Walker v. TDY Holdings, L.L.C.

No. Civ.A. G-99-773 (135 F. Supp. 2d 787) (S.D. Tex. March 22, 2001)

ELR Digest

The court dismisses for lack of notice a neighborhood group's third-party Resource Conservation and Recovery Act (RCRA) complaint against three federal agencies that are the alleged successors to a former tin smelter that emitted arsenic into the environment. The group filed the third-party complaint against the agencies to prevent them from further contamination and to require them to participate in testing and cleanup activities. The group, however, failed to serve the agencies prior to the filing of the third-party complaint with a notice of intent to sue, as required by RCRA. The court first holds that there is no discernable reason why RCRA's notice requirement should not apply to third-party complaints as well as original actions. Although there is no case law on point within the circuit, at least one court outside of the circuit has held that RCRA's pre-suit notice requirement applies to third-party actions. Further, the language of RCRA § 7002(b)(2)(A)'s notice requirement can be fairly read to apply to a third-party plaintiff commencing a third-party action. If Congress desired to limit the notice requirements to original actions, it could have expressed such in unmistakable terms. The court also holds that a consent decree in another case to which the federal defendants were signatories does not satisfy RCRA's notice requirements. Although that consent decree refers to the existence of the present action, it does not specifically acknowledge the existence of the present action, but rather the right of the settling defendants in that consent decree to bring an action similar to the present action against the United States. Moreover, even if the federal agencies did acknowledge the present action in the consent decree, Congress did not intend RCRA notice to be in this form.

The full text of this decision is available from ELR (6 pp., ELR Order No. L-360).

Counsel for Plaintiff
Michael A. Pohl
Law Offices of Michael A. Pohl
1111 Bagby St., Ste. 2450, Houston TX 77002
(713) 652-0100

Counsel for Defendant
Larkin C. Eakin Jr.
Woodard, Hall & Primm
600 Travis St., Houston TX 77002
(713) 221-3800

[31 ELR 20578]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]