ELR Citation: ELR 20001
No(s). 85-0216 (M.D. Pa. Oct 1, 1985)

The court holds that neighbors of a manufacturing facility may maintain a cost recovery action under the Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA) absent government involvement, and a citizen suit under the Resource Conservation and Recovery Act (RCRA) and Federal Water Pollution Control Act (FWPCA) seeking injunctive relief and penalties for past violations. The court first rules that plaintiffs' exhibits and affidavit submitted in support of their counter-motion for summary judgment and the affidavit of plaintiffs' expert are not defective. On the merits of the motions, the court first rules that plaintiffs do not need prior governmental approval to assert a private claim for recovery of response costs under CERCLA. Although there is a split in authority, this court concludes the better view is that no prior approval is necessary. Courts that have required approval have relied on provisions in the national contingency plan (NCP) and policy considerations suggesting that the government should be involved in any response action. However, CERCLA expressly only requires prior governmental approval when reimbursement for response costs is sought from the government. In addition, the Environmental Protection Agency (EPA) has recently proposed modifications of the NCP consistent with this court's interpretation. The court then rules that a group of neighbors did allege that they had incurred response costs, which is a prerequisite to a cost recovery action under CERCLA.

Turning to plaintiffs' RCRA and FWPCA claims, the court rules that plaintiffs gave proper notice of their claims under both statutes. That the notice was timely is undisputed, and plaintiffs described the violations with sufficient detail to enable defendant to identify the specific regulations and conduct at issue. The court also rules that plaintiffs stated a good cause of action under RCRA for a hazardous waste facility disposal violation, but they failed to make out an open dumpting violation. Plaintiff's complaint could be read to charge defendant with intentional disposal of wastes at the site and thus the site would be a waste disposal facility. However, the definition of "open dump" excludes hazardous waste disposal facilities. The court declines to characterize the site as one or the other, but notes that the two claims cannot be brought simultaneously. The court also rejects plaintiffs' contention that RCRA covers the washing of grates used in the manufacturing process over a storm drain. The court next rules that plaintiffs may maintain a private action under RCRA despite the fact that defendants are subject to an outstanding EPA abatement order under CERCLA §106. Plaintiffs' claims concern subsurface water contamination; these claims are outside the scope of the order, which deals with surface contamination at one site and a lagoon at the other.

The court rules that the storm water runoff at the site is not "process waste water" within the definition of the FWPCA. It then rules that the group of neighbors whose wells are not currently contaminated do have standing to maintain actions under RCRA and the FWPCA. Their injury is personal since they own land adjoining contaminated land, and contamination may spread to their land. Also, plaintiffs may seek civil penalties for past violations of the FWPCA in this citizen suit. Although there are cases on both sides of this argument, the court agrees with those permitting penalties for past violations. The phrase "in violation" can plausibly be construed to mean having violated, and the statute does not contain any limiting time period in its grant of authority to the court to impose civil penalties.

Counsel for Plaintiffs
Albert J. Slap, Gerald J. Williams
Slap, Williams & Cuker
Suite 960, 1 Franklin Plaza, Philadelphia PA 19102
(215) 557-0099

Counsel for Defendants
Thomas W. Scott
Killian & Gephart
218 Pine St., P.O. Box 886, Harrisburg PA 17108
(717) 232-1851

Terry R. Bossert
McNees, Wallace & Nurick
100 Pine St., P.O. Box 1166, Harrisburg PA 17108
(717) 232-8000