West Dallas Coalition for Environmental Justice v. United States

No. CA 3:91-CV-2615-R (N.D. Tex. December 14, 1998)

The court dismisses without prejudice an environmental justice coalition's Resource Conservation and Recovery Act (RCRA) and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) citizen suits against the U.S. Environmental Protection Agency (EPA) for lack of subject matter jurisdiction. The coalition challenged an EPA emergency removal action at a housing project in an effort to prohibit EPA's use of a facility near the housing project for interim storage of lead-contaminated soil and debris. The court first holds that the coalition failed to meet the 60-day notice requirement of CERCLA's and RCRA's citizen suit provisions. It is undisputed that the coalition gave notice only three days before filing its complaint. It is irrelevant that EPA will have had notice more than 60 days before the coalition files its amended complaint. The court then denies the government's motion to dismiss the coalition's Administrative Procedure Act, Fifth Amendment, and 42 U.S.C. § 1982 claims.

[Counsel not available at this printing.]

[29 ELR 20420]

Buchmeyer, J.:

Memorandum Opinion and Order

Plaintiff West Dallas Coalition for Environmental Justice asserts claims against Defendant Carol Browner in her capacity as Administrator of the United States Environmental Protection Agency pursuant to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.A. § 6972 (1995), the Administrative Procedure Act ("APA"), 5 U.S.C.A. §§ 701-706 (1996), the Fifth Amendment of the United States Constitution, U.S. Const. amend. V, and 42 U.S.C.A. § 1982 (1994). Now before this Court is Plaintiff's Motion for Leave to Amend the Complaint, filed on March 23, 1992, Plaintiff's Amended Motion for Leave to Amend the Complaint, filed on May 28, 1992, and Defendants' Motion to Dismiss, filed on December 18, 1991. For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in part, and Plaintiff's motions are DENIED.

I. Background Facts

In 1991, the West Dallas Coalition for Environmental Justice ("Coalition") challenged the Environmental Protection Agency's ("EPA") emergency removal action at a West Dallas housing project ("Site") in West Dallas, Texas under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.A. §§ 6901-6992k (1995). The removal action had been authorized pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") § 104, 42 U.S.C.A. § 9604 (1995). The Coalition sought an order enjoining EPA from implementing the 1991 emergency removal action and failing to conduct a proper removal action. In particular, the Coalition wanted to prohibit EPA from using the RSR Corporation facility, located across the street from the Site, as an interim storage facility for lead-contaminated soil and debris. In support of their request for injunctive relief, the Coalition alleged that EPA violated federal environmental and anti-discrimination laws, as well as the Fifth Amendment of the United States Constitution.

The Coalition sought to amend its complaint in 1992. On February 10, 1993, this Court issued an order setting the action for trial in March 1993, and on February 22, 1993, this Court granted a motion by the Coalition to indefinitely continue the trial date because the Court had not yet ruled on the Coalition's motion to amend its complaint.

On September 20, 1995, the Site, which was divided into five operable units ("OUs"), was added to EPA's National Priority List. EPA's 1991 emergency removal action involved the removal of contaminated material from OU1 and OU2 and the temporary storage of those materials at OU4. The 1991 emergency removal action and all other planned cleanup activities at OU1 and OU2, including the removal of hazardous and nonhazardous soil and in-home sampling, are now complete. On May 9, 1995, EPA signed Records of Decision for OU1 and OU2 stating that no further action is necessary for protection of human health and environment at OU1 and OU2.

Still pending before this Court are Plaintiff's Motion for Leave to Amend the Complaint, Plaintiff's Amended Motion for Leave to Amend the Complaint, and Defendants' Motion to Dismiss.

II. Analysis

42 U.S.C.A. § 9659(d)(1) requires a plaintiff to give notice to the President, the State where the violation occurred, and any alleged violator of the order concerned sixty days before commencing a citizen suit pursuant to CERCLA.¹ See 42 U.S.C.A. § 9659(d)(1) (1995). In this case, it is undisputed that the Plaintiff gave notice only three days prior to filing its complaint. In Hallstrom v. Tillamook County, 493 U.S. 20, 110 S. Ct. 304, 107 L. Ed. 2d 237 [20 ELR 20193] (1989), the Supreme Court held that the virtually identical notice provision in [29 ELR 20421] RCRA is a mandatory precondition to suit that the district court does not have discretion to disregard. See id. at 33, 110 S. Ct. at 312, 107 L. Ed. 2d at 250; see also id. at 26, 110 S. Ct. at 308, 107 L. Ed. 2d at 246 ("The language of this provision could not be clearer. A citizen may not commence an action under RCRA until 60 days after the citizen has notified the EPA, the State in which the alleged violation occurred, and the alleged violator. Actions commenced prior to 60 days after notice are 'prohibited.'").

The Coalition argues that because it provided notice on December 14, 1991, EPA will have had notice more than sixty days before Plaintiff files its Second Amended Complaint. The Hallstrom Court rejected similar reasoning, however, holding that "a plaintiff may not file suit before fulfilling the 60-day notice requirement." Id. at 26, 110 S. Ct. at 309, 107 L. Ed. 2d at 246 (emphasis added). The Court concluded that "where a party suing under the citizen suit provisions of RCRA fails to meet the notice and 60-day delay requirements of § 6972(b), the district court must dismiss the action as barred by the terms of the statute." Id. at 33, 110 S. Ct. at 312, 107 L. Ed. 2d at 250.

Although Hallstrom addressed the citizen suit provision of RCRA, the wording of the citizen suit provision of CERCLA is quite similar. See id. at 23 & n.1, 110 S. Ct. at 307 & n.1, 107 L. Ed. 2d at 244 & n.1. Subsequent to Hallstrom, several courts have applied its reasoning to hold that failure to comply with CERCLA's sixty-day notice provision requires dismissal for lack of subject matter jurisdiction. See, e.g., Boarhead Corp. v. Erickson, 923 F.2d 1011, 1019 n.13 [21 ELR 20517] (3d Cir. 1991); Frost v. Perry, 919 F. Supp. 1459, 1469 [26 ELR 21252] (D. Nev. 1996), aff'd sub nom. Kasza v. Browner, 133 F.3d 1159 [28 ELR 20449] (9th Cir.), cert. denied, __ U.S. __, 119 S. Ct. 414, __ L. Ed. 2d ___, 67 U.S.L.W. 3300 [28 ELR 20449] (U.S. Nov. 2, 1998) (No. 98-5405).

Following Hallstrom and subsequent case law and because the status of the Site and the 1991 removal action has changed a great deal over the past seven years, this Court will therefore grant Defendant's Motion to Dismiss in part, dismissing Plaintiff's CERCLA and RCRA claims without prejudice for failure to provide proper notice in accordance with 42 U.S.C.A. § 9659(d)(1).²

However, this case is not dismissed because Plaintiff's claims pursuant to 42 U.S.C.A. § 1982 remain. Plaintiff's Motion for Leave to Amend the Complaint and Plaintiff's Amended Motion for Leave to Amend the Complaint are denied. After Plaintiff has provided EPA with the appropriate notice required by statute, it may then file a new suit against EPA-which, in this Court's discretion, will be consolidated with this case for resolution with the remaining § 1982 claims.

III. Conclusion

For the foregoing reasons, Defendant's Motion to Dismiss is GRANTED with respect to Plaintiff's CERCLA and RCRA claims and DENIED with respect to Plaintiff's APA, Fifth Amendment and § 1982 claims. Plaintiff's Motion for Leave to Amend the Complaint and Plaintiff's Amended Motion for Leave to Amend the Complaint are DENIED. It is so ORDERED.

1. Section 9659(d)(1) states:

No action may be commenced under subsection (a)(1) of this section before 60 days after the plaintiff has given notice of the violation to each of the following:

(A) The President.

(B) The State in which the alleged violation occurs.

(C) Any alleged violator of the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 9620 of this title).

Notice under this paragraph shall be given in such manner as the President shall prescribe by regulation.

42 U.S.C.A. § 9659(d)(1) (1995). The RCRA contains a similar notice requirement in its citizen suit provision. See 42 U.S.C.A. § 6972(b)(1) (1995).

2. Granting Defendant's Motion to Dismiss in part, however, does not mean that Plaintiff's concerns will go unaddressed. As EPA explained in its Reply in Further Support of its Motion to Dismiss:

The status of the West Dallas Site ("Site") and the 1991 removal action have dramatically changed over the past seven years, and the allegations in Plaintiff's First Amended Complaint, and even its proposed Second Amended Complaint, no longer cover the current status of the Site. This action must be dismissed on the jurisdictional grounds advanced by EPA since 1991, and Plaintiff's Amended Motion for Leave to Amend the Complaint must be denied. Upon dismissal, Plaintiff can review any claims it may have at this juncture and provide EPA with the appropriate notice required by statute, in order to allow EPA to respond to Plaintiff's concerns. After the requisite notice period has lapsed, Plaintiff may file a new suit bringing any claims to which Plaintiff believes EPA has not adequately responded. EPA's Reply in Further Supp. of its Mot. to Dismiss 1.