ELR Citation: ELR 20998
No(s). 90-CV-73854-DT (E.D. Mich. Mar 12, 1992)

The court holds that purchasers of Michigan real estate, allegedly contaminated with waste, failed to state a claim on which relief could be granted against the seller of the property under §7002 of the Resource Conservation and Recovery Act (RCRA). The court first holds that the plaintiffs failed to comply with the court's order requiring them to elaborate on the predicate activities on which they based claims against the defendant under the Racketeer Influenced and Corrupt Organizations Act (RICO). However, the court gives the plaintiffs until March 27, 1992, to amend the RICO count of their complaint and supplement their case statement. The court next finds that the plaintiffs' RCRA claim is asserted under RCRA §7002(a)(1)(A), because they did not specify under which subsection of §7002 their claim was asserted and they failed to satisfy §7002(a)(1)(B)'s 90-day notice requirement. The court holds that they have failed to state a claim on which relief can be granted, because they seek relief for wholly past violations of RCRA. The defendant's alleged hazardous waste activities predate both the effective date of the applicable RCRA regulations and the filing date of the plaintiffs' complaint. Finally, the court holds that although the defendant is the substantially prevailing party with respect to the plaintiffs' RCRA claim, awarding attorney and witness fees would be inappropriate, because there has been no discovery unique to the RCRA claims as opposed to the other legal theories posited by the plaintiffs.

Counsel for Plaintiff
John G. Gleeson
Harvey, Kruse, Westen & Milan
1500 Wilshire Dr., Ste. 320, Troy MI 48084
(313) 649-7800

Counsel for Defendant
Joel M. Shere
Dickinson, Wright, Moon, Van Dusen & Freeman
800 First National Bldg., Detroit MI 48226
(313) 223-3500