ELR Citation: ELR 21350
No(s). HM-92-9 (D. Md. May 6, 1992)

The court holds that a landowner may sue an adjacent landowner in a citizen suit under §310 of the Comprehensive Environmental Response, Compensation, and Liability ACT (CERCLA) and §7002 of the Resource Conservation and Recovery Act (RCRA), and that the landowner may sue in tort for punitive damages. The court first holds that, although CERCLA §310 does not provide for recovery of response costs, the court could impose a civil penalty upon the defendant. The landowner could receive at least some of the relief it seeks under the CERCLA citizen suit provision. The court next holds that the plaintiff complied with the notice requirements for citizen suits under CERCLA §310(d), even though the U.S. Environmental Protection Agency has not yet issued final regulations prescribing the manner in which a plaintiff in a citizen suit must give notice. The notice that the landowner gave satisfied the procedural requirements and the policy goals of CERCLA §310(d). The court holds that since RCRA's citizen suit provision does not provide for recovery of response costs, the plaintiff's response cost recovery, if any, must be under another of the counts listed in the complaint. The court does have jurisdiction under RCRA §7002 to provide broad injunctive relief, including enjoining the adjacent landowner to comply with RCRA requirements. The court notes that, although the landowner seeks a private remedy, the suit for injunctive relief may proceed under RCRA, since the plaintiff is separately pursuing claims for money damages. Finally, the court holds that the plaintiff may pursue its claim for punitive damages in tort, because the plaintiff has sufficiently alerted the defendant of its claims and the grounds on which they are based.

Counsel for Plaintiff
Jeffrey M. Johnson, Joshua S. Kans
Dickstein, Shapiro & Morin
2101 L St. NW, Washington DC 20037
(202) 785-9700

Counsel for Defendant
Timothy A. Vanderver Jr., Duane A. Siler
Patton, Boggs & Blow
2550 M St. NW, Washington DC 20037
(202) 457-6000