holding that a landowner, who paid less because it knew it was buying into an expensive cleanup, was "a little less 'innocent' than the landowner described in Akzo" but still might recover under § 107(a)(4)(B) for cleanup of contamination on its property due to a third party spill
How later courts described this case
- holding that a landowner, who paid less because it knew it was buying into an expensive cleanup, was "a little less 'innocent' than the landowner described in Akzo" but still might recover under § 107(a)(4)(B) for cleanup of contamination on its property due to a third party spill
- holding that the plaintiffs (a)(1)(A) claim that alleged violations of federal regulations in an authorized state failed simply because the plaintiffs “based the claim on the wrong set of regulations”
- allowing suit for response costs by a party who presumably paid a discounted price for property it knew was going to be an expensive cleanup, and noting that such facts may have rendered the purchaser "a little less innocent"
- agreeing with a defendant’s assertion that only claims involving violations of subchapter III, and not simply those “involving” hazardous waste, “respect! ] a violation of RCRA’s hazardous waste management regulations”
Written by the judges who cited it.
The opinion
*1353 RIPPLE, Circuit Judge,
concurring.
I concur fully in the judgment of the court and am pleased to join the court’s comprehensive and thoughtful opinion. I write separately only to emphasize that we do not decide whether the 90-day waiting provision contained in 42 U.S.C. § 6972 (b)(2)(A) applies to compulsory counterclaims brought under Rule 13(a) of the Federal Rules of Civil Procedure. Although we have assumed arguendo that the waiting period applies to such claims, our holding ought not be understood as deciding the issue sub silentio.
This case demonstrates the difficulty in applying the 90-day waiting requirement to the filing of compulsory counterclaims. In this ease, Datacard properly gave notice of its intent to sue for response costs and an injunction. AMI, in response, immediately commenced a declaratory judgment action. At that point, Datacard filed its answer, as required by the Federal Rules of Civil Procedure, before the 90-day waiting period had expired. Datacard had to assert the RCRA claims in that answer. See Fed.R.Civ.P. 13(a). One is tempted to say that AMI “waived” its right to insist on the 90-day waiting period by filing the declaratory judgment action. The “waiver” theory, however, cannot carry the day because of Hallstrom v. Tillamook County, 493 U.S. 20 , 110 S.Ct. 304 , 107 L.Ed.2d 237 (1989). RCRA’s notice provisions are “jurisdictional” in nature. Id. at 31 , 110 S.Ct. at 311-12 .
Although Hallstrom forecloses waiver, that decision does not foreclose an interpretation of § 6972(b)(2)(A) that excludes compulsory counterclaims from the 90-day waiting requirement. In holding that RCRA’s delay requirements are mandatory conditions precedent to commencing suit under the RCRA citizen suit provision, the Supreme Court noted:
[Petitioners have full control over the timing of their suit: they need only give notice to the appropriate parties and refrain from commencing their action for at least 60 days. The equities do not weigh in favor of modifying statutory requirements when the procedural default is caused by petitioners’ “failure to take the minimal steps necessary” to preserve their claims.
493 U.S. at 27 , 110 S.Ct. at 309 (citation omitted). Unlike the petitioners in Hallst-rom, Datacard did not “have full control over the timing of [its] suit”; it did not have the luxury to refrain from filing suit within 90 days of notice. Instead, the timing of Datacard’s suit was largely at the mercy of AMI and the Federal Rules of Civil Procedure. Datacard took the “ ‘minimal steps necessary’ to preserve [its] claim” by initially giving notice. It was the initiation of adversarial proceedings by AMI that compelled Datacard to initiate a RCRA citizen suit before the 90-day period had expired.
In addition, the plain language of § 6972(b)(2)(A) can be read to exclude compulsory counterclaims. Section 6972(b)(2)(A) of Title 42 provides that “[n]o action may be commenced under subsection (a)(1)(B) of this section prior to ninety days after the plaintiff has given notice of the endangerment.” 42 U.S.C. § 6972 (b)(2)(A) (emphasis added). 1 ■ Rule 3 of the Federal Rules of Civil Procedure provides that a plaintiff “commences” an action by “filing a complaint with the court.” Fed.R.CivJ?. 3. A plausible reading of § 6972(b)(2)(A) is that Datacard was not required to comply with the 90-day waiting period because it did not “commence” a RCRA action as a plaintiff within the meaning of § 6972(b). 2 This interpretation not only finds support in the statute’s plain language and in Hallstrom , but it also seemingly harmonizes the jurisdictional nature of the statute with the policies underlying the law of waiver.
Nevertheless, I believe that the court has taken the more prudent course in not basing its decision on this interpretation of *1354 § 6972(b)(2)(A). The issue has not been briefed by the parties. Additionally, one court has held that the section does apply to compulsory counterclaims. See Portsmouth Redevelopment & Housing Auth. v. BMI Apartments Assocs., 847 F.Supp. 380, 386 (E.D.Va.1994). That court recognized the importance of notifying the EPA, the State and the other persons covered by § 6972(b)(2)(A)(iii) of environmental contamination. The Portsmouth Redevelopment court reasoned that a party in Datacard’s predicament is “obligated to inform the court of its intentions [to file a counterclaim] so that appropriate ease-management provisions, including a provision for the delayed filing of counter-claims ..., if necessary, c[an be] inserted in the pretrial order.” 847 F.Supp. at 386 .
Given the arguments that have been made before us, the court’s ground for decision is adequate and compatible with, although not compelled by, the Second Circuit’s decision in Dague v. City of Burlington, 935 F.2d 1343 (2d Cir.1991), rev’d in part on other grounds, 505 U.S. 557 , 112 S.Ct. 2638 , 120 L.Ed.2d 449 (1992). The practical quandary of counter-claimants will need further judicial or legislative elaboration in the future.
. In like terms, § 6972(b)(1)(A) contains a 60-day waiting period, which applies to actions commenced under subsection (a)(1)(A). 42 U.S.C. § 6972 (b)(1)(A).
. Of course, placing undue emphasis on the meaning of the term "commence” would prove too much; that term is used in § 6972(a) as well as in § 6972(b). One difference is that § 6972(a) provides that “any person” may commence a citizen suit, whereas § 6972(b), which sets forth the notice and delay requirements, refers to "the plaintiff."