ELR Citation: ELR 20992
No(s). 80-5066-CV-SW-4 (W.D. Mo. Mar 24, 1983)

The court declines to rule that defendants in an imminent hazard abatement and response cost recovery action under the Resource Conservation and Recovery Act (RCRA) and Comprehensive Environmental Response, Compensation, and Liability Act are entitled to a jury trial but agrees to hear their case before a jury. Initially, the court rules that both sides are entitled to discovery concerning the other's expert witnesses, but that defendants are not entitled to discovery concerning plaintiff's own handling of dioxin wastes. The court also orders plaintiff to respond to defendants' interrogatories concerning the details of the items of expense for which reimbursement is sought, since the business records submitted by plaintiff do not explain the expenses. Turning to defendants' request for a jury trial, the court concludes that it is a close question whether the action is legal, and thus appropriate for a jury trial, or equitable; but the court avoids deciding the question by calling for an advisory jury under Rule 39(c) of the Federal Rules of Civil Procedure.The court rules that even though the trial will involve a jury, defendants are not entitled to a change of venue to Connecticut, since RCRA §7002 confers jurisdiction only in the district in which the imminent hazard exists, but the court does shift the trial to a different division within the district. Finally the court rejects defendants' request for an extension of time for discovery.

Counsel for Plaintiff
Vernon Poschel, Ass't U.S. Attorney
549 U.S. Cthse., 811 Grand Ave., Kansas City MO 64106
(816) 374-3122

David O. Ledbetter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3483

Dan Shiel
Office of the Regional Counsel
Environmental Protection Agency, 324 E. 11th St., Kansas City MO 64106
(816) 758-2069

Counsel for Defendants
Gary T. Nelms
Jones, Keeter, Karchmer, Nelms, Sullivan & Kirby
P.O. Box 1185 SSS, Springfield MO 65805
(417) 862-9255

Milton Turkel
Gruber & Turkel
218 Bedford St., Stamford CT 06901
(203) 323-7789

Howard Holtzmann
Holtzmann, Wise & Shepard
745 5th Ave., New York NY 10022
(212) 753-4300

John C. Noonan
Stinson, Mag & Fizzell
P.O. Box 19251, Kansas City MO 64105
(816) 842-8600