(202) 328-8000