Petition for Writ of Certiorari — Davis v. Sun Oil Co.

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1 \ Supreme Court, U.S"

FILED

98 514 SEP 2219%

a OFFICE OF THE CLERK

No.

| In The

SUPREME COURT OF THE UNITED STATES

October Term, 1998

Donald P. Davis and Maxine Elaine Davis,

Petitioners,

Vv.

Sun O11 Company,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

A. Mark Segreti, Jr.

Counsel of Record

Haffey & Segreti

2365 Lakeview Drive

Suite D

Dayton, OH 45431

(937) 429-8595

Attorney for Petitioners

QUESTION PRESENTED FOR REVIEW

Whether the usual rules of statutory _

construction, including the "plain meaning"

principle, may be applied in determining

whether Congress intended exclusive federal

court jurisdiction, in a statute designating

the district court where a citizen suit "shall

be brought" to abate environmental hazards from

disposal of hazardous waste, rather than a

presumption of concurrent state and federal

court jurisdiction so strong that it is only

rebuttable by the express elimination of state

court jurisdiction.

eS ee ee

PARTIES TO THE PROCEEDING

All parties are named in the caption.

Question Presented ....-.

Parties to the Proceeding . . -

Table of Contents es ee ee

Table of Citations ......

Opinions Below ....++-s. -

Statement of Jurisdiction...

Statutory Provision Involved

Statement of the Case .... .-

Reasons for Granting the Writ .

Conclusion ..+++e«+ee

Appendix

Davis v. Sun Oil Co., 148

606 (6th Cir. 1998)

Court of Appeals Judgment Entry,

June 24, 1998 ...

Davis v. Sun Oil Co.,

890 (S.D. Ohio 1996)

District Court Judgment Entry .

42 U.S.C. Section 6972 .

F.3d

953 F.

Supp.

Page

TABLE OF CITATIONS

Cases cited:

Holmes Fin. Associates v. Resolution

Trust Corp., 33 F.3d 561 (6th

Cals Bee) 2 ee es ee Oe. 4

Middlesex County Bd. Of Chosen

Freeholders v. New Jersey,

645 F. Supp. 715, 719 (D.N.J.

See): ke ee oe ee we re es ee

Reves v. Ernst & Young, 507 U.S.

Siee ar? See se eee &, ae: oe *

Tafflin v. Levitt, 493 U.S. 455,

Gee (see): «a 4a ee wee eS ee

Taylor v. Bureau of Indian Affairs,

867 F.2d 1094, 1098 (8th

Gal. Beeee 4: 6 6 Se Re ae Ss eS

Train v. Natural Resources Defense

Council, Inc., 421 0.8. 60 (1975). .

Yellow Freight, Inc. v. Donnelly,

S06 :-Uies. CBG Ci90G)- 2s 6h es oes

Statutes Cited:

Ge. U.8.6. Bees fee. see eX eee

42 U.S.C. Section 2000e-5(f) (3) .....

Page

OPINIONS OF THE COURTS BELOW

The opinion of the trial court granting

summary judgment is published at 953 F. Supp.

890 (S.D. Ohio 1996). The opinion of the

appeals court is published at 148 F.3d 606 (6th

Cir. 1998).

JURISDICTION OF THE SUPREME COURT

28 U.S.C. 1254(1) provides for

jurisdiction to issue a writ of certiorari to

the Court of Appeals reviewing its decision and

judgment entered on June 24, 1998.

UNITED STATES STATUTORY PROVISION INVOLVED

42 U.S.C. 6972(a) (1) (B), reads as

follows:

Except as provided in subsection (b) or

civil action on his own behalf --

* * * 7 * * * * *

(B) against any person, including the

United States and any other governmental

instrumentality or agency, to the extent

permitted by the eleventh amendment to the

Constitution, and including any past or present

generator, past or present transporter, or past

or present owner or operator of a treatment,

storage, or disposal facility, who has

contributed or is contributing to the past or

present handling, storage, treatment,

transportation, or disposal of any solid or

hazardous waste which may present an imminent

and substantial endangerment to health or the

environment;

* * * . * * * * *

Any action brought under paragraph (a) (1) of

this subsection shall be brought in the

district court for the district in which the

alleged violation occurred or the alleged

endangerment may occur.

og * * * * * * * *

STATEMENT OF THE CASE

This is a citizen action for abatement of

hazardous waste contamination found on

petitioners’ property. Petitioners filed a

civil action in state court for common law

relief and this parallel federal action under

42 U.S.C. 6972(a) (1) (B) (1984) for injunctive

relief and civil penalties. While the federal

action was stayed by agreement, the state

courts entered judgment requiring respondent,

Sun Oil Company, to cleanup the contamination

in an expeditious manner. Thereafter, the

federal district court granted summary judgment

dismissing the federal action, finding it was

barred by the doctrine of res judicata, because

it could have been brought in state court under

concurrent state court jurisdiction. The only

other courts to address the issue had ruled

that the 42 U.S.C. 6972(a) (1) (B) action was

within the exclusive original jurisdiction of

the federal district courts. The district

court followed a 1994 Sixth Circuit ruling

requiring an express withdrawal of state court

jurisdiction and found that "shall be brought

in the district court for the district in which

the - « « alleged endangerment may occur", to

be ambiguous and "just as readily [could] be

interpreted as a specific venue provision and

not an express withdrawal of state court

jurisdiction."

The Court of Appeals affirmed without any

discussion of all the statutory language

designating the identity of the court where the

citizen abatement action could be brought.

Rather, it relied on its 1994 precedent,

interpreting this Court to require an express

withdrawal of state court jurisdiction, and

found that Congress‘ enactment twelve years

earlier did not meet this later judicial test,

and, therefore, there was concurrent state and

federal court jurisdiction. It found that the

mandatory language "shall be brought in the

district court for the district in which the

. « « alleged endangerment may occur", "does

not affirmatively divest the state courts of

their presumptive jurisdiction.” 1448 F.3d at

612. It affirmed the trial court.

REASONS FOR GRANTING THE WRIT

The Sixth Circuit decision stands in

conflict with the ruling of the Eighth Circuit,

as well as a district court decision finding

exclusive federal court jurisdiction, relied on

for twelve years. Taylor v. Bureau of Indian

Affairs, 867 F.2d 1094, 1098 (8th Cir. 1989)

and Middlesex County Bd. Of Chosen Freeholders

v. New Jersey, 645 F. Supp. 715, 719 (D.N.J.

1986). The Sixth Circuit and the Ohio district

court ignored the most fundamental principle of

statutory construction, the “plain meaning" of

the language used by Congress, in imposing the

judicially created presumption. See Reeves v.

Ernst & Young, 507 U.S. 170, 177 (1993).

42 U.S.C. 6972(a) (1), in mandatory

language, states that the created federal

action to abate an environmental hazard "shall

be brought in the district court for the

district in which the alleged violation

occurred or the alleged endangerment may

occur." It specifies a court, not a location.

That is plain.

The lower courts ignored the other

language in Section 6972 that repeatedly

referred to the newly created federal action as

being in the United States Court. These

provisions are:

(1) Section 6972(a) (2) specifies that

actions "be brought in the district court for

the district in which the alleged violation

occurred or in the District Court of the

District of Columbia." This is a clear

designation of exclusively federal courts. No

state has a District Court in the District of

Columbia.

(2) 42 U.S.C. 6972(b) (1) (B) recognizes

that the EPA Administrator or a State may be

enforcing hazardous waste laws in federal court

or state court, respectively. It is the only

reference in Section 6972 to “state” court,

demonstrating that Congress knew some :

government initiated environmental actions

could be in state court, but never mentioned

such a possibility for a citizen enforcement

action.

(3) Subsection (b) (1) provides for

intervention of right in an "action under

subsection (a) (1) (A) in a court of the United

States”, referring to the similar citizen suit,

again naming the court. Under the Court of

Appeals ruling, intervention would be

authorized in federal, but not state court

actions; an absurd result.

(4) Subsection (b) (2) (E) also provides

for intervention in a citizen abatement action,

described as being “in a court of the United

States". It «would be illogical to limit it.to

federal court, if it could also be brought in a

state court.

(5) Subsection (b)(1)(F) repeats the

description of the action as "brought under

(a) (1) (B) in a court of the United States”. A

copy must be served on the Attorney General and

the EPA Administrator. Under the Court of

Appeals ruling, such service would only be

required if in federal court, not state court--

an illogical result. Only federal courts were

intended.

(6) Section 6972(e) provides for the

award of costs to the prevailing party and

authorizes the court to require “the filing of

a bond or equivalent security in accordance

with the Federal Rules of. Civil Procedure.”

Congress presumably knows the federal rules

apply in the federal district courts.

The district court read the designation

of the district court as just as likely a

specific venue provision. Not only does that

conclusion ignore the designation of the

district court, but it fails to recognize

Section 6972(c), which provides for notice in

an action against the EPA Administrator, then

states, "Any action respecting a violation

under this Act may be brought under this

section only in the judicial district in which

such alleged violation occurs." This is a

"specific venue" provision. It is illogical to

conclude that section 6972 has two venue

provisions. The district court erroneously

viewed subsection (a) (1) (B), which does not

refer to the judicial district, but identifies

the court where the action must be brought, as

a specific venue provision. There is no

support for the district court ruling that the

(a) (1) (B) language could be for venue.

The Court of Appeals erred in ignoring

the plain language selected by Congress in

1976, and focusing on the stricter judicial

requirements found in its decision in 1994.

Holmes Fin. Associates v. Resolution Trust

Corp., 33 F.2d 561 (6th Cir. 1994). It viewed

this Court's decision in Yellow Freight, Inc.

v. Donelley, 494 U.S. 820 (1990), as requiring

an express withdrawal of state court

jurisdiction, rather than discerning intent

from the totality of the statutory language.

The Court did not determine congressional

intent. It retroactively imposed its view of

the legal standard adopted in 1990, on the 1976

Congress.

In 1976, Congress was adopting another in

a line of environmental statutes, "taking a

stick to the states”, Train v. Natural

Resources Defense Council, 421 U.S. 60 (1975),

and incorporating a citizen suit provision as

it had in the earlier statutes. In fact, it

made slight modifications to the standard

citizen suit section specifically identifying

the only courts with jurisdiction. At that

time there was no judicial requirement that

Congress affirmatively withdraw state court

jurisdiction, which the Sixth Circuit now reads

as requiring an express withdrawal based on

this Court's 1990 rulings.

Furthermore, this Court's Yellow Freight

and Tafflin v. Levitt, 493 U.S. 455, 458 (1990)

rulings neither require that Congress must

expressly withdraw state court jurisdiction nor

preclude using the “plain meaning” principle to

determine Congressional intent from the

descriptions of the court designated to hear

the claim. Contrary to the Sixth Circuit's

approach, there was no indication that the

courts should ignore the "plain meaning" of the

statute.

The Sixth Circuit erroneously treated the

mandatory designation of the district court in

section 6972(a) as synonymous with the Title

VII provision interpreted in Yellow Freight.

See 148 F.3d at 612. Section 6972 does not

simply confer jurisdiction as does the Title

VII provision. It directs in what court the

action “shall” be brought. The Sixth Circuit

distorts the plain meaning of the sentences in

its comparison of the words "shall have” in 42

SO ee Cd

U.S.C. 2000e-5(f) (3) of Title VII and "shall”

in section 6972(a). The Title VII provision

states that the district courts "shall have"

jurisdiction, conferring jurisdiction, while

section 6972(a) states the action "shall be

brought in the district court... -" The

Court of Appeals’ dissection of the mandatory

words from the context, with the simple

conclusion that mandatory words are

insufficient, does not do justice to the

significant difference in the language chosen

by Congress, and, certainly, is contrary to the

plain meaning. There is no doubt that Congress

designated the district courts as the chosen

forum for its citizen enforcement actions.

The Court of Appeals also failed to note

that section 6972 does contain a provision that

confers jurisdiction, similar to the Title VII

provision, except that it confers the remedial

jurisdiction on "the" district court. 42

U.S.C. 6972(a), second paragraph.

CONCLUSION

This Court should accept jurisdiction,

resolve the conflict between the circuits, and

clarify that the courts may use the usual rules

of statutory construction, including applying

the plain meaning of the language used by

Congress, to determine whether it intended for

an action to be brought exclusively in federal

court. It should reverse the court of appeals

and also find that the language used by

Congress in the 1976 enactment of a special

citizen suit action in the Resource

Conservation and Recovery Act ("RCRA"), 42

U.S.C. 6972(a) (1) (B), for a citizen to obtain |

abatement of an environmental hazard from

disposal of hazardous waste, which names the

district court in which the action “shall be

brought", adequately demonstrates that it

intended exclusive federal court jurisdiction.

Respectfully submitted,

A. Mark Segreti, Jr.

(0009106)

Trial Attorney

HAFFEY & SEGRETI

2365 Lakeview Drive, Ste.D

Dayton, OH 45431

(937) 429-8595; fax-429-8590

Attorney for Petitioner

A hl A ee PA a a tA D EL LENT AA LATO

OT EO ens eee ee

APPENDIX

Davis v. Sun Oil Company, 148 F.3d 606

(6th Cir. 1998) be © e

Court of Appeals Judgment scales

June 24, 1998 ° se

Davis v. Sun Oil Company, 953 F. Supp.

890 (S.D. Ohio 1996) +. %

District Court Judgment Entry,

August 27, 1996...

42 U.S.C. Section 6972 ..

en eee St ae

€

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DONALD P. DAVIS and

MAXINE ELAINE DAVIS,

Plaintiffs-Appellants,

No. 96-4077

Vv.

SUN OIL COMPANY,

Defendant-Appellee.

Appeal from the United State District Court

for the Southern District of Ohio at Dayton

No. 93-00408--Walter H. Rice,

Chief District Judge

Argued: August 1, 1997

Decided and Filed: June 24, 1998

Before: MERITT, WELLFORD, and BOGGS, Circuit

Judges

COONSEL

ARGUED: A. Mark Segreti, Jr., HAFFEY &

SEGRETI, Dayton, Ohio, for Appellants.

Michael R. Blumenthal, McMAHON, DeGULIS &

HOFFMAN, Cleveland, Ohio, for Appellee.

ON BRIEF: A. Mark Segreti, Jr., HAFFEY & SEGRETI,

Dayton, Ohio, for Appellants. Michael R.

Blumenthal, David S. Hoffmann, MCMAHON, DeGULIS &

HOFFMANN, Cleveland, Ohio, for Appellee.

The court delivered a PER CURIAM opinion. BOGGS,

J. (pp. 14-19), delivered a separate opinion

concurring in part and dissenting in part.

OPINION

PER CURIAM. Donald and Maxine Davis brought this

action under the Resource Conservation and Recovery

Act ("RCRA"), 42 U.S.C. § 6972(a) (1) (B), against Sun

Oil Co. ("Sun"). In Davis v. Sun Oil Co., 929 F.

Supp. 1077 (S.D. Ohio 1996) ("Davis I"), the district

court denied the Davises' motion for summary

judgment, and in Davis v. Sun Oil Co., 953 F. Supp.

890 (S.D. Ohio 1996) ("Davis II"), it granted Sun's

motion for summary judgment. We AFFIRM.

The facts of this case may be found in detail in

Davis v. Sun Refining and Marketing Co., 671 N.E.2d

1049 (Ohio App. 1966), of which we take judicial

notice. To summarize the situation, in 1985 the

Davises purchased from Sun a parcel of land on which

Sun had operated a Sunoco filling station. Prior to

the sale, Sun told the Davises that it was removing

the four 6,000 gallon underground gasoline storage

tanks on the property, and did so. In 1989, the

Davises contracted to sell the land to United Dairy

Farmers ("UDF"), subject to an environmental

inspection. When UDF's consultants tested the land,

they discovered quantities of gasoline in the soil,

emanating from buried gasoline pipes that had

connected the tanks and the gas pumps; Sun had left

the piping in place and covered it up with dirt when

the tanks were removed. Faced with the prospect of

a lawsuit, Sun executed with the Davises a letter

agreement pledging to ciean up the site.

After Sun largely failed to do so, the Davises

sued Sun in state court in May 1991, alleging

nuisance, breach of contract, and fraud.’ In

September of 1993, a referee conducted a three-day

trial, and in December of 1993, filed a report with

the court recommending that Sun be found to be in

breach contract, and that the Davises be awarded

damages equal to what they had already spent in an

effort to clean up the site, and specific

performance of the letter agreement. The referee

also recommended that Sun be found liable for

fraud, and that the Davises be awarded punitive

damages. In March of 1995, the state court issued

a decision and entry adopting the referee's

recommendations. As to the specific performance

remedy, the court required Sun to clean up the site

so as to satisfy state regulatory guidelines within

one year, and to post a $400,000 bond as guarantee.

In January, 1996, the state court of appeals

affirmed the decision of the trial court, except

that it modified the specific performance award, on

the grounds that cleaning up the site so as to meet

state regulations might take more than one year.

The appellate court ordered Sun “to complete the

cleanup in an expedited manner, in full accordance

with all requirements and regulations promulgated

by the fire marshall [sic] [the state agent charged

with regulating underground storage tanks]."

Davis, 671 N.E.2d 1049.

Meanwhile, in October of 1993, the Davises

brought this RCRA action in federal district court,

alleging that Sun, by leaving gasoline buried in

the property, had"contributed to and caused the

disposal of solid or hazardous waste on the

property which may present an imminent and

The complaint in state court originally included a

Claim for violations of federal law, which were

eliminated in an amended complaint. No specific

statutory basis was stated for the federal

allegations, and we do not know why the Davises

dropped them from the lawsuit.

substantial endangerment to health or environment,"

in violation of RCRA, 42 U.S.C. § 6972(a) (1) (B).

The court held a pretrial conference and, in July

of 1994, issued the first of a series of orders

staying proceedings pending the resolution of the

litigation in state court, and requesting timely

status reports with respect to the other action

pending.

In July, 1995, the Davises moved for summary

judgment. They argued that

the essential factual elements of a claim under

42 U.S.C.§ 6972 have been finally determined by

the Court of Common Pleas of Cuyahoga County,

Ohio .. . [which] specifically found that the

contamination indicated “high levels of benzene,

toluene, ethyl benzene and xylenes (together

called “BTEX"), lead and PHC. The PHC levels

exceeded the State's guidelines.” .. . The

several findings of high levels of benzene

necessarily determines that there may be an

imminent and substantial endangerment. See 40

C.F.R. “§ 141.32 and 141.50(a). thus, through

the principles of collateral estoppel, Defendant

Sun is now estopped from contesting the findings

of the Court of Common Pleas. .. . Under Ohio

law, those issues are determined aid are entitled

to preclusive effect. 28 U.S.C. § 1738 requires

that the Court give them the same preclusive

effect. Marrese v. American Academy of

Orthopedic Surgeons, 470 U.S. 373 (1985); Migra

v. Warren City School Bd., 465 U.S. 75 (1984);

Kremer v. Chemical Constr. Corp., 456 U.S. 461,

481-82 (1982).

The district court rejected the Davises'

argument, correctly observing that the precise

issue of whether the contamination “may present an

imminent and substantial endangerment to health or’

the environment” had never been actually litigated

and determined by the state court. Therefore, the

issue was not precluded from further litigation.

929 F.Supp. at 1081.”

Further, the court held that summary judgment was

inappropriate because there was a genuine issue of

material fact as to whether the contamination "may

present an imminent and substantial endangerment."

The Davises and Sun each presented affidavits by

consulting engineers, who, after evaluating the

same environmental assessment that had been

submitted as evidence in state court reached--

unsurprisingly--opposite conclusions on this

question. As the court observed, "(t])his

disagreement by the experts retained by each of the

parties, would appear to create a genuine issue of

material fact as to the ultimate legal issue in

this case." Id. at 1082.

The court also rejected the Davises' attempted

use of the Environmental Protection Agency

regulations cited in their brief to establish a

standard for the level of contamination that might,

as a matter of law, "present an imminent and

substantial danger." The district court noted that

the cited EPA regulations pertain to contamination

levels in drinking water, not in soil, and

observed:

There is simply no evidence as to either the

- precise quantity of gasoline which remains in

the soil; whether this seepage either currently

has an effect on the drinking water, or is

likely to have such an effect; or what the

Although the judgment of the Ohio court did not

settle as a matter of law the issue of RCRA

liability, we hold that other facts and issues

actually and necessarily litigated and determined

by the Ohio court are precluded from relitigation,

in accordance with Ohio's law of issue preclusion.

See Whitehead v. General Tel. Co., 254 N.E.2d 10,13

(Ohio 1969); overruled in part by Grava v. Parkman

Township, 653 N.E.2d 226, 229(1995); see also

Hapgood v. City of Warren, 127 F.3d 496 (1997).

magnitude of such an effect might be, in regard

to health or the environment. Although this

Court could speculate on these issues, such

speculation would not provide a proper basis

for summary judgment.

RCRA is a remedial measure -that courts have

tended to construe and apply in a liberal, though

not unbridled, manner. The Second Circuit has

discussed the statute as follows:

When congress enacted RCRA in 1976, it sought

to close “the last remaining loophole in en-

vironmental law, that of unregulated land

disposal of discarded materials and hazardous

wastes." RCRA's waste management requirements

for disposal facilities are designed not only

to prevent, but also to mitigate endangerments

to the public health and the environment.

Significantly, congress used the word "may"

to preface the standard of liability: "present

an imminent and substantial endangerment to

health or the environment.” This is "expansive

language", which is "intended to confer upon

the courts the authority to grant affirmative

equitable relief to the extent necessary to

eliminate any risk posed by toxic wastes."

The statute is “basically a prospective act

designed to prevent improper disposal of

hazardous wastes in the future." It is not

specifically limited to emergency-type situa-

tions. A finding of “immanency"” does not

require a showing that actual harm will occur

immediately so long as the risk of threatened

harm is present: "An imminent hazard' may be

declared at any point in a chain of events

which may ultimately result in harm to the

public." Imminenence refers "to the nature

of the threat rather than identification of

the time when the endangerment initially arose."

In addition, a finding that an activity may

present an imminent and substantial endangerment

does not require actual harm. Courts have

a inammite ileal i

AR ie) AI ie ee ee aon

consistently held that "endangerment" means a

threatened or potential harm and does not require

proof of actual harm.

Dague v. City of Burlington, 935 F.2d 1343, 1355-56

(2d Cir. 1991) (citations omitted) .?

In keeping with the language recited in Dague,

courts might in some cases be justified in holding,

as a matter of law, that a certain degree of

hazardous waste at a particular site "may present an

imminent and substantial endangerment." They could

do so where the specific circumstances of the

disposal site presented such large and unmitigated

hazards (such as the amount and type of waste,

combined with its proximity to the public) that

“reasonable minds could not differ as to the import

of the evidence." See Anderson v. Liberty Lobby,

477 U.S. 242,250 (1986). The district court cited,

and correctly distinguished, two such cases, in

which the particular facts had been held to justify

summary judgment. Davis II, 953 F.Supp. at 1083

n.3. We agree with the district court's

explanation, noted above, of why the determination

by the Ohio court that Sun had polluted the soil in

that manner and degree shown by the submitted

evidence was not by itself adequate to settle as a

In Meghrig v. KFC Western, Inc., 116 S.Ct. 1251

(1996), the Supreme Court stated that, under §

6972(a) (1), “[a]n endangerment can only be imminent

if it threatens to occur immediately." Id. at 1255

(internal quotations and citation to dictionary

definitions of "imminent" omitted). The Court made

this observation in support of its holding that the

citizen suit provision of RCRA did not afford as a

remedy the costs of a clean-up undertaken prior to

the filing of the lawsuit; once a site is cleaned

up, it can no longer present the threat that is a

predicate for the action. It is not clear whether

the Court intended to refute the reading of

“imminence” contained in cases such as Dague: a

looming threat of harm, but not necessarily a

looming harm.

matter of law the question of whether the pollution

“may present an imminent and substantial

endangerment." Accordingly, we affirm the district

court's denied of the Davises' motion for summary

judgment.

IItI

The district court next addressed Sun's claim

that the doctrine of res judicata prevents the

Davises from maintaining this federal action. In

its cross-motion for summary judgment, Sun argued

that “Plaintiffs have obtained the only relief they

are entitled to under 42 U.S.C.§ 6972 by the

decision and order in plaintiffs’ parallel state

cause of action. By the application of the common

law doctrine of res judicata, plaintiffs cannot

maintain the present action having obtained the same

relief in state court."

It would be possible to reformulate Sun's theory

as a challenge to the Davises' standing to bring

their RCRA action--specifically, as an assertion

that the Davises fail to meet the "remedial benefit”

requirement of standing. See Worth v. Seldin, 422

U.S. 490,508 (1975) (plaintiff lacked standing to

challenge city's zoning ordinance where unable to

show that “he personally would benefit in a tangible

way from the court's intervention"); Linda R.S. v.

Richard D., 410 U.S. 614,618 (1973) (mother had no

standing in suit to compel prosecution of father for

failure to pay child support where successful action

"would result only in the jailing of the child's

father. The prospect that prosecution will

result in payment of support can, at best, be termed

only speculative.") See generally 13 Charles Alan

Wright & Arthur R. Miller, FEDERAL PRACTICE AND

PROCEDURE § 3531.6. Sun may not prevail on such a

theory, however, because the Davises may benefit

from the pressure placed on Sun to remedy the

pollution by the daily-accruing penalties.

Alternatively, Sun's argument could be viewed as

expressing the facet of the mootness doctrine under

which it may be held that "[i]Jf full relief is

accorded by another tribunal, a proceeding seeking

eae

i SI a NE Bg ae errs

Were the Davises to win the RCRA suit, Sun argued,

they would be entitled to nothing more than an order

requiring Sun to take "necessary action,” i.e., to

investigate the site, to remediate the site, etc.

Sun claims that the Davises have, in fact, already

obtained an order from the state court requiring Sun

"to clean up the contamination on the property.” In

an attempt to demonstrate that the Davises had al-

ready obtained all the relief they could get, Sun

argued (correctly, in light of Meghrig v. KFC

Western, Inc., 116 S.Ct. 1251(1996), see n.3 supra)

that the Davises would not be entitled under RCRA to

compensation for the costs they had incurred in

their partial efforts te clean up the site. Sun also

argued that the Davises could not seek imposition of

the civil penalties available under §6928(g), which

provides:

Any person who violates any requirement of this

subchapter shall be liable to the United States

for a civil penalty in an amount not to exceed

$25,000 for each such violation. Each day of such

violation shall, for purposes of this subsection,

constitute a separate violation.

Initially, the district court rejected Sun's

argument that the Davises could not enforce the

civil penalty provision as a private party. Indeed,

civil penalties payable to the United States may be

awarded in a citizen suit brought under §6972(a).

See Clorox Co. v. Chromium Corp., 158 F.R.D. 120,

128 (N.D.I11.1994); cf. Middlesex County Sewerage

Auth v. Sea Clammers Ass'n., 453 U.S. 1, 14 n.25

(1981) (recognizing availability of civil penalties

in suits brought under 33 U.S.C. §1365(a), the

citizen-suit provision of the Federal Water Pollu-

tion Control Amendment of 1972).

The district court then noted Sun's argument that

the same relief is moot. . ." See 13A Wright &

Miller §3533.2 & n.28(citing cases). Where

substantial civil penalties might be assessed

against Sun, the case is clearly not moot.

the Davises could not maintain the federal action

under the doctrine of res judicata, because they had

obtained in state court all the relief the district

court could have given them in the federal litiga-

tion. Th» court declined to address that claim

specifically, however, because it found that even if

the Davises had not obtained all such relief in

state court, Ohio's laws on claim preclusion pre-

vented the Davises from maintaining the federal

action.

The district court relied on Stuhlreyer v. Armco,

Inc., 12 F.3d 75(6th Cir.1993), as an accurate

statement of Ohio's law on claim preclusion:

State judicial proceedings are entitled to the

same preclusive effect in federal court as they

would receive in the judgment-rendering state

--+ In Ohio, “[t]he doctrine of res judicata is

that an existing final judgment rendered upon the

merits, without fraud or collusion, by a court of

competent jurisdiction, is conclusive of rights,

questions and facts in issue, as to the parties

and their privies, in all other actions in the

same or any other judicial tribunal of concurrent

jurisdiction."' ... This includes all claims which

were or might have been litigated in the first

lawsuit ... Thus, under Ohio law, claim preclusion

requires that the rendering court possess subject

matter jurisdiction over the original claim.

Stuhlreyer, 12 F.3d at 77(citations omitted); see

Grava v. Parkman Township, 653 N.E.2d 10,13(Ohio

1969) (holding that "a valid, final judgment rendered

upon the merits bars all subsequent actions based

upon any Claim arising out of the transaction or

occurrence that was the subject matter of the

previous action.") In accordance with this rule

against “claim-splitting," the district court turned

to the question of whether the RCRA suit “might. have

been litigated" in the state court proceedings or

whether, instead, the federal courts enjoyed exclu-

sive jurisdiction over such matters.

The district court recognized that Tafflin v.

Levitt, 439 U.S. 455(1990), and Yellow Freight

System, Inc. v. Donnelly, 494 U.S. 820(1990), are

important in resolving the question of whether

federal jurisdiction is exclusive in citizen suits

brought under the RCRA. These two cases require that

Congress either expressly state that federal juris-

diction is exclusive or in some other affirmative

way overcomes the strong presumption that jurisdic-

tion is concurrent with state courts. This doctrine

is an integral part of our system of federalism. The

federal courts cannot create Congressional intent,

if it is left unstated, by making an assumption that

federal jurisdiction should be exclusive. Rather,

the strong presumption is in favor of concurrent

jurisdiction in the state court. See Holmes Fin.

Assocs. v. Resolution Trust Corp., 33 F.3d 561,565

(6th Cir.1994) (holding that Congress must “affirma-

tively divest" the state courts of their

“presumptive competence" to hear cases arising under

federal law).

In the instant case, we find that the citizen suit

provision of the RCRA does not expressly provide for

exclusive jurisdiction.*® As in the legislation

scrutinized in Tafflin and Yellow Freight, Congress

did not specifically deal with the question. We dis-

agree with the analysis in Middlesex County Bd. of

Chosen Freeholders v. New Jersey, 645 F.Supp. 715

(D.N.J. 1986), in which the district court held that

the enforcement provision of the RCRA creates exclu-

sive jurisdiction in the federal courts. That provi-

sion provides that RCRA private suits "shall be

brought in the district court for the district in

which the alleged violation occurred or the alleged

endangerment may occur." 42 U.S.C.§6972 (emphasis

added). The Middlesex court found that the term

"shall" was mandatory, not discretionary. The court

also found that the legislative history of the RCRA

indicated that “Congress did not contemplate that

The Davises do not argue that the statutory scheme

of the RCRA would plainly be disrupted by the exer-

cise of state-court jurisdiction. See Holmes, 33

F.3d at 569.

RCRA suits would be brought in State courts." Id. at

719. We disagree with that reasoning. In our view,

the term "shall" as it is used in the statute does

not affirmatively divest the state courts of their

presumptive jurisdiction. In Yellow Freight, the

Supreme Court rejected a similar argument made with

respect to a provision in Title VII which states

that “[e]Jach United States district court and each

United States court of a place subject to the juris-

diction of the United States shall have jurisdiction

under this subchapter.” Yellow Freight, 494 U.S. at

823 (quoting 42 U.S.C. §2000e-5(f) (3) (emphasis

added.) The “shall have" language in that statute

was not deemed to be sufficient evidence that

Congress intended to divest the state courts of

jurisdiction over those matters. In the same way,

the “shall” language in the RCRA enforcement provi-

sion does not grant exclusive jurisdiction to the

federal courts in suits brought pursuant thereto.

The dissent is of the view that, even if juris-

diction is concurrent, Sun may not rely on a res

judicata defense because it acquiesced in the claim-

splitting. We disagree. Sun gave notice to the

plaintiffs that it would rely on the defense of res

judicata in its answer, which specifically states

that Sun is relying upon the doctrine of res

judicata as a defense. The district court relied

upon that pleading and held the doctrine of res

judicata applicable as a defense, and the court did

not err in holding that the doctrine applies. There-

fore, the proper application of the doctrine pre-

cludes this action in federal court. We conclude,

moreover, that the defense was not waived in the

district court. Having stated in its answer that

“Plaintiffs' claims are barred by the doctrine of

res judicata," defendant may rely on this defense

and we find no error in the district court's

determination.

We join with the dissent that "26 of the RESTATE-

MENT OF JUDGMENTS adopted in Grava v. Parkman Town-

ship, 653 N.E.2d 226,229 (Ohio 1995), precludes

claim-splitting except where "the parties have

agreed in terms or in effect that the plaintiff may

split his claim, or the defendant has acquiesced

therein." Sun did not agree to plaintiff's claim-

splitting, and we cannot agree with the dissent that

it acquiesced in this respect. Sun defended on the

doctrines of both waiver and res judicata. We do not

construe Matter of Super Van, Inc., 92 F.3d 366 (3d

Cir.1996), to support plaintiff's position in this

case. Super Van defendants did not plead res

judicata, and defendants indicated to the bankruptcy

court that they “preferred not to have the two

action [one in state court and one in federal court]

consolidated." Id. at 371. By reason of this

action, contrary to defendant's posture in the in-

stant case, defendants were deemed to have

acquiesced in the plaintiff's claim-splitting. We

believe, therefore, contrary to the dissent, that

plaintiffs were not treated unjustly and that they

had fair notice of the defendant's claim of res

judicata.

We are mindful, as the dissent points out, that

the defense of res judicata can mean several things.

The district court relied on the “other action pend-

ing™ facet of the res judicata doctrine in finding

that this federal suit was barred. It is unfortunate

that the district court did not earlier rule on the

issue, at a time when the Davises could have had the

opportunity to amend their state-court action to add

the RCRA suit if they so desired. But we are of the

view that Sun properly asserted the defense in its

answer, and that the district court was warranted in

addressing all aspects of the res judicata claim.

Accordingly, we AFFIRM the denial of the

plaintiffs' motion for summary judgment and the

granting of defendant's motion, and entry of

judgment for the defendant.

CONCURRING IN PART, DISSENTING IN PART

BOGGS, Circuit Judge, concurring in part and dis-

senting in part. I concur in parts I and II of the

court's opinion of this case. I dissent from the

holding in part III that Sun Oil's general invoca-

tion of "res judicata" in its amended answer

suffices to overcome Sun's acquiescence in the main-

tenance by Davis of concurrent actions in state

court and federal court.

Section 24 of the Restatement of Judgments (2d)

(1982), which articulates the rule against claim-

splitting, provides that it is subject to the

exceptions described in §26. Consequently, when the

Ohio Supreme Court “expressly adhere[d] to the

modern application of the doctrine of res judicata"

found in §§24-25, see Grava v. Parkman Township, 653

N.E.2d 226,229(Ohio 1995), it also adopted §26 of

the Restatement, which provides, in pertinent part:

EXCEPTIONS TO THE GENERAL RULE CONCERNING

SPLITTING

(1) When any of the following circumstances

exists, the general rule of §24 does not apply

to extinguish the claim, and part or all of the

claim subsists as a possible basis for a second

action by the plaintiff against the defendant:

(a) The parties have agreed in terms or

in effect that the plaintiff may split

his claim, or the defendant has

acquiesced therein... .

The accompanying comment states in part:

A main purpose of the general rule stated in §24

is to protect the defendant from being harassed

by repetitive actions based on the same claim.

The rule is thus not applicable where the defend-

ant consents, in express words or otherwise, to

the splitting of the claim ... Where the plaintiff

is simultaneously maintaining separate actions

based upon parts of the same claim, and in neither

action does the defendant make the objection that

another action is pending based on the same claim,

judgment in one of the actions does not preclude

the plaintiff from proceeding and obtaining

judgment in the other action. The failure of the

defendant to object to the splitting of the

plaintiff's claim is effective as an acquiescence

in the splitting of the claim.

Sun filed an amended answer to the Davises' RCRA

suit on March 22, 1994, asserting, among other

defenses, that “Plaintiff's claims are barred by the

eee ver ee

doctrine of waiver," and "Plaintiff's claims are

barred by the doctrine of res judicata." The

question arises whether this was an objection, or a

sufficient one, to the Davises' claim-splitting. I

conclude that it was not, and that Sun thereby in

effect acquiesced in the bringing of the federal

action. See, e.g., In re Super Van, Inc., 92 F.3d

366,371 (5th Cir. 1996); Clements v. Airport Auth.

of Washoe County, 69 F.3d 321,328 (9th Cir. 1995);

Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064,

1072-73 (3d Cir.1990); Calderon Rosado v. General

Elec. Circuit Breakers, Inc., 805 F.2d 1085,1085

(lst Cir. 1986).

Conceivably the mention of waiver suggests that

the Davises waived their opportunity to bring the

RCRA claim in state court, but that is a speculation

never borne out in Sun's briefs below. As for the

defense of res judicata, it is true that claim-

splitting falls under that broad heading. But Sun's

brief below suggests that by claiming this defense,

it was not complaining of claim-splitting, but was

advancing its theory of full remedies discussed

above at 8-10.°

I note, too, the boiler-plate nature of Sun's

amended answer. Here it is useful to look to the

rules pertaining to the pleading of affirmative

defenses. I recognize, of course, that FED R.CIV.P

8(e) provides that "[n]o technical forms of plead-

ings or motions are required." But requiring an

affirmative defense to be stated in an intelligible

manner is not a mere formalism. While the rule

against splitting claims is essential to the repose

This court has had occasion to comment on the con-

fusion caused by the use of the broad term "res

judicata," and to "express our hope that future

litigants, in the interests of precision and

clarity, will formulate arguments which refer solely

to issue or claim preclusion and which refrain from

using the predecessors of those terms, whole mean-

ings have become so convoluted." Barnes v. McDowell,

848 F.2d 725,728 n.5(6th Cir. 1988).

to which defendants are ultimately entitled, it must

be applied fairly to plaintiffs, as well. An

essential aspect of that fairness is adequate notice

of the nature of the affirmative defense. "Res

judicata and collateral estoppel are affirmative

defenses that must be pleaded ... The purpose of

such pleadings is to give the opposing party notice

of the plea of estoppel and a chance to argue, if he

can, why the imposition of an estoppel would be

inappropriate." Blonder-Tongue Labs, Inc. v.

University of Ill. Found., 402 U.S. 313, 350 (1971).

"An affirmative defense may be pleaded in general

terms and will be held to be sufficient, and there-

fore invulnerable to a motion to strike, as long as

it gives plaintiff fair notice of the nature of the

defense.” 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

5 FEDERAL PRACTICE AND PROCEDURE §1274 (emphasis

added). "Rule 8(c), by requiring defendant to plead

his defense or risk waiving it, also served the

purpose of giving the opposing party notice of the

defense and an opportunity to argue why his claim

should not be barred completely." Id. at §1270.

"Another highly relevant consideration [as to

whether a theory must be pleaded as an affirmative

defense] is whether plaintiff will be taken by

surprise by the assertion at trial of a defense not

pleaded affirmatively by the defendant.” Id. at

§1271. “The requirement that affirmative defenses be

specifically pleaded is based on notions of fair

play. A party should not have to deal with an

extraneous issue in a lawsuit unless it is

specifically brought to his attention ... More

important, what matters is not whether the magic

words ‘affirmative defense’ appears in pleadings,

but whether the Court and the parties were aware of

the issues involved." Baker v. City of Detroit, 483

F.Supp. 919,921 (E.D.Mich.1979), aff'd on other

grounds sub nom. Bratton v. City of Detroit, 704

F.2d 878, vacated on rehearing, 712 F.2d 222 (6th

Cir. 1983).

In short, I do not think that Sun's cloudy answer

sufficed--if such was its intent at all--to put the

Davises on fair notice that Sun objected to the

Davises' maintenance of separate state and federal

actions. A useful comparison can be found in

Diversified Foods, Inc. v. First Nat'l Bank of

Boston, 985 F.2d 27,29 (ist Cir.1993), where, in

answering the complaint in the successive federal

suit, the defendants "included as a defense the

assertion that the borrowers ‘have improperly split

their causes of action, having previously filed in

another court another complaint arising out of the

same transaction or series of transactions.'" The

court held that defendants who had presented such a

plain objection could hardly be found to have

acquiesced in the split claim.

The prejudice to the Davises is obvious. If they

had perceived such an objection, then they could

have repaired to state court before the entry of

judgment, seeking to amend their complaint to

include a RCRA count. Or they could have asked the

district court to strike the defense, and mustered

arguments at that time in favor of exclusive federal

jurisdiction.

The difficulty for the Davises was compounded by

the fact that no court, so far as I can tell, had

ever held that RCRA cases could be brought in state

court, and that numerous courts had either held or

assumed that jurisdiction was exclusively federal.’

See Middlesex County Bd. of Chosen Freeholders v.

New Jersey, 645 F.Supp. 715,719 (D.n.J.1986); Jilot

v. Colorado, No. 95CA1719, 1996 WL 714482, at *2

(Colo. App. Dec. 12, 1996) (unpublished pending

appeal). A number of other courts have stated or

assumed that RCRA jurisdiction is exclusively

federal. Together, the effect of these cases is an

emphatic consensus that RCRA jurisdiction is

exclusively federal. yet none of the cases apply

with full rigor the analytic framework erected by

the Supreme Court in the line of cases beginning

with Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S.

473(1981) and culminating in Yellow Freight System,

Inc. v. Donnelly, 494 U.S. 820(1990).

The Eighth Circuit has flatly stated that "RCRA

places exclusive jurisdiction in federal courts for

suits brought pursuant to section 6972(a)(1)... ."

Nor do we find any report of RCRA citizen action

ever being brought in an Ohio court. The district

court's holding on this matter is at least

plausible, but I cannot say that resolution of that

question is sufficiently plain under Yellow Freight

and Holmes to have put the Davises fairly on notice

that they could bring the RCRA allegation in Ohio

court. See Diversified Foods, 985 F.2d at 31

(recognizing that a good-faith belief in exclusive

federal jurisdiction might excuse a failure to bring

a federal claim as part of a previous state-court

action, but rejecting that excuse where the belief

in exclusive federal jurisdiction was "formed in the

face of two circuit decisions to the contrary.")

Indeed, if the district court held strong views on

this matter, it might have alerted the parties, or

perhaps have asked them to brief the issue. As it

was, for the year and a half prior to the state

court judgment, the Davises' federal and state

claims were pending simultaneously. The district

court requested and received periodic status

reports. It was reasonable for the Davises to

believe that, once the state court proceeding was

Blue Legs v. Bureau of Indian Affairs, 867 F.2d

1094, 1098 (8th Cir. 1988). thus, it was not

necessary, or even possible, to exhaust certain

tribal remedies, as normally required. True, Blue

Legs preceded by two years the stringent language of

Yellow Freight noted by this court in Holmes. None-

theless, since Yellow Freight, Blue Legs has

repeatedly been cited as good law--though, again,

generally without much jurisdictional analysis under

Yellow Freight. See, e.g., Fletcher v. United

States, 116 F.3d 1315,1327 (10th Cir.1997); Kerr-

McGee Corp. v. Farley, 115 F.3d 1498,1502 (10th Cir.

1997); Reservation Tel. Coop. v. Three Affiliated

Tribes of the Fort Berthold Reservation, 76 F.3d

181, 185-86 (8th Cir.1996). Other courts have

without citing Blue Legs, reached the same conclu-

sion. See White & Brewer Trucking, Inc. v. Donley,

952 F.Supp. 1306 (C.D.111.1997) (Burford abstention

inappropriate when federal action in which absten-

tion is sought contains RCRA claims, over which

federal courts have exclusive jurisdiction.)

over, they could proceed with their RCRA complaint

in federal court. The record shows (and Sun

confirmed at oral argument), that, other than the

vague statements in its amended answer, Sun never

voiced an objection to the Davises' splitting of the

claims.

Thus, I would hold that the Davises' RCRA suit was

not barred by the application of Ohio's rule against

claim-splitting, and may proceed. I therefore

respectfully dissent.

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Donald P. Davis and : Filed: U.S. Court

Maxine Elaine Davis, of Appeals

: June 24, 1998

Plaintiffs-Appellants,

: No. 96-4077

Sun Oil Company, JUDGMENT ENTRY

Defendant-Appelilee.

For the reasons stated in the opinion

entered on this 24th day of June, 1998, the

district court judgment is affirmed.

Leonard Green,

Clerk of Courts

By/s/

Deputy Clerk

DONALD DAVIS, et al., Plaintiffs,

vs.

SUN OIL COMPANY, Defendant.

Case No. C-3-93-408

UNITED STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF OHIO, WESTERN DIVISION

953 F. Supp. 890, 1996 U.S. Dist. LEXIS 21120

August 27, 1996, FILED

COUNSEL

For DONALD P. DAVIS, MAXINE ELAINE DAVIS,

plaintiffs; Joseph Philip Moore, Sunderland &

Moore-3, Vandalia, OH. Albert Mark Segreti,

Jr., Haffey & Segreti, Dayton, OH.

For SUN OIL COMPANY aka Sun Refining and

Marketing Company, defendant; Michael Robert

Blumenthal, David S. Hoffmann, McMahon, DeGutis

& Hoffmann, Cleveland, OH.

JUDGES

WALTER HERBERT RICE, UNITED STATES

DISTRICT COURT

AUTHOR: RICE

OPINION

DECISION AN ENTRY OVERRULING IN PART AND

SUSTAINING IN PART DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT (DOC. #26); JUDGMENT TO BE

ENTERED IN FAVOR OF DEFENDANT AND AGAINST

PLAINTIFFS; TERMINATION ENTRY.

In 1985, the Plaintiffs purchased a

parcel of real estate located in Montgomery

County, Ohio, on which the Defendant, a

previous owner of that property, had operated a

gas station. Defendant had removed the

gasoline storage tanks before it sold the

property; however, it did not remove the pipes

through which gasoline would flow from those

tanks to the pumps. Plaintiffs bring this

action under the citizen suit provision of the

Resource Conservation and Recovery Act

("RCRA"), 42 U.S.C. § 6972(a) (1). In their

Complaint, the Plaintiffs allege that

"Defendant, while the owner of the property,

handled hazardous substances on that property,

and contributed to and caused the disposal of

solid or hazardous waste on the property which

may present an imminent and substantial

endangerment to health or the environment,

i.e., gasoline components, including benzene,

toluene, ,ethylbenzene and xylenes." Doc.#1 at

P 5. The Plaintiffs request that the Court

"order the defendant to take such actions as

are necessary to remedy the situation caused on

the property, impose appropriate civil

penalties under 42 U.S.C.§ 6928(g), and award

plaintiffs their reasonable attorney and expert

witness fees." Id. at 2-3.

This case is now before the Court on the

Defendant''s Motion for Summary Judgment

(Doc.#26). As a means of analysis, the Court

will initially set forth the standards which

govern all motions for summary judgment,

following which it will turn to the instant

motion.

A motion for summary judgment "should be

granted where the evidence is such that it

‘would require a directed verdict [now a

judgment as a matter of law] for the moving

party.'” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 251, 91 L.Ed.2d 202, 106 S. Ct. 2505

(1986), quoting Sartor v. Arkansas Gas Corp.,

321 U.S. 620, 624, 88 L. Ed. 967, 64 S. Ct. 724

(1944). Summary judgment must be entered

"against a party who fails to make a showing

ay oe

sufficient to establish the existence of an

element essential to that party's case, and on

which that party will bear the burden of proof

at trial." Celotex Corp. v. Catrett, 477 U.S.

317, 322, 91 L. Ed.2d 265, 106 S.Ct. 2548

(1986). Of course, the moving party:

always bears the initial

responsibility of informing the district

court of the basis for its motion, and

identifying those portions of "the

pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any,”

which it believes demonstrate the absence

of a genuine issue of material fact.

477 U.S. at 323. See also Boretti v.

Wiscomb, 930 F.2d 1150, 1156 (6th Cir.

1991) (The moving party has the "burden of

showing that the pleadings, depositions,

answers to interrogatories, admissions and

affidavits in the record, construed favorably

to the nonmoving party, do not raise a genuine

issue of material fact for trial." quoting

Gutierrez v. Lynch, 826 F.2d 1534, 1536 [6th

Cir. 1987]). The burden then shifts to the

nonmoving party who "must set forth specific

facts showing that there is a genuine issue for

trial." Anderson, 477 U.S. at 250 (quoting

Fed. R.Civ.P. 56(e)).

Once the burden of production has so

shifted, the party opposing summary judgment

cannot rest on its pleadings or merely reassert

its previous allegations. It is not sufficient

to "simply show that there is some metaphysical

doubt as to the material facts." Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586, 89 L. Ed.2d 538, 106 S.Ct. 1348

(1986). See also, Michigan Protection and

Advocacy Service, Inc. v. Babin, 18 F.3d 337,

341 (6th Cir. 1994) ("The Plaintiff must present

more than a scintilla of evidence in support of

his position; the evidence must be such that a

jury could reasonably find for the plaintiff.")

Rather, Rule 56(e) "requires the

nonmoving party to go beyond the [unverified]

pleadings” and present some type of evidentiary

material in support of its position. Celotex

Corp., 477 U.S. at 324. Summary judgment

"shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with the

affidavits, if any, show there is no genuine

issue as to any material fact and that the

moving party is entitled to judgment as a

matter of law." Fed.R.Civ.P. 56(c). In

determining whether a genuine issue of material

fact exists, a court must assume as true the

evidence of the nonmoving party and draw all

reasonable inferences in the favor of that

party. Anderson, 477 U.S. at 255 (emphasis

added). Of course, if the parties present

conflicting evidence, a court may not decide

which evidence to believe, by determining which

parties' affiants are more credible; rather,

credibility determinations must be left to the

fact-finder. 10A Wright, Miller & Kane,

Federal Practice and Procedure, §2726. In

ruling on a motion for summary judgment (in

other words, in determining whether there is a

genuine issue of material fact), "[a] district

court is not . . . obligated to wade through

and search the entire record for some specific

facts that might support the nonmoving party's

claim." Interroyal Corp. v. Sponseller, 889

F.2d 108, 111 (6th Cir. 1989), cert. denied,

494 U.S. 1091 (1990). See also, L.S. Heath &

Son, Inc. v. AT&T Information Systems, Inc., 9

F.3d 561 (7th Cir. 1993); Skotak v. Tenneco

Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir.),

cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121

L.Ed.2d 59 (1992) ("Rule 56 does not impose upon

the district court a duty to sift through the

record in search of evidence to support a

party's opposition to summary judgment

- » -"). Thus, a court is entitled to rely, in

determining whether a genuine issue of material

fact exists on a particular issue, only upon

those portions of the verified pleadings,

depositions, answers to interrogatories and

admissions on file, together with any

affidavits submitted, specifically called to

its attention by the parties.

The Defendant initially argues that the

Plaintiffs are not entitied to two types of

relief which it claims they are seeking, to-

wit: 1) restitution for sums which they

expended attempting to clean up the property,

hiring expert witnesses and conducting an

environmental investigation, and 2) civil

penalties, given that the only relief the

Plaintiffs can obtain under RCRA is an order

requiring it to take certain action. See

Doc.#26 at 4-5. The Court will address these

two forms of relief in the above order.

In their Complaint (Doc.#1), the

Plaintiffs did not request that the Court order

restitution for any past costs they have

incurred. However, in their Motion for Summary

Judgment,* the Plaintiffs did request that the

Court enter summary judgment in their favor and

enter appropriate equitable relief, including

ordering the Defendant "to provide restitution

to the Plaintiffs for monies spent by

Plaintiffs in attempting to clean up the

property, hiring expert witnesses, and

incurring costs of environmental

investigation." Doc.#21 at 11. The Court need

not rule upon the merits of this aspect of the

Defendant's Motion for Summary Judgment

(Doc.#26). Under Rule 8(a) (3) of the Federal

Rules of Civil Procedure, the type of relief

sought must be contained in the pleading, in

this case, the Complaint. No provision of

those Rules or any case law extant authorizes a

person to request a form of relief in a motion

for summary judgment, different from that

requested in his pleading. Moreover, the

Plaintiffs have not sought leave to amend their

Complaint to request the remedy of

restitution.* In sum, since the Plaintiffs'

Complaint did not pray for restitution as a

form of relief, they are not entitled to an

order granting same. Nor is the Defendant

entitled to a ruling addressing the merits of

said non-existent claim. Therefore, since a

live controversy regarding Plaintiffs'

entitlement to an order of restitution does not

exist, this Court overrules, without addressing

the merits of the parties" arguments, the

Defendant's Motion for Summary Judgment

(Doc.#26), to the extent that, with said

motion, Defendant seeks summary judgment on the

Plaintiffs' "request" for such an order.

The Defendant also argues that it is ©

entitled to summary judgment on the Plaintiffs'

request that the Court impose a civil penalty

upon Defendant.* The Defendant argues that

this Court cannot impose civil penalties in an

action brought by a private party. Defendant's

argument is predicated upon 42 U.S.C.§ 6928(g),

which authorizes the imposition of civil

penalties. Section 6928(g) provides:

(g) Civil penalty

Any person who violates any

requirement of this subchapter [§§ 6921-

6939e] shall be liable to the United

States for a civil penalty in an amount

ene Pee

not to exceed $25,000 for each such

violation. Each day of such violation

shall, for purposes of this subsection,

constitute a separate violation.

The Defendant argues that a private party

cannot enforce the civil penalty provision,

Since § 6928(g) renders a violator liable to

the United States. This Court does not agree.

The citizen suit provision of RCRA explicitly

grants District Courts the jurisdiction "to

apply any appropriate civil penalties under

section 6928(a) and (g) of this title." 42

U.S.C. § 6972(a). Courts which have considered

the question have concluded that said citizen

suit provision, § 6972(a), permits the

imposition of a civil penalty in an action

brought by a private party. See Clorox Co. v.

Chromium Corp., 158 F.R.D. 120, 128 (N.D. Ill.

1994). See also, Department of Energy v. Ohio,

903 U.S. 607, 118 L.Ed.2d 255, 112 S.Ct. 1627

(1992) (assuming that § 6972(a) invests a

District Court with jurisdiction to impose

civil penalties in an action brought by a

private party). Moreover, RCRA's citizen suit

provision is strikingly similar to the citizen

suit provision in the Clean Water Act ("CWA").

Compare 42 U.S.C.§ 6972(a) (RCRA) with 33

U.S.C. § 6972(a) (RCRA) with 33 U.S.C. §

1365(a) (CWA). See also, Garcia v. Cecos

International, Inc., 761 F.2d 76, 81 (list Cir.

1985) (noting similarity of citizen suit

provisions in those two statutes). In

Middlesex County Sewerage Auth. v. Sea Clammers

Association, 453 U.S. 1, 14 n. 25, 69 L.Ed2d

435, 101 S.Ct. 2615 (1981), the Supreme Court

said that a District Court could impose civil

penalties in a citizen suit under the CWA. See

also, Gwaltney v. Chesapeake Bay Foundation,

484 U.S. 49, 98 L.Ed.2d 306, 108 S.ct. 376

(1987). Accordingly, this Court concludes that

Civil penalties can be imposed upon the

Defendant in this lawsuit and overrules the

Defendant's Motion for Summary Judgment

(Doc.#26), to the extent that with same

Defendant seeks summary judgment on Plaintiffs'

request that the Court impose civil penalties

on the Defendant.

; Alternatively, the Defendant argues that

res judicata prevents the Plaintiffs from

maintaining this action. In support of that

argument, the Defendant relies upon the

parallel litigation between the same parties

which had been proceeding in the courts of |

Ohio, under a theory of nuisance, fraud and

breach of contract. In that litigation, the

Montgomery County Court of Common Pleas entered

final judgment in favor of the Plaintiffs (who

are also the Plaintiffs in this litigation), on

the Plaintiffs" fraud and breach of contract

claims, awarding monetary damages, attorney's

fees and a decree of specific performance

ordering Defendant to clean up the property

within one year of the judgment. The Defendant

(who, likewise, is the Defendant in this

litigation) appealed that judgment to the

Montgomery County Court of Appeals. On January

31, 1996, that court rendered its decision,

affirming, with a slight modification,‘ the

judgment of the trial court. Davis v. Sun Oil

Company, 1996 WL 38927 (Ohio App. 1996). Asa

result of the Appellate Court's decision, the

Plaintiffs obtained, in state court, all of the

relief this Court could conceivably grant to

them in this litigation.°

Of course, even if the Plaintiffs had not

obtained all such relief in state court that

they could achieve herein, the doctrine of res

judicata, if applicable, would bar this

litigation. In Stuhlreyer v. Armco, Inc., 12

F.3d 75, 77 (6th Cir. 1993), the Sixth Circuit

reviewed the principles which a District Court

must apply when deciding whether to give res

judicata effect to a prior state court

judgment:

State judicial proceedings are

entitled to the same preclusive effect in

federal court as they would receive in

the judgment-rendering state. 28 U.S.C.

§ 1738; Marrese v. American Academy of

Orthopaedic Surgeons, 470 U.S. 373, 384,

84 L.Ed.2d 274, 105 S.Ct. 1327 (1985).

We therefore look to Ohio preclusion law.

Gargallo v. Merrill Lynch, Pierce, Fenner

& Smith, Inc., 918 F.2d 658, 663 (6th

Cir. 1990). In Ohio, “the doctrine of

res judicata is that an existing final

judgment rendered upon the merits,

without fraud or collusion, by a court of

competent jurisdiction, is conclusive of

rights, questions and facts in issue, as

to the parties and their privies, in all

other actions in the same or any other

judicial tribunal of concurrent

jurisdiction.” Gargallo, 918 F.2d at 661

(quoting Norwood v. McDonald, 142 Ohio

St. 299, 305, 52 N.E.2d 67, 71

(1943) (other citations omitted)).

National Amusements, Inc. v. Springdale,

53 Ohio St.3d 60, 62, 558 N.E.2d 1178

(1990), cert. denied, 498 U.S. 1120, 112

L.Ed.2d 1180, 111 S.Ct. 1075 (1991).

Thus, under Ohio law, claim preclusion

requires that the rendering court possess

subject matter jurisdiction over the

original claim. Gargallo, 918 F.2d at

663.

It is not questioned that the parties in

this action are the same as those in the state

court litigation. In addition, a final

judgment has been entered by the Montgomery

County Court of Common Pleas, which was

affirmed, with one minor modification, by the

Montgomery County Court of Appeals.

Accordingly, in this case, this Court need only

focus on whether the Plaintiffs' claim under

RCRA was or could have been litigated in the

Ohio court proceedings. The Plaintiffs’ claim

under RCRA was not litigated in the state court

proceedings; indeed, such a claim was not

asserted therein. In addition, the Plaintiffs

argue that their RCRA claim could not have been

litigated in an Ohio court, because § 6972(a)

invests federal courts with exclusive

jurisdiction to hear citizens suits under that

statute. Certainly, if federal courts have

exclusive jurisdiction over citizens" suits

under § 6972(a), and, therefore, state courts

cannot exercise jurisdiction over such claims,

then the Plaintiffs could not have brought

their claim under RCRA in the Montgomery County

Court of Common Pleas. However, if state

courts have concurrent jurisdiction over such

claims, then nothing would have prevented the

Plaintiffs from asserting that claim in state

court. Accordingly, this Court turns to the

question of whether federal courts have

exclusive or concurrent jurisdiction to

entertain citizen suits under § 6972(a).

In Holmes Fin Associates v. Resolution

Trust Corp., 33 F.3d 561 (6th Cir. 1994), the

Sixth Circuit reviewed the principles which

must be applied to determine whether federal

<shdereiae’ Sila eMC ia tiara guthher weet

courts have exclusive jurisdiction over a

particular federal, statutory claim or whether

that claim can be pursued in state court as

well:

The Supreme Court has held that "under

our system, the States possess

sovereignty concurrent with that of the

Federal Government, subject only to

limitations imposed by the Supremacy

Clause." Tafflin v. Levitt, 492 U.S.

455, 458, 107 L.Ed2d 887, 110 S.Ct. 792

(1990). Accordingly, "state courts have

inherent authority, and are presumptively

competent, to adjudicate claims arising

under the law of the United States." Id.

It is axiomatic, however, that Congress

has the power to preclude state court

jurisdiction over federal claims if it so

chooses. Gulf Offshore Co. v. Mobile Oil

Corp., 453 U.S. 473, 477-78, 69 L.Ed2d

784, 101 S.Ct. 2870 (1981).

The Holmes court concluded that "to

overcome the ‘presumptive competence’ of state

courts to hear and determine cases arising

under federal law, the [Supreme] Court held

that Congress must ‘affirmatively divest’ the

state courts of that jurisdiction and must do

so in the text of the statute.” 33 F.3d at 565

(footnote omitted) (citing omitted) (citing

Yellow Freight System, Inc. v. Donnelly, 494

U.S. 820, 108 L.Ed.2d 834, 110 S.Ct. 1566

(1990)).°®

The statute in question, § 6972(a),

provides that "any action under paragraph

(a) (1) of this subsection shall be brought in a

district court for the district in which the

alleged violation occurred or the alleged

endangerment may occur." (emphasis added). In

Middlesex County Bd. of Chosen Freeholders v.

New Jersey, 645 F. Supp. 715, 719 (D.N.J.

1986), the only case to address the question,

the court noted that the word "shall" is used

in § 6972(a), a word which is construed to be

mandatory rather than discretionary, and

concluded that, as a consequence, federal

courts have exclusive jurisdiction over citizen

suits under § 6972(a). This Court does not

agree with the analysis of the District Court

in Middlesex County. In Holmes, the Sixth

Circuit noted that "Congress is well versed in

the intricacies of concurrent and exclusive

federal court jurisdiction and the need for an

explicit withdrawal of concurrent

jurisdiction." 33 F.3d at 565. Indeed, when

Congress wants to divest state courts of such

jurisdiction, it has shown that it is quite

capable of using explicit language necessary to

accomplish that task. See e.g., 29 U.S.C. §

1132(e) (1) (explicitly granting "exclusive

jurisdiction" to District Courts for most

actions arising under ERISA, while explicitly

preserving concurrent, state court jurisdiction

over ERISA actions under § 1132(a) (1) (B));7.42

U.S.C. § 9613(e) (providing that District Courts

"shall have exclusive original jurisdiction”

over actions under CERCLA). In § 6972(a),

Congress did not say that federal courts shall

have "exclusive jurisdiction” over claims

brought under it, nor did Congress use a phrase

Similar to "exclusive". However, § 6972(a)

does contain the word "shall,”™ which is

interpreted as mandatory. Assuming for sake of

argument that the use of the word "shall,"

which is sufficient to overcome the presumption

of concurrent jurisdiction, the portion of that

statute which uses "shall" can be just as

readily be interpreted as a specific venue

provision as it can be interpreted as resolving

the question of which District Court a claim

oo 5,

under the § 6972(a) must be asserted, as

opposed to divesting state courts of their

presumed concurrent jurisdiction. A

construction of § 6972(a) as a specific venue

provision, superseding for RCRA purposes the

general venue statute, is buttressed by the

fact that under the general venue statute, 28

U.S.C. § 1391, an action under RCRA could be

brought against a corporation in any district

in which such a defendant is subject to

personal jurisdiction, rather than only in the

district in which the alleged violation

occurred or the alleged endangerment may occur.

In sum, the Sixth Circuit has said that

"concurrent jurisdiction always exists under

the Supremacy Clause until affirmatively and

expressly revoked by federal law. Holmes, 33

F.3d at 565 n. 4. When it enacted § 6972(a),

Congress did not state that federal courts

shall have exclusive jurisdiction over citizens

suits under that statute and, therefore, did

not affirmatively and expressly revoke

concurrent jurisdiction. Moreover, the

ambiguous context in which the word "shall" is

used in that statute does not constitute an

explicit withdrawal of the concurrent

jurisdiction which state courts presumptively

exercise. Therefore, this Court concludes that

the Plaintiffs could have brought their RCRA

claim in state court. Accordingly, the

Plaintiffs' claim under that statute (the only

claim they have asserted in this litigation) is

barred by the doctrine of res judicata.’

Based upon the foregoing, the Court

sustains the Defendant's Motion for Summary

Judgment (Doc.#26), to the extent that said

motion is predicated upon the argument that

Plaintiffs' claim under RCRA is barred by res

judicata. Accordingly, the Court directs that

judgment be entered in favor of the Defendant :

and against the Plaintiffs.®

The captioned cause is hereby ordered

terminated upon the docket records of the

United States District Court for the Southern

District of Ohio, Western Division, at Dayton.

WALTER HERBERT RICE.

UNITED STATES DISTRICT JUDGE.

DISPOSITION

Defendant's Motion for Summary Judgment

(Doc. #26) overruled in part and sustained in

part.

Judgment entered in favor of Defendant and

against Plaintiffs.

OPINION FOOTNOTES

1 In a Decision filed on March 20,

1996, the Court overruled the Plaintiffs'

Motion for Summary Judgment. See Doc. #39.

2 If such a motion were filed, the

Plaintiffs would have a difficult time

convincing the court that leave to amend should

be granted. In Meghrig v. KFC Western, Inc.,

134 L.Ed.2d 121, 116 S.Ct. 1251 (1996), a

unanimous Supreme Court concluded that RCRA

does not authorize an award of restitution for

past cleanup costs. In its Motion for Summary

Judgment (Doc. #26), the Defendant relied upon

Furrer v. Brown, 62 F.3d 1092 (8th Cir. 1995),

a case in which the Eighth Circuit concluded,

as did the Supreme Court in Meghrig, that

damages in the form of restitution cannot be

unr, arot:

rare naMeRete ch altdael abs 00 NA Reel Ahaitity

saretoalnn

;

recovered under RCRA. The Defendant filed its

motion before the Supreme Court decided

Meghrig.

3 Unlike restitution, the Plaintiffs’

Complaint (Doc. #1) does contain a request for

civil penalties.

4 The trial court had granted the

Plaintiffs' request for specific performance of

a contract between Defendant and them and had

ordered the Defendant to clean up the property

in question within one year. The Montgomery

County Court of Appeals eliminated the one-year

obligation and substituted the requirement that

the Defendant proceed in an expeditious manner.

5 In this litigation, the Plaintiffs

request that the Court order the Defendant to

take actions which are necessary to remedy the

situation on the property and that civil

penalties be imposed upon the Defendant. As is

noted above, the state court has ordered the

Defendant to clean up the property. In this

litigation, this Court could only order the

Defendant to take such action as is necessary

to prevent an imminent and substantial

endangerment to health and the environment.

See 42 U.S.C. § 6972(a). The state court's

order, on the other hand, requires the

Defendant to take remedial action regardless of

whether the hazardous substances on the

property pose such an endangerment. While that

order may require the Defendant to act in the

absence of such an endangerment, it is not

conceivable that the Defendant could clean up

the property and, thus, comply with the state

court's order while the hazardous substances

remained on it and constituted such an

endangerment. Therefore, the state court's

order that the property be remediated is at

least as favorable to the Plaintiffs as any

order they could obtain in this litigation. In

addition, any civil penalties which this Court

would impose upon the Defendant would be paid

to the United States rather than to the

Plaintiffs.

6 In a footnote to the above quoted

passage, the Holmes court stressed the strength

of the presumption that state courts could

decide claims predicated upon federal law.

The [Supreme] Court has twice made clear

that this “presumption” is not just an

evidentiary starting point in determining

Congress’ intent. Rather, it refers to the

fact that concurrent jurisdiction always exists

under the Supremacy Clause until affirmatively

and expressly revoked by federal law. See

Howlett v. Rose, 496 U.S. 356, 3270 n. 17, 110

L.Ed.2d 332, 110 S.Ct. 2430 (1990) (citing

Minneapolis & St. Louis R. Co. v. Bombolis, 241

U.S. 211, 222, 60 L.Ed 961, 36 S.Ct. 595

(1918)).

33 F.3d at 565 n. 4.

7 Since the Court has concluded that

the Plaintiffs' claim is barred by res

judicata, it is not necessary to address the

Defendant's argument that said claim is also

barred by the doctrine of primary jurisdiction.

The Court does note such such an argument has

not received a favorable reception with other

courts. See e.g., Coalition for Health Concern

v. LWD, Inc., 834 F. Supp. 953 (W.D.Ky. 1993).

8 In its Motion for Summary Judgment

(Doc. #26), the Defendant requests that this

Court award it the costs of this litigation,

including reasonable attorney's fees. Section

6972(e) authorizes the award of costs,

a om

ei eat Ele ath al iat pantie SAR Re K tare cae oman yt deaidated Warhaivewctn $4

An Athlete! TS Ras pce eb Co KA

including reasonable attorney's fees, to the

prevailing party in a citizen's suit under

RCRA, "whenever the court determines such an

award is appropriate." See also Rule 54(d) (1)

of the Federal Rules of Civil Procedure (costs

other than attorney's fees). If the Defendant

deems an award of attorney's fees to be

appropriate in this case, it may file an

application for same, accompanied by a detailed

listing of hours and costs expended, within 30

days of the entry of this Decision. An

application for an award of attorney's fees is

traditionally treated as a post-judgment

matter. See While v. New Hampshire Dept. of

Employment Sec., 455 U.S. 445, 102 S.Ct. 1162,

71 L.Ed.2d 325 (1982). See also Rule

54(d)92) (B) (application for award of attorney's

fees must be filed within 14 days of entry of

judgment, unless court orders otherwise).

UNITED STATES DISRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION, DAYTON

Donald P. Davis and : Filed: U.S.

Maxine Elaine Davis, District Court

Plaintiffs, August 27, 1996

Vv. , Case No. 93-00408

Sun Oil Company, JUDGMENT ENTRY

Defendant.

It is ORDERED and ADJUDGED that summary

judgment is granted in favor of defendant and

against plaintiffs.

KENNETH MURPHY

CLERK OF COURTS

By/s/

Deputy Clerk

Rhian alin pe a edit ab Rah ahat

tI A nar ns Ae

42 U.S.C. SECTION 6972 CITIZEN SUITS

(a) Im general. Except as provided in

subsection (b) or (c) of this section, any

person may commence a civil action on his own

behalf --

(1) (A) against any person (including (a)

the United States, and (b) any other

governmental instrumentality or agency, to the

extent permitted by the eleventh amendment to

the Constitution) who is alleged to be in

violation of any permit, standard, regulation,

condition, requirement, prohibition, or order

which has become effective pursuant to this

Act; or

(B) against any person, including the United

States and any other governmental

instrumentality or agency, to the extent

permitted by the eleventh amendment to the

constitution, and transporter, or past or

present owner or operator of a treatment,

storage, or disposal facility, who has

contributed or is contributing to the past or

present handling, storage, treatment,

transportation, or disposal of any solid or

hazardous waste which may present an imminent

and substantial endangerment to health or the

environment; or

(2) against the Administrator where there is

alleged a failure of the Administrator to

perform any act or duty under this Act which is

not discretionary with the Administrator. Any

action under paragraph 9a) (1) of this

subsection shall be brought in the district

court for the district in which the alleged

violation occurred or the alleged endangerment

may occur. Any action brought under paragraph

(a) (2) of this subsection may be brought in the

district court for the district in which the

alleged violation occurred or in the District

Court of the District of Columbia. The

district court shall have jurisdiction, without

regard to the amount in controversy or

citizenship of the parties, to enforce the

permit, standard, regulation, condition,

requirement, prohibition, or order, referred to

in paragraph (1) (A), to restrain any person who

has contributed or who is contributing to the

past or present handling, storage, treatment,

transportation, or disposal of any solid or

hazardous waste referred to in paragraph

(a) (B), to order such person to take such other

action as may be necessary, or both, or to

order the Administrator to perform the act or

duty referred to in paragraph (2), as the case

may be, and to apply any appropriate civil

penalties under section 3008(a) and (g) [42 USC

§ 6928(a) and (g)].

(b) Actions prohibited. (1) No action may

be commenced under subsection (a) (1) (A) of this

section --

(A) prior to 60 days after the plaintiff

has given notice of the violation to --

(i) the Administrator;

(ii) the state in which the alleged

violation occurs; and

(iii) to any alleged violator of

such permit, standard,

regulation, condition,

requirement, prohibition, or

order,

except that such action may be brought

immediately after such notification in the case

of an action under this section respecting a

violation of subtitle C of this Act [42 USC §

6921 et seq.]?7 or

(B) if the Administrator or State has

commenced and is diligently prosecuting a civil

or criminal action in a court of the United

States or a State to require compliance with

such permit, standard, regulation, condition,

requirement, prohibition, or order. In any

action under subsection (a) (1) (A) in a court of

the United States, any person may intervene as

a matter of right.

(2) (A) No 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 to --

(i) the Administrator;

(ii) the State in which the alleged

endangerment may occur;

(iii) any person alleged to have

contributed or to be contributing

to the past or present handling,

storage, treatment, transporta-

tion, or disposal of any solid or

hazardous waste referred to in

subsection (a) (1) (B),

except that such action may be brought

immediately after such notification in the case

of an action under this section respecting a

violation of subtitle C of this Act.

(B) No action may be commenced under

subsection (a) (1) (B) of this section if the

Administrator, in order to restrain or abate

acts or conditions which may have contributed

or are contributing to the activities which may

present the alleged endangerment --

(i) has commenced and is diligently

prosecuting an action under section

7003 of this Act [42 USC § 6973] or

under section 106 of the Compre-

hensive Environmental Response,

Compensation and Liability Act of

1080 [42 USC § 9606];

(ii) is actually engaging in a removal

action under section 104 of the

Comprehensive Environmental

Response, Compensation and Liability

Act of 1980 [42 USC § 9604);

(iii) has incurred costs to initiate a

Remedial Investigation and

Feasibility Study under section 104

of the Comprehensive Environmental

Response, Compensation and Liability

Act of 1980 [42 USC § 9604] and is diligently

proceeding with a remedial action under that

Act; or

(iv) has obtained a court order

(including consent decree) or issued an

administrative order under section 106 of the

Comprehensive Environmental Response,

Compensation and Liability Act of 980 [1980],

or section 7003 of this Act [42 USC § 6973]

pursuant to which a responsible party is

diligently conducting a removal action,

Remedial Investigation and Feasibility Study

(RIFS), or proceeding with a remedial action.

In the case of an administrative order

referred to in clause (iv), actions under

subsection (a) (1) (B) are prohibited only as to

the scope and duration of the administrative

order referred to in clause (iv).

(C} No action may be commenced under

subsection (a) (1)(B) of this section if the

state, in order to restrain or abate acts or

conditions which may have contributed or are

contributing to the activities which may

present the alleged endangerment --

(i) has commenced and is diligently

prosecuting an action under

subsection (a) (1) (B);

(ii) is actually engaged in a removal

action under section 104 of the

Comprehensive Environmental

Response, Compensation and

Liability Act of 1980; or

(iii) has incurred costs to initiate a

Remedial Investigation and

Feasibility Study and under

section 104 of the Comprehensive

Environmental Response,

Compensation and Liability Act of

1980 and is diligently proceeding

with a remedial action under that

Act.

(D) No action may be commenced under

subsection (a) (1) (B) by any person (other than

a state or local government) with respect to

the citing of a hazardous waste treatment,

storage, or a disposal facility, nor to

restrain or enjoin the issuance of a permit for

such facility.

(E) In any action under subsection

(a) (1) (B) in a court of the United States, any

person may intervene as a matter of right when

the applicant claims an interest relating to

the subject of the action and he is so situated

that the disposition of the action may, as a

practical matter, impair or impede his ability

to protect that interest, unless the

Administrator or the state shows that the

applicant's interest is adequately represented

by existing parties.

(F) Whenever any action is brought under

subsection (a) (1) (B) in a court of the United

States, the plaintiff shall serve a copy of the

complaint on the Attorney General of the United

States and with the Administrator.

under paragraph (a) (2) of this section prior to

sixty days after the plaintiff has given notice

to the Administrator that he will commence such

_action, except that such action may be brought

immediately after such notification in the case

of an action under this section respecting a

violation of subtitle C of this Act. Notice

under this subsection shall be given in such

manner as the Administrator shall prescribe by

regulation. Any action respecting a violation

under this Act may be brought under this

section only in the judicial district in which

such alleged violation occurs.

(d) Intervention. In any action under this

section the Administrator, if not a party, may

intervene as a matter of right.

(e) Costs. The court, in issuing any final

order in any action brought pursuant to this

section or section 7006, may award costs of

litigation (including reasonable attorney and

expert witness fees) to the prevailing or

substantially prevailing party, whenever the

court determines such an award is appropriate.

The court may, if a temporary restraining order

or preliminary injunction is sought, require

the filing of a bond or equivalent security in

accordance with the Federal Rules of Civil

Procedure.

(f) Other rights preserved. Nothing in this

section shall restrict any right which any

person (or class of persons) may have under any

statute or common law to seek enforcement of

any standard or requirement relating to the

management of solid waste or hazardous waste,

or to seek any other relief (including relief

against the Administrator or state agency).

(g) Transporters. A transporter shall not

be deemed to have contributed or to be

contributing to the handling, storage,

treatment, or disposal, referred to in

subsection (a) (1) (B) taking place after such

solid waste or hazardous waste has left the

possession or control of such transporter, if

the transportation of such waste was under a

sole contractual arrangement arising from a

published tariff and acceptance for carriage by

common carrier by rail and such transporter has

exercised due care in the past or present

handling, storage, treatment, transportation

and disposal of such waste.

(Oct. 20, 1965, P.L89-272, Title II, Subtitle

G, 7002, as added; Oct. 21, 1976, P.L94-580,

section 2, 90 Stat. 2825; Nov. 8, 1978, P.L95-

609, section 7(p), 92 Stat. 3083; Nov. 8, 1984,

P.L98-616, Title IV, section 401, 98 Stat.

3268.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.