ELR Citation: ELR 20753
No(s). 89-2325-Y (D. Mass. Dec 9, 1993)

The court holds that although the citizen suit provision of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not itself authorize class action suits, CERCLA §310(h) preserves for individual citizens all rights provided to litigants under any law, including the class action rule contained in Federal Rule of Civil Procedure 23. Plaintiffs sought class action status to assert standing to obtain nationwide injunctive relief against the U.S. Environmental Protection Agency (EPA) for its failure to assess and evaluate the hazardous waste problems at each of approximately 840 federal waste sites located throughout the United States, as required under CERCLA §120(d). The court first rules that CERCLA's citizen suit provision does not create a right for any individual to bring a class action. Noting that CERCLA's citizen suit provision is modeled after corresponding provisions of the Clean Air Act, the Federal Water Pollution Control Act, and the Resource Conservation and Recovery Act, the court interprets the legislative history of these acts not to authorize a class action. The court holds, however, that the savings clause of §310(h) makes class action status available to litigants that meet the Rule 23 requirements. Despite case law to the contrary, the plain meaning of §310(h) compels the court to rule that if appropriate, plaintiffs may maintain this suit as a class action. The court holds, however, that the case may not proceed as a class action, because plaintiffs lack in the aggregate that commonality of case-specific claim by various members or defense by EPA that warrants class action status.

[Prior decisions in this action are published at 20 ELR 21394, 21 ELR 20797, and 22 ELR 20494.]

Counsel for Plaintiffs
Stephen H. Burrington, Peter Shelley
Conservation Law Foundation
62 Summer St., Boston MA 02110
(617) 350-0990

Counsel for Defendant
Nancy K. Stoner
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000