ELR Citation: ELR 21472
No(s). 94-C-574 (E.D. Wis. Jun 27, 1997)

The court grants plaintiffs' motion to amend their complaint to add a claim for injunctive relief against chemical manufacturers under the citizen suit provision of the Resource Conservation and Recovery Act (RCRA), because there is no statute of limitations applicable to that claim and the claim is outside the "scope and duration" of a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §106 administrative consent order. The court first holds that there is no statute of limitations applicable to plaintiffs' RCRA claim. Because RCRA §7002(a)(1)(B) is meant to further the national policy of remedying present or future imminent harms, not to compensate for past cleanups, there is no relevant or appropriate statute of limitations for actions seeking only injunctive relief. Rather than creating a statute of limitations, Congress adopted a timing restriction such that a private party can bring suit under §7002(a)(1)(B) only where solid or hazardous waste "may present an imminentand substantial endangerment to health or the environment." The court rejects defendants' argument that the five-year statute of limitations under 28 U.S.C. §2462 should apply. The cases adopting §2462's statute of limitations are distinguishable, because they are premised on the remedy of civil fines sought in those cases. Because RCRA's citizen suit provisions create a primarily equitable remedy, the court also rejects defendants' argument that where a statute allows both legal and equitable remedies, a legal statute of limitations applies even if a plaintiff seeks only equitable relief.

Turning to RCRA §7002(b)(2)(B)'s citizen suit bar, the court holds that subsections (ii) and (iii) are inapplicable, because there is no indication that the U.S. Environmental Protection Agency (EPA) has undertaken a removal or remedial action. Subsection (i) is inapplicable, because the existence of the consent order indicates that EPA has moved beyond the commencement and diligent prosecution of a CERCLA §106 action. Examining subsection (iv), the court next holds that the plaintiffs' RCRA claim is outside the "scope and duration" of the consent order because the consent order does not contemplate removal or remediation of any actual groundwater contamination that plaintiffs have identified. Also, the consent order's scope may not encompass plaintiffs' claim of imminent and substantial danger to groundwater and Lake Michigan from arsenic and other wastes. And the relation back of the RCRA claim, to claims preceding the consent order, allows it to be added now. The court next rejects the argument that the only significant motivation for the RCRA claim is to win attorneys fees, because it is too early to ascertain plaintiffs' motives and the motivation for the recovery of attorneys fees may be irrelevant. Finally, the court concludes that defendants will suffer no undue prejudice by the amendment.

Counsel for Plaintiffs
Paul E. Bargren
Foley & Lardner
Firstar Center
777 E. Wisconsin Ave., Milwaukee WI 53202
(414) 271-2400

Counsel for Defendant
William A. Ruskin
Schulte, Roth & Zabel
900 Third Ave., New York NY 10022
(212) 756-2000