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18 ELR 21498 | Environmental Law Reporter | copyright © 1988 | All rights reserved Lykins v. Westinghouse Electric Corp.No. 85-508 (E.D. Ky. February 29, 1988)The court grants in part and denies in part defendants' motion to dismiss an action brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), and the Federal Water Pollution Control Act (FWPCA) by residents and landowners against companies that allegedly generated and transported hazardous waste that contaminated a nearby landfill. The court first holds that plaintiffs need not obtain prior governmental approval of their response costs before seeking recovery from defendants under CERCLA, since prior governmental approval is only required when response costs are sought from the government. The court holds that medical expenses and relocation costs are response costs under CERCLA. The court holds that plaintiffs are not required to complete the cleanup prior to filing suit under CERCLA, but only must incur some response costs. The court holds that plaintiffs' failure to give the 60-day notice required under FWPCA § 505(b) to two defendants requires dismissal. Plaintiffs' filing of an amended complaint does not cure the defective notice. The court holds that plaintiffs' allegations of current FWPCA violations against a third defendant that received proper notice are sufficient to survive a motion to dismiss, although plaintiffs did not allege that pollutants are being discharged from a point source. The court holds that this defendant is not entitled to dismissal of the FWPCA claims based on its assertion that it was an innocent off-site generator that neither owned or controlled the landfill, since plaintiffs have alleged that defendant discharged hazardous materials in violation of FWPCA § 307. The court holds that plaintiffs have sufficiently alleged ongoing violations. The court holds that plaintiffs' failure to give the 90-day notice required under RCRA § 7002(b) to two defendants requires dismissal. Plaintiffs' filing of an amended complaint does not cure the defective notice. The court refuses to dismiss the RCRA claims against a third defendant that received proper notice. The court rejects this defendant's arguments that RCRA §§ 3002, 3004, and 3005 are mere enabling provisions with no substantive provisions and that ownership and operation of the landfill are prerequisites to liability. The court holds that plaintiffs have sufficiently alleged ongoing violations. The court holds that Kentucky's intervention does not constitute diligent prosecution under RCRA § 7002(b)(1)(B) and thus does not preclude plaintiffs from continuing their suit. The court holds that landowners whose land adjoins property with groundwater contamination have standing to sue under RCRA § 7003. The court holds that CERCLA, RCRA, and the FWPCA preempt the federal common law of nuisance. The court dismisses plaintiffs' pendent state claims, since these claims require consideration of the state of mind and emotional status of each plaintiff, considerations which are irrelevant to the federal statutory claims. The court declines to dismiss plaintiffs' claims for equitable relief for their alleged failure to join an indispensable party, since the court has not found that the landfill owner is claiming an interest that may be prejudiced relating to the harm allegedly suffered by the adjoining landowners. The court holds that Kentucky was not required to comply with the 60-day notice provision in CERCLA § 112(a), since the state is seeking recovery from responsible parties and not the Superfund. The court holds that the consistency of the state's response costs with the national contingency plan cannot be decided on a motion to dismiss. The court holds that the state is not required to comply with the FWPCA's notice provisions in seeking intervention. The court holds that the state has sufficiently alleged ongoing violations to survive a motion to dismiss the FWPCA claims on statute of limitations grounds. The court holds that the state is not required to comply with RCRA's notice provisions in seeking intervention. The court holds that the state's federal common law nuisance claim is preempted and dismisses the state's pendent state law claims. Counsel for Plaintiffs Dennis Conniff Counsel for Defendant This matter is before the Court on defendants' motions to dismiss. Defendants BASF Corp., Inmont Division and Container Corporation of America (CCA), have filed motions to dismiss plaintiffs' and intervening plaintiff's complaint. Westinghouse Electric has incorporated and adopted these motions. Defendants moved the Court to dismiss private plaintiffs' second amended complaint under Rules 12(b)(1), 12(b)(6) and 19, Fed. R. Civ. P. Defendants asserts that their motion should be granted because the plaintiffs have failed to allege a compensable claim under the language of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601, the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251, or the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6901. Furthermore, they allege that as each of these statutes has preempted plaintiffs' federal common claims for nuisance, plaintiffs' pendent state claims should be dismissed as well. Defendants also moved to dismiss plaintiffs' claims for equitable relief for failure to join an indispensable party. In a separate motion, defendants moved to dismiss the Commonwealth of Kentucky, Cabinet of Natural Resources and Environmental Protection (State). Defendants assert that the State's complaint fails to state a claim under CERCLA. Defendants argue that this Court is without jurisdiction over plaintiff's CERCLA, FWPCA and RCRA claims. Defendants finally argue that plaintiff fails to state a claim under the federal common law of nuisance and its pendent claims are barred by the statute of limitations. On December 3, 1985, a group of private plaintiffs brought a twelve-count complaint against defendants, seeking declaratory and injunctive relief, statutory response costs, and common law compensatory damages for harm resulting from defendants' intentional depositing of chemical wastes at a landfill site in Laurel County, Kentucky. Private plaintiffs seek recovery of statutory response costs under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (CERCLA). They also seek equitable relief under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (RCRA), and the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (FWPCA). Finally, private plaintiffs seek equitable relief and common law damages pursuant to strict liability, negligence, trespass, negligence per se, nuisance, fraud and deceit, outrageous conduct, infliction of emotional distress and federal common law of nuisance. The State has intervened as a plaintiff alleging identical counts. Plaintiffs are residents and landowners whose property and houses are located in the Slate Lick area in the vicinity of a site known as the G. C. Singleton Landfill (Landfill). Plaintiffs maintain that defendant Inmont's plant in Cincinnati, Ohio, generated chemical waste and contracted with Defendant CCA to transport the waste to London where it was deposited at the Landfill. Plaintiffs allege that defendants' disposal was illegal and purposely concealed the illicit disposal from government officials. Plaintiffs allege that substances leached from the Landfill and moved into the surface and groundwaters. These substances then made their way to the private plaintiffs' property, contaminating their drinking and surface water. Plaintiffs contend that these substances harmed their animals and their personal health. Plaintiffs seek to recover past and future costs and damages allegedly incurred in connection with the Landfill. Defendant Westinghouse operates a plant near London. Plaintiffs allege that Westinghouse generated and caused large quantities of toluene and other industrial wastes to be disposed of at the Landfill site. Plaintiffs maintain that the waste dumped at the site has leached, escaped and been released from the dump, causing the private plaintiffs to incur response costs, suffer physical and emotional injury and property damage. Defendants argue that the Court lacks subject matter jurisdiction over private plaintiffs and that private plaintiffs have failed to state a claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Plaintiffs argue that by pleading that they have incurred specific and identifiable response costs consistent with the National Contingency Plan (NCP) in response to the release or threat of release of hazardos substances, they have alleged the facts necessary to bring a CERCLA action. CERCLA authorizes remedial action by the President to such hazardous substance, pollutant, or contaminant necessary to protect the public health and welfare or the environment consistent with the NCP. 42 U.S.C. § 9604(a)(1). CERCLA is designed to facilitate the prompt clean-up of hazardous material by providing a means of financing both government and private actions and by placing the ultimate financial burden upon those responsible for the danger. City of Philadelphia v. Stephan, 544 F. Supp. 1135, 1142 [12 ELR 20915] (E.D. Pa. 1982). Section 107 of CERCLA assigns liability for the release of hazardous waste: Any person who . . . owned or operated any facility at which such hazardous substances were disposed of . . . shall be liable for any other necessary cost of response incurred by any other person consistent with the National Contingency Plan. . . . CERCLA's liability provisions permit the government to recover all costs of removal or remedial action incurred by it consistent with the NCP. 42 U.S.C. § 9607(a)(4)(A). The National Contingency Plan (NCP) is found in 40 C.F.R. § 300 et seq. It was promulgated by the Environmental Protection Agency pursuant to delegated authority from the President to establish guidelines for appropriate responses to environmental hazards. 40 C.F.R. § 300.1. Any issue of private plaintiffs' right to bring and maintain this action under CERCLA can be easily disposed of. Section 9607(a)(4)(B) clearly permits private actions to recover costs from responsible parties. Walls v. Waste Resource Corp., 761 F.2d 311 [15 ELR 20438] (6th Cir. 1985); Jones v. Inmont Corp., 584 F. Supp. 1425 [14 ELR 20485] (S.D. Ohio 1984). Furthermore, the sixty-day notice provision of Section 9612(a) does not apply to private actions for the recovery of response costs. Walls v. Waste Resource Corp., 823 F.2d 977 [17 ELR 20954] (6th Cir. 1987). However, under this section private plaintiffs must meet a more rigorous evidentiary burden before recovery of costs will be granted. Peters v. E.P.A., 767 F.2d 263, 266 (6th Cir. 1985). Defendants argue that plaintiffs' cost recovery claims fail to comply with provisions of the NCP. Specifically, defendants argue that plaintiffs have not alleged facts to establish that any steps consistent with the Regulations have been met. However, plaintiffs are correct when they argue that CERCLA does not require that they incur cleanup costs or that cleanup action be underway before a party may take response action and recover costs. Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887 [16 ELR 20754] (9th Cir. 1986). Whether this case is ripe for judicial review pivots on whether governmental approval must first be obtained. There is a split of authority in the District Courts concerning whether plaintiffs must first obtain government approval from the federal or state government of their response costs before seeking recovery from persons made responsible under CERCLA. Some courts have held that governmental approval of the private party's plan for cleaning up the hazardous wastes is necessary prior to bringing suit. See, e.g., Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F. Supp. 1437 [15 ELR 20151] (S.D. Fla. 1984). But see, e.g., Wickland, supra; Fishel v. Westinghouse Electric Corp., 617 F. Supp. 1531 [16 ELR 20001] (M.D. Pa. 1985); Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F. Supp. 283 [15 ELR 20173] (N.D. Cal. 1984). This Court adopts the well reasoned opinion in Fishel to be the better view. The responsible parties, not the government, have the burden of cleaning up hazardous waste sites. Prior governmental approval is required in the Act when reimbursement for response costs is sought from the government. Wickland, supra at 892; Fishel, supra at 1535; 42 U.S.C. § 9611(a)(2); 40 C.F.R. § 300.61(e). As no response costs are being sought by private plaintiffs from the government, no prior governmental approval is necessary for their response costs. Defendants next contend that plaintiffs have not sufficiently alleged that they have incurred any response costs within the meaning of CERCLA. Defendants maintain that plaintiffs' claimed medical expenses and relocation costs are not response costs within the meaning of the statute. Under Section 9607(a)(4)(B), a party may recover "response costs," which include such costs as medical testing and loss of use of wells for drinking water. These costs must be part of a "clean up" or response to a hazardous waste problem, however, and a private right of action for damages only is not available under the Act. Adams v. Republic Steel Corp., 621 F. Supp. 370 (W.D. [18 ELR 21500] Tenn. 1985). Plaintiffs argue that relocation costs are within the meaning of the statute. The word "response" is defined in the Act only as "remove, removal, remedy and remedial action," 42 U.S.C. § 9601(25). Subsection (23) of this section has been defined as follows: Remove and removal to include actions necessary to clean up or remove hazardous substances, to monitor, assess and evaluate a release and to dispose of removal material or to prevent, minimize or mitigate damages to the public or the environment. Jones v. Inmont Corp., 584 F. Supp. 1425, 1429 [14 ELR 20485] (S.D. Ohio 1984). It is logical that relocation may be a necessary action by private citizens to prevent, minimize or mitigate the danger to themselves. Consequently, such costs incurred would be in response to the hazardous waste problem. United States v. Southeastern Pennsylvania Transport Authority, 24 ERC 1860, 1863 [17 ELR 20001] (E.D. Pa. 1986). Other response costs which are recoverable under CERCLA include but are not limited to: litigation costs; monitoring; assessing and evaluating expenses; future response costs consistent with the NCP; investigation costs; property damage; and supervision costs. New York v. Shore Realty, 22 ERC 1625 [15 ELR 20358] (2d Cir. 1985); Artesian Water Company v. Government of New Castle, 605 F. Supp. 1348 [15 ELR 20577] (D. Del. 1985); United States v. NEPACCO, 579 F. Supp. 823 [14 ELR 20212] (E.D. Mo. 1984); Velsicol Chemical Corp. v. Reilly Tar and Chemical Corp., 21 ERC 2118 [15 ELR 20103] (E.D. Tenn. 1984); Pinole Point v. Bethlehem Steel Co., supra at 292. It would be premature for this Court to attempt to decide whether plaintiffs are entitled to recover any damages that would meet the CERCLA definition of response costs. In light of the present procedural posture of the case, however, it cannot say, as a matter of law, that the plaintiffs are not so entitled. The defendants also assert that the plaintiffs' CERCLA claim must be dismissed because their response costs are inconsistent with theNCP. As previously stated, plaintiffs' allegations of incurring response costs consistent with the NCP must be accepted as true until development of the factual record. Cruz v. Beto, 405 U.S. 319, 322 (1972). The national contingency plan is a means to assure that response actions are both cost-effective and environmentally sound. Jones, supra at 1430. Defendants next argue that private plaintiffs' anticipated expenses are not sufficient to support a CERCLA action. Defendants maintain that CERCLA permits private parties to recover costs expended. Defendants argue that the plaintiffs' mere allegations of incurring future costs in compliance with the NCP does not relieve them of the obligation to perform sufficient initial steps to qualify for cost-recover action. Several courts have addressed and rejected this position. To require a private party to complete cleanup prior to filing suit would defeat the dual purposes of CERCLA to promote rapid response to hazardous situations. Therefore, as plaintiffs' complaint does allege that they have already incurred some portion of the response costs necessary to clean up the site, the controversy is sufficiently real to allow the Court to determine defendants' liability for future costs as well. Jones, supra at 1430. Defendants argue that in order for costs to be recoverable, response and remedial actions must be consistent with the revised NCP. Plaintiffs argue that all courts have rejected this argument. Statutes are usually presumed not to operate retroactively. United States v. Security Industrial Bank, 459 U.S. 70 (1982). Plaintiffs can recover response costs later determined to be consistent with the NCP. United States v. Shell Oil Company, 605 F. Supp. 1064, 1074 [15 ELR 20337] (D. Colo. 1985). The Court finds plaintiffs have alleged sufficient facts to warrant a finding that a claim has been stated "arising under" CERCLA. To the extent that plaintiffs may have suffered actual injury that may be remedied by an award of response costs, it cannot be said that their claim is immaterial or wholly insubstantial. Accordingly, subject matter jurisdiction exists under 28 U.S.C. § 1331 for plaintiffs' CERCLA claims against all defendants. Defendants next argue that the Court should dismiss plaintiffs' claims under the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251 et seq. Plaintiffs allege that defendants violated 33 U.S.C. §§ 1322(a), 1317, and 1342 of the Act. In support of their motion to dismiss, defendants first argue that the Court lacks jurisdiction over plaintiffs' claims because the notice provision of the FWPCA was not strictly followed. Plaintiffs argue that no notice requirement exists under the FWPCA because of the hazardous waste allegedly involved, and, if it does, proper notice was given to Westinghouse on September 17, 1985, which can be imputed to the other defendants. Thus plaintiffs claim that notice to defendant should be constructive notice to the other defendants. If this argument is accepted, proper notice was given well in advance of the initial filing of their complaint on December 3, 1986, and subsequent amended complaint on January 27, 1986. Furthermore, plaintiffs argue, if any defect in notice occurred, the subsequent amended complaint cured all such defects. The Court disagrees with each of plaintiffs' assertions. FWPCA citizen suits allow private causes of action for injunctive relief, and contain provisions which limit the role of the private citizen suit by foreclosing private suit until the EPA has had an opportunity to act first. The FWPCA notice provision states in pertinent part: No action may be commenced . . . (1) Under subsection (a)(1) of the section . . . (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order. . . . The Supreme Court has demanded strict adherence to statutory provisions for citizens' suits in environmental litigation. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 [11 ELR 20684] (1981) (plaintiffs must comply with specified procedures including the sixty-day prior notice to potential defendants). Compliance with the sixty-day notice requirement is a jurisdictional prerequisite to bringing suit against private defendants under FWPCA. Walls v. Waste Resource Corp., 761 F.2d 311 [15 ELR 20438] (6th Cir. 1985). In this case, plaintiffs sent letters to defendants Inmont and CCA on November 22, 1985, informing them of their intent. This was merely seventeen days before filing suit on December 3, 1985. Although plaintiffs argue that this notice defect was cured by the subsequent filing of an amended complaint, this is clearly not correct. The mere filing of a supplemental or amended complaint to cure defective notice cannot restore the sixty-day non-adversarial period to the parties. Garcia v. Cecos Int'l Inc., 761 F.2d 76, 82 [15 ELR 20528] (1st Cir. 1985); National Wildlife Federation v. Consumers Power Co., 657 F. Supp. 989, 998 [17 ELR 20801] (W.D. Mich. 1987). Therefore, the complaint should be dismissed against defendants Inmont and CCA for plaintiffs' failure to comply with the statute's notice requirement. As the statute requires notice to all alleged violators, the plaintiffs' notice to defendant Westinghouse does not impute notice to the remaining defendants. However, as proper notice appears to have been given to Westinghouse, the Court will now address the remaining points raised by Westinghouse for dismissing Count II of plaintiffs' complaint. Defendant Westinghouse argues that plaintiffs have failed to allege discharge from a point source as required by the statute. Defendant argues that plaintiffs have generally alleged that natural conditions at the site have allowed surface pollutants to migrate into the ground water and run-off into a local stream. Plaintiffs respond that they have sufficiently alleged that defendant Westinghouse violated Section 1311 of the Act by discharging pollutants from a point source without a permit. The term "point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture. See 33 U.S.C. § 1362(14). Upon review of plaintiffs' complaint alleging violation of the Federal Water Pollution Control Act, the Court fails to find any alleged point source from which the pollutants are being discharged. However, plaintiffs do allege continuing discharges into the waterways. Defendant cites Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392 [15 ELR 20385] (5th Cir. 1985), in support of [18 ELR 21501] its proposition that the lack of a point source is grounds for dismissal. However, dismissal of plaintiff's FWPCA's claim in Hamker was based upon its failure to allege any current violations of the Act. As plaintiffs have alleged current violations and although the point source is ambiguous, the proper disposition of this issue is one for summary judgment, not in a motion to dismiss. See Sierra Club v. Shell Oil Co., 817 F.2d 1169 [17 ELR 20767] (5th Cir. 1987). Defendant Westinghouse next argues that the FWPCA does not apply to generators or transporters of waste. Defendant maintains that as it neither owns nor operates the Landfill it could not have discharged pollutants. Plaintiffs maintain that Section 1311(a) applies to any person who discharges pollutants from a point source and that defendant's conduct amounts to control and operation of a hazardous waste disposal facility. Defendant also contends that plaintiffs have failed to allege an effluent standard or limitation. Plaintiffs argue they have done such. Effluent standards and limitations include all unlawful acts under Section 1311, such as the unlawful act of discharging pollutants without a permit. United States v. East Kentucky Beverage Co., 24 ERC 1187 (E.D. Ky. 1985), held the discharge of a pollutant by any person without a permit is an unlawful act under Section 1311(a), and, therefore, a violation of an effluent standard or limitation for which a citizens' suit may be filed. As plaintiffs have specifically alleged that defendants discharged hazardous materials as to cause an imminent and substantial endangerment, such conduct, if proved, violates the standards under Section 1317. Plaintiffs allege defendant acted through its agents in disposing of the chemicals at the Landfill. For Westinghouse to be considered an "innocent off-site generator" under FWPCA, sufficient facts must be presented in the record to establish such status. For purposes of this motion, plaintiffs have sufficiently alleged that they have actual knowledge of the unlawful practice and are entitled to present evidence establishing that fact. Defendant Westinghouse next argues that plaintiffs are attempting to seek damages under FWPCA which they are prohibited from recovering. Clearly, plaintiffs are prohibited from recovering general damages under FWPCA. Middlesex City Sewerage Authority v. National Association of Sea Clammers, 453 U.S. 1 [11 ELR 20684] (1980). However, plaintiffs do not contest defendant's contention. Rather, they argue no claim for damages is being sought under FWPCA. Instead, plaintiffs seek injunctive relief, which is permissible under the Act. See Middlesex, supra; Walls v. Waste Resources, 761 F.2d 311 [15 ELR 20438] (6th Cir. 1985). Defendant Westinghouse argues that plaintiffs cannot seek imposition of penalties for past violations of FWPCA. Plaintiffs respond that defendant's discharges are ongoing. Accordingly, the factual allegations of the complaint and any accompanying affidavits must be taken as true. Cruz v. Beto, 405 U.S. 319, 322 (1972); Gardner v. Toilet Goods Ass'n, 394 F.2d 57, 59 (6th Cir. 1968). Moreover, the pleadings are to be liberally construed in favor of the pleader. Scheurer v. Rhodes, 416 U.S. 232, 236 (1974). Plaintiffs should be given the opportunity to prove their case and establish that defendant's discharges are ongoing. Finally, defendant Westinghouse argues that plaintiffs' action is time-barred by the five-year statute of limitations. It argues that the most recent act alleged to have occurred was in 1977, some eight years before filing the complaint. Again, plaintiffs reiterate that defendant's discharges are ongoing. The Court does find that the five-year statute of limitations contained in 28 U.S.C. § 2462 applies to citizens' suits under the FWPCA for past violations. See National Wildlife Federation v. Consumers Power Co., 657 F. Supp. 989, 1010 [17 ELR 20801] (W.D. Mich. 1987). Based on the above cited authority, plaintiffs should be given the opportunity to establish their case and prove defendant's discharges are continuing and, if not, when such discharges terminated. If plaintiffs fail to establish such discharges are ongoing, defendant may pursue an appropriate remedy through summary judgment. Based upon the foregoing analysis, defendant Westinghouse's motion to dismiss plaintiffs' FWPCA claims should be denied. Defendants have moved the Court to dismiss plaintiffs' Resource Conservation and Recovery Act (RCRA) claims for failure to comply with the Act's notice provisions contained in 42 U.S.C. § 6972. Plaintiffs responded that notice is not necessary for actions involving hazardous waste and if notice is required, such defects were cured by filing the amended complaint. These are the same arguments presented in the Court's FWPCA's analysis. The Court adopts that same analysis here as well. The pertinent statute reads in part, No action may be commenced under subsection (a)(1)(A) of this section prior to ninety days after plaintiff has given notice of the endangerment to . . . (iii) any person alleged to have contributed or to be contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in subsection (a)(1)(B) of this section. As previously mentioned, the Supreme Court has required strict adherence to statutory provisions for citizens' suits in environmental litigation. Middlesex, supra; Walls, supra at 316; Garcia, supra at 81. Although plaintiffs argue that hazardous waste waives the notice provisions, it is not clear that defendants' alleged conduct and the chemicals present at the Landfill constitute hazardous waste as contemplated by the statute. See Fishel v. Westinghouse Electric Corp., 640 F. Supp. 442 [16 ELR 20634] (M.D. Pa. 1986). As the Court has previously discussed, the filing of the amended complaint did not cure the notice defect against defendants Inmont and CCA. Thus, the complaint should be dismissed against those defendants. Defendant Westinghouse, however, appears to have received proper notice and for that reason the Court will address the remaining arguments for dismissal concerning Westinghouse only. Defendant Westinghouse argues that plaintiffs have failed to state a claim under RCRA. Defendant argues that 42 U.S.C. §§ 6922, 6924 and 6925 are mere enabling provisions which contain no substantive provision which it could have violated. They further argue that these regulations were not implemented until November 19, 1980, long after the alleged violations occurred. Finally, defendant maintains that Section 6924 must be dismissed because defendant is not the owner nor the operator of the Landfill. Plaintiffs respond that the alleged violations are ongoing, thus retroactivity of the regulations is not applicable. Plaintiffs maintain that defendant engaged in conduct whereby it concealed the existence of its disposal practices at the site. The Court rejects defendant's contention that these statutes are mere enabling provisions of the Act. Each statute authorizes the Administrator to promulgate regulations requiring compliance with the Act. See 42 U.S.C. §§ 6922, 6924 and 6925; Jones v. Inmont Corp., 584 F. Supp. 1425 [14 ELR 20485] (S.D. Ohio 1984). Furthermore, the Court has previously rejected defendant's argument that ownership and operation of the Landfill is a prerequisite to liability. Defendant Westinghouse next argues that Section 6945 was not effective when the alleged violations took place. However, as plaintiffs' complaint alleges present violations by defendant and as the effective date of the statute was March 1980, if such allegations are true, defendant would be liable under Section 6945. Once again, factual evidence must be presented to establish if the discharges are ongoing and, if not, when such terminated. Defendant Westinghouse next argues that 42 U.S.C. § 6972 does not authorize plaintiffs' action. The statute permits two types of actions: first, for violations of any permit, standard, regulation, condition, requirement, prohibition or order which has become effective under (a)(1)(A) of this section; second, for an imminent and substantial endangerment to the health or the environment. Defendant argues that it is not liable under either subsection. The Court disagrees. As the Court has stated throughout its Memorandum, plaintiffs allege ongoing violations. Consequently, the effective date of the statutes makes them applicable to current violations regardless of when the alleged violations commenced. Defendant argues that because the State is diligently prosecuting this action, plaintiffs are now precluded from continuing with their private claims. The Court rejects this argument as well. The statute provides that: No action may be commenced under subsection (a)(1)(A) of this section . . . if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action under this section respecting a violation of subchapter III of this chapter. The plain language of the statute indicates that a private action is barred if the government, prior to the private action being filed, has commenced its own prosecution. This section merely prohibits dual judicial proceedings against the same defendant if it was initially commenced by the government. Simply because the Commonwealth of Kentucky intervened after private plaintiffs commenced their action does not bar this Court's jurisdiction over private plaintiffs' action. Proffit v. Commissioners, Township of Bristol, 754 F.2d 504, 506 [15 ELR 20209] (3d Cir. 1985). Defendant Westinghouse next argues that Section 6973 of the Act does not allow for private causes of action. This is an incorrect assertion. Landowners whose land adjoins property which has experienced groundwater contamination have standing to assert claims under RCRA. Fishel, supra. For the reasons expressed above, defendant Westinghouse's motion to dismiss plaintiffs' FWPCA claims should be denied. Federal Common Law of Nuisance Defendants move the Court to dismiss plaintiffs' fourth count alleging defendant's conduct constituted a nuisance under federal common law. Plaintiffs in conjunction with their allegations that defendants violated federal environmental laws also allege that defendants created a public nuisance cognizable under federal common law. Defendants maintain that this count should be dismissed because CERCLA, FWPCA and RCRA preempted all common law claims arising under the same facts. Plaintiffs argue that the common law action should remain to fill certain gaps which remain within the regulatory program. The Court disagrees. In determining whether a federal statute preempts common law causes of action, the relevant inquiry is whether the statute directly addresses the question otherwise answered by federal common law. County of Oneida v. Oneida Indian Nation, 470 U.S. 227, 236 (1985); Milwaukee v. Illinois, 451 U.S. 304, 315 [11 ELR 20406] (1981). The Supreme Court has held that federal common law is used as a necessary expedient when Congress has not spoken to a particular issue. Milwaukee, supra at 313-14. CERCLA, FWPCA and RCRA establish an elaborate system for dealing with the problem of environmental pollution, providing for enforcement of its terms by agency action and citizen suits along with civil penalties. This congressional creation of a comprehensive regulatory program precludes this Court from maintaining a competing scheme of common law remedies. Id. at 314. Accordingly, the Court finds that plaintiffs' rights under federal common law have been preempted by the passage of CERCLA, FWPCA and RCRA. See Buckeye Sugars, Inc. v. Commodity Credit Corp., 744 F.2d 1240 (6th Cir. 1984). Congress established a comprehensive program in CERCLA, FWPCA and RCRA for the long-range policy for the elimination of environmental pollution. The courts should not attempt to improve legislation drafted to address problems arising from environmental violations. Milwaukee v. Illinois, 451 U.S. 304, 317-19 (1981). Defendants' motion to dismiss plaintiffs' common law claim for nuisance should be granted. Finally, plaintiffs have filed pendent state claims alleging common law strict liability, trespass, negligence, nuisance, negligence per se, common law fraud and deceit, and infliction of emotional distress and outrageous conduct. Defendants have moved to dismiss each state claim on various grounds. When considering whether to exercise pendent jurisdiction the Court is guided by certain considerations. These considerations should include: (1) whether the federal cause of action is sufficient to confer subject matter jurisdiction upon the federal court; (2) whether the state and federal claims have been derived from a common nucleus of operative facts; (3) whether the claim would ordinarily be expected to be heard in one judicial proceeding; and (4) the possibility of jury confusion. United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). Although plaintiffs' pendent claims do arise out of the same common nucleus of operative facts as the federal claims, in weighing the considerations of judicial economy, convenience and fairness to the litigants, plaintiffs' state claims involve considerations of the state of mind and emotional status of each plaintiff, all of which are irrelevant to their federal claims under CERCLA, FWPCA and RCRA. As the considerations underlying the state claims are so different from those underlying the federal claims, the exercise of pendent jurisdiction would not advance judicial economy. Furthermore, the possibility of jury confusion on the damages issues is too great. It appearing to the Court that it is improper to use its pendent jurisdiction to widen the scope of recovery beyond the limits of the federal statutes, upon which jurisdiction is predicated and in consideration of judicial economy, convenience and fairness to litigants, the Court declines to exercise pendent jurisdiction over plaintiffs' related state law claims. Whether the Court should exercise jurisdiction over plaintiffs' state law claims is a matter left to the Court's discretion. See United Mine Workers v. Gibbs, supra; McLaurin v. Fischer, 768 F.2d 98, 105 (6th Cir. 1985); Shirley v. Brown and Williamson Tobacco Co., 608 F. Supp. 78 (E.D. Tenn. 1984). Defendants move to dismiss plaintiffs' claims for equitable relief for their failure to join an indispensable party. Defendants argue that plaintiffs' failure to join the Landfill owner is grounds for the Court to dismiss all equitable claims under Rule 19, Fed. R. Civ. P. Plaintiffs argue that the Landfill owner did not cause the alleged dumping to occur and has cooperated with plaintiffs in their claim. Rule 19 provides in part: A person . . . shall be joined as a party in [an] action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) . . . impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to an substantial risk of incurring double, multiple, or other inconsistent obligations by reason of the claimed interest. If such a finding is made, the Court may order the person be made a party. Id. The Court is unable at this time to make such a finding in the early stages of this litigation. Plaintiffs argue that the current site owner is not claiming an interest that may be prejudiced relating to the harm allegedly suffered by the adjoining landowners. Until such a finding is made, upon the appropriate motion, it would be premature for the Court to grant defendants' motion on the basis that the Landfill owner is an indispensable party. Determination of whether an action should proceed with or without a person and the determination of an indispensable party is within the sound discretion of the trial judge. Walsh v. Conteio, 692 F.2d 771 (9th Cir. 1982). Turning the Court's attention to defendants' motion to dismiss the State's complaint, defendants first argue that the State's CERCLA claim should be dismissed for failure to comply with the sixty-day notice provision of 42 U.S.C. § 9612(a). Plaintiff responds that notice is not a prerequisite in a CERCLA action since the Superfund resources are not involved. The issue raised by defendants is whether the sixty-day notice requirement also applies to actions for direct recovery against responsible parties under 42 U.S.C. § 9607. As previously cited herein, the Sixth Circuit has recently held that the sixty-day notice provision does not apply to private actions for recovery of response costs. Walls v. Waste Resource Corp., 823 F.2d 977 [17 ELR 20954] (6th Cir. 1987). Notification is a necessary prerequisite when reimbursement from the Superfund under Section 9611 is being sought. Id. at 981. As the State is not seeking reimbursement from the Superfund, no notice under Section 9612 of CERCLA was necessary prior to its intervention into the law suit. Defendants argue that the State's past and future responses are inconsistent with the NCP, 42 U.S.C. § 9607(a)(4)(A), and it is therefore precluded from recovering CERCLA cleanup costs. Specifically, defendants argue that the state has made no effort to contact responsible parties. However, consistency with NCP is not an issue to be decided on a Motion to Dismiss. The State has sufficiently stated a cause of action under Section 9607(a) to recover response costs. Whether those costs are consistent with the NCP is a factual determination for trial. Fishel, supra; Interchange, supra at 170. The State's pleadings are sufficient to withstand defendants' motion to dismiss its CERCLA's claim. Regarding the State's FWPCA claim, defendants move to dismiss this claim because the State failed to comply with the jurisdictional notice prerequisites. The State argues its right to intervene [18 ELR 21503] without notice is permitted if all the prerequisites to such intervention are met. The Court agrees with the State that such rights exist and that notice is not a prerequisite to bringing a FWPCA claim when intervention is sought. See United States v. Ketchikan Pulp Co., 74 F.R.D. 104 [7 ELR 20368] (D. Alaska 1977). Although the Court has previously dismissed two of the three defendants for private plaintiffs' failure to give proper notice, because defendant Westinghouse remains an active defendant, the State will be permitted to remain as well. However, intervenor's FWPCA's complaint against Inmont and CCA should be dismissed. Had all defendants been dismissed it would have been appropriate to dismiss all of the State's FWPCA claim, as no action would exist in which to intervene. Defendants next argue that the State's FWPCA action is time-barred, contending that the most recent complained-of act occurred more than ten years prior to filing the complaint. As argued by the private plaintiffs, the State maintains that the hazardous discharges continue. This Court has previously held that the five-year statute of limitations contained in 28 U.S.C. § 2462 applies to citizens' suits under the FWPCA for past violations. As with the private plaintiffs, the State should be given the opportunity to establish its case and prove defendants' discharges are continuing and, if not, when such discharges terminated. Defendants seek dismissal of the State's third cause of action involving RCRA for failure to give the requisite ninety-days notice to them or the Environmental Protection Agency (EPA). The State responds that its right to intervene negates its requirement to give notice under RCRA. The Court adopts its preceding analysis allowing the State to intervene under private plaintiffs' claim against Westinghouse. Ketchikan, supra. The Court has previously dismissed private plaintiffs' RCRA claim against Inmont and CCA. Therefore, intervenor's RCRA complaint should be dismissed as well against Inmont and CCA. In regard to the State's federal common law claim of nuisance, defendants assert the identical argument as previously discussed, that is, CERCLA, RCRA and FWPCA have preempted this tort. As the Court has previously noted, it agrees that these Acts have in fact preempted the federal common law claim for nuisance. Without reiterating the same analysis, the State's claim for common law nuisance should be dismissed against all defendants. Finally, the State seeks restitution and certain statutory and common law claims. Defendants seek to dismiss each of these claims on several grounds. The Court adopts its previous analysis regarding dismissal of private plaintiffs' pendent claims. Consequently, the State's pendent claims for restitution, statutory and common law claims should be dismissed. Based upon the foregoing reasons and authority, defendants' motions to dismiss will be sustained in part and denied in part. Siler Jr., J.: 18 ELR 21498 | Environmental Law Reporter | copyright © 1988 | All rights reserved |