ELR Citation: ELR 21513
No(s). S90-562 (RLM) (N.D. Ind. Mar 29, 1991)

The court holds that a Resource Conservation and Recovery Act (RCRA) citizen suit against landfill operators is barred by plaintiffs' failure to provide defendants with the required 90-day nonadversarial notice period and by res judicata. The court construes the Supreme Court's decision in Hallstrom v. Tillamook County, 20 ELR 20193, to require a nonadversarial notice period before filing the complaint in order to give alleged violators the opportunity to achieve compliance with RCRA without litigating the issues. Since plaintiffs' notice was served while their prior action regarding the same issues was pending in this court, the court holds that plaintiffs failed the nonadversarial requirement. The court next holds that the citizen suit is barred by res judicata because it is based on the same set of operative facts as a prior enforcement action by the Environmental Protection Agency. The court rejects plaintiff's claim that facts that plaintiffs were unable to discover in the prior action become new facts in the latter action and thus are not barred by res judicata. Finally, the court holds that the legislature's policy interest in enforcement by itself is insufficient to avoid res judicata.

Counsel for Plaintiff
John C. Hamilton
205 W. Jefferson Blvd., Ste. 515, South Bend IN 46601
(219) 288-1800

Counsel for Defendants
Christopher G. Scanlon
300 N. Meridian St., Indianapolis IN 46204
(317) 237-0300

Thomas J. Brunner, Paul J. Peralta
First Bank Bldg., 405 W. Jefferson Blvd., South Bend IN 46601
(219) 234-4149