ELR Citation: ELR 21577
No(s). 2:93CV242 (E.D. Va. Mar 25, 1994)

The court holds that it lacks subject matter jurisdiction under §7002 of the Resource Conservation and Recovery Act (RCRA) over a current owner's counterclaim for money damages from previous owners of a site where petroleum hydrocarbons may have been released. The court notes that it need not reach the issue of whether RCRA applies to inactive disposal sites to determine that the current owner's counterclaim is legally insufficient. The court holds that it lacks jurisdiction over a §7002 claim for money damages because the plain language of §7002 confers limited jurisdiction on the district court in RCRA citizen suits, and the determination of liability for, and the allocation of, the costs of the cleanup of abandoned waste sites are not among those powers. Moreover, the current owner's requested injunctive relief is nothing more than a mandate for the payment of money. Even if the citizen suit provision were intended to reach past activity of the sort at issue in this action, the court would be empowered only to award injunctive relief to restrain statutorily prohibited conduct and to require the offender to take such other action as may be necessary not to award damages.

In addition, the court holds that the RCRA claim is jurisdictionally defective because the current owner failed to meet §7002(b)(2)(A)'s 90-day notice requirement. The court holds that the savings clause in that section does not apply because the current owner has not alleged a legally cognizable violation of Subchapter III and because Subchapter III was not enacted until after the alleged violations took place. It is irrelevant that the RCRA claim is asserted as a compulsory claim under Fed. R. Civ. P. 13 because the notice provision is jurisdictional.

Turning to the current owner's claim that §103(c) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars the previous site owners from seeking contribution against the current site owner and asserting CERCLA defenses, the court finds that the penalty provision in CERCLA §103(c) is only applicable to parties who have been convicted of knowingly failing to notify the Administrator of the U.S. Environmental Protection Agency under the terms of §103(c). As the current owners do not argue that plaintiffs have been so convicted, the court holds that the current site owner's request for a declaration of forfeiture is deficient as a matter of law. On the current owner's state-law claim for damages, the court holds that whether or not the Supreme Court of Virginia were to adopt §353 of the Restatement (Second) of Torts, the current owner would not recover compensation for the diminutionin the site's value caused by the alleged contamination, as well as response costs, under the Restatement (Second) of Torts §353 because these constitute pecuniary losses, rather than compensation for physical injury.

[Another decision in this litigation is published at 24 ELR 20075.]

Counsel for Plaintiffs
George Van Cleve
Jones, Day, Reavis & Pogue
Metropolitan Sq.
1450 G St. NW, Washington DC 20005
(202) 879-3939

Counsel for Defendants
Alan D. Abert
Mays & Valentine
NationsBank Ctr.
1111 E. Main St., P.O. Box 1122, Richmond VA 23208
(804) 697-1200