ELR Citation: ELR 20005
No(s). 91-1247 (7th Cir. Aug 28, 1992)

The court upholds the dismissal of three Resource Conservation and Recovery Act (RCRA) citizen suits brought by an association of persons living close to a county landfill against an investment group, alleged to be the landfill operator's alter ego under Indiana corporate law, because the group loaned money to the landfill operator. The court holds that the association's appeal was properly dismissed, because RCRA citizen suits are barred if the Environmental Protection Agency (EPA) has commenced and is diligently prosecuting a civil or criminal compliance action, and EPA had, in fact, prosecuted vigorously. The court observes that the risks posed by contamination at the landfill may persist; however, they can be addressed through §§106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Moreover, the risks do not limit the effect of the RCRA citizen suit bar to pending citizen suits. The court also finds that EPA was the party that obtained an order against the landfill operator. Thus, the court holds, if the investment group is the operator's alter ego, EPA, not the association, may pursue recourse against the investment group. The court next holds that claim preclusion bars the association's demands, because although ongoing releases may constitute new wrongs for which additional litigation is permissible, the releases now claimed by the association were known at the time of the original trial and formed the principal basis of the claims in that suit; new evidence differs from a new wrong. Finally, the court holds that the association's claims for attorney fees against the debtor in bankruptcy are subject to the Bankruptcy Code's creditor rules, and the association may not enforce EPA's judgment against the investment group.

[A prior decision in this litigation is published at 21 ELR 21513.]

Counsel for Plaintiff-Appellant
David W. Zugschwerdt
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants-Appellees
Anthony J. Thompson
Perkins & Coie
1110 Vermont Ave. NW, Washington DC 20005
(202) 887-9030

Jay E. Silberg, Margaret S. Spencer
Shaw, Pittman, Potts & Trowbridge
2300 N St. NW, Washington DC 20037
(202) 663-8000

Before CUMMINGS, FLAUM, and EASTERBROOK, Circuit Judges.