Petition for Writ of Certiorari — Burnette v. Carothers

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00. 610 oct 16 2000

i ag

: In The

Supreme Court Of The United States

October Term, 2000

a 2

MARIE BURNETTE and RALPH BURNETTE,

Petitioners,

V.

LESLIE CAROTHERS, ENVIRONMENTAL PROTECTION

DEPARTMENT OF CONNECTICUT, ARTHUR J. ROCQUE,

JR., Commissioner Environmental Protection,

LOWELL P. WEICKER, JR., Governor, BRUCE L. MORRIS,

CT Dept. of Public Works, LARRY MEACHUM, Commissioner

Official Capacity, CT Dept. of Correction, STATE OF

CONNECTICUT, JOHN G. ROWLAND, Governor,

THEODORE R. ANSON, Commissioner, JOHN J.

ARMSTRONG, Commissioner,

Respondents.

*

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

4

PETITION FOR A WRIT OF CERTIORARI

WITH APPENDIX

+

MARIE G. BURNETTE, RALPH G. BURNETTE, JR.,

pro se pro se

Counsel of Record

82 Rye Hill Circle 82 Rye Hill Circle

Somers, CT 06071 Somers, CT 06071

(860) 749-7462 (860) 749-7462

For the Petitioners

a

service by

CALL 800 842 0008

QUESTION PRESENTED

Does a Citizen Suit under the Federal Water

Pollution Control Act, Resource Conservation Recovery

Act and the Comprehensive Environmental Response

Compensation Liability Act puncture a State’s sovereign

immunity when a citizen-plaintiff seeks declaratory and

injunctive relief and the real party in interest is the

United States of America?

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption,

BRIAN BURNETTE, A Minor by his parents and next

friends, Ralph & Marie Burnette, RALPH G. BUR-

NETTE, III, DAVID J. ATTARDO, JOAN F. ATTARDO,

JOHN J. BATISTE, MIMA A. BATISTE, MARK

BATISTE, By his parents and next friends John J

Batiste and Mima A. Batiste, TYRON BATISTE, A Mi-

nor by his parents and next friends John J. Batiste and

Mima A. Batiste, CAROL A BEERWORT, LAWRENCE

BEERWORT, DONALD M. CARAVELLA, DONNA L.

CARAVELLA, LILLIAN E. CARDALICO, GARY A.

CARRA, MARGARET CARRA, RAYMOND I. COLTON,

BARBARA DONNELLY, JOANNE DONNELLY,

PHILIP B. DONNELLY MARIE COLTON, JAMES R.

FAUST, MARILYN FAUST, ERICA L. HARE, By her

parents & next friends Wayne R. Hare & Marilyn C.

Hare, JENNIFER L. HARE, A Minor by her parents and

next friend Wayne R. and Marilyn C. Hare, MICHAEL

R. HARE, A Minor by his parents and next friend Wayne

and Marilyn Hare, MARILYN C. HARE, WAYNE R.

HARE, LYNN ISSA, ROBERT G. ISSA, KIMBERLY R.

KEESEE, ORVILLE W. KEESEE, CATHERINE F.

‘ KELLY, JAMES J. KELLYNICHOLAS J. KELLY, A

Minor by his parents & next friends Catherine & James

J. Kelly, NOREEN E. KELLY, JOSEPHINE C. KLUES-

NER, RICHARD J. KLUESNER, JASON KULAS, A

Minor by his parents & next friends Kerry Kulas &

William J. Kulas, KEVIN KULAS, A minor by his par-

ents & next friend Kerry Kulas & William J. Kulas,

KERRY KULAS, WILLIAM J. KULAS, KENNETH E.

LORDI, JOSEPH MARINACCIO, A minor, by his par-

ents and next friends Michael D. Marinaccio and Susan

Marinaccio, MICHAEL J. MARINACCIO, A Minor, by

il

his parents and next friends Michael D. Marinaccio &

Susan Marinaccio, MICHAEL D. MARINACCIO, SU-

SAN MARINACCIO, ANTONIO MAURO, DORIS L.

MAURO, JAMES MAURO, A minor, by his parents and

next friends Antonio G. Mauro & Doris L. Mauro, JEF-

FREY MAURO, ROBERT MAURO, A Minor, by his

parents & next friends Antonio G & Doris L. Mauro,

ASHLEY MAZZOLI, THOMAS G. MAZZOLI, BONNIE

MAZZOLI, DEBORAH A. MCDONALD, RICHRD MC-

DONALD, ANTHONY NOLASCO, MARYOLAINE NO-

LASCO, DANIEL NOLASCO, A Minor, by his parents

and next friends Anthony & Maylaine Nolasco, JOHN

NOLASC%, A Minor, by his parents & next friends

Anthon,; & Maryolaine Nolasco, NINO NOLASCO, A

Minor, by his parents & next friends Anthony & Mary-

olaine Nolasco, RAYMOND J. POW, SUE HE POW,

JONATHON PIERS POW, MATTHEW MARK POW, By

his parents & next friends Raymond J. & Sun He Pow,

SEAN RAYMOND POW, A Minor, by his parents & next

friend Raymond J. Pow & Sun He Pow, THOMAS RICCI,

PATRICIA RICCI, CHRISTINE RICCI, A Minor, by her

parents and next friends-Thomas Ricci & Patricia Ricci,

REGINA RICCI, A Minor, by her parents & next friends

Thomas Ricci and Patricia Ricci, ANNETTE ROSCA,

ROCCO ROSCA, CAROLYN ROCCO ROSCA,

MICHAEL ROSCA, A Minor, by his parents and next

friends Annette & Rocco Rosca, ERIN SMITH, DENISE

M. TOOHEY, JOHHN W. TOOHEY, JOHN TSHUMMI,

ROSITA TSHUMMI, WAYNE N. WOODWORTH,

RICKY WYLOT, JAMIE WYLOT, A Minor, by his par-

ents & next friends Ricky Wylot & Nancy Wylot, JAMIE

WYLOT, NICHOLAS WYLOT, A Minor, by his parents

& next friends Ricky Wylot & Nancy Wylot, NEDRA

ZISA, DAVIDT.ZISA, A Minor, by his parents & next

friend Nedra W. Zisa, TIMOTHY R.E. KEENEY, in his

Official Capacity, SIDNEY J. HOLBROOK, STECKER

ill

LABAU ARNELL MCMANUS ARTHITECTS, INC.

iv

TABLE OF CONTENTS

Page

Question Presented .............. sesktuahessdpecanenes i

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Statement of Jurisdiction, ................cccccececces 1

Constitutional and Statutory Provisions Involved .... 1

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Reasons for Granting the Writ....................206- 5

I. The Petition For Writ Of Certiorari Should Be

Granted Because The Opinion Below Conflicts.

With Another U.S. Court of Appeals Ruling

Regarding The Status Of Plaintiffs As Private

Attorney General Pursuant To The Citizen

Suit Provision Of The Clean Water Act ........... 5

II. The Petition for Writ Of Certiorari Should Be

Granted Because The Opinion Below Con-

flicts With The Court’s Prior Ruling On Pri-

vate Enforcement Of An Important Policy Of

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TABLE OF CITATIONS

Cases Cited: Page

Armstrong v. Asarco, Inc., 138 F.3d 382 ,............ 5,6

Newman v. Piggie Park Enterprises, 390 U.S.

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Statues Cited:

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United States Constitution Cited:

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APPENDIX

Appendix A - Opinion Of The United States

Court Of Appeals For The Second Circuit

Filed September 13, 1000.........cccccccssssccee la

Appendix B - Ruling Of The United States

Court Of Appeals For The Second Circuit

For A Petition For Rehearing Filed July

18, ZOOO .. 0. cc eccencceccncccccccccccccccccvncees l4a

Appendix C - Ruling Of The United States

District Court For The District Of Con-

hs EE Gk: DIS ne instackdakenkekmaceubaan 16a

Appendix D - 42 USC § 6972.......................- 23a

Petitioners, Marie G. Burnette and Ralph G.

Burnette, Jr., respectfully request that a writ of certio-

rari be issued to review the judgment of the United

States Court of Appeals for the Second Circuit in this

case.

OPINIONS BELOW

The judgment of the United States Court of Ap-

peals for the Second Circuit was decided on September

13, 1999 (Appendix A) and is not published. The ruling

of the district court can be found in Appendix C

STATEMENT OF JURISDICTION

The judgment of the United States Court of Ap-

peals for the Second Circuit (“Court of Appeals”) was

decided on September 13, 1999. The Court of Appeals

denied a timely petition for rehearing on July 18, 2000

(Appendix B).

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY PROVI-

SONS INVOLVED

The Eleventh Amendment to the United States

Constitution provides: “The Judicial power of the United

States shall not be construed to extend to any suit in law

or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens

or Subjects of any Foreign State.”

1

Citizen suit provisions of the Federal Water Pol-

lution Control Act (“Clean Water Act”), 33 U.S.C. § 1365;

Resource Conservation Recovery Act (“RCRA”), 42 U.S.C.

§ 6972; and the Comprehensive Environmental Response

Compensation Liability Act (“CERCLA”), 42 U.S.C. §

9659. All three provisions contain essentially the same

language. A copy of 42 U.S.C. § 6972 is provided in

Appendix D.

STATEMENT OF THE CASE

The fundamental question in this case is whether

a citizen plaintiff, acting as a private attorney general,

has jurisdictional standing in federal court, under the

citizen suit provisions of the Clean Water Act, RCRA and

CERCLA when the defendant is a state that claims

sovereign immunity pursuant to the Eleventh Amend-

ment to the Constitution of the United States.

For an unknown period prior to 1989, the Con-

necticut Department of Correction, at its Osborne Cor-

rectional Facility in Somers, Connecticut was dumping

potentially lethal hazardous wastes into drains and

other receptors which migrated into the aquifer below.

Families in homes south of the prison unknowingly

drank water from the aquifer provided by their water

wells. During this time, residents suffered numerous

physical infirmities including severe and prolonged

headaches, thyroid dysfunction, rapid heartbeat and

numbness of the extremities.

In 1989, after several letters written by prisoner

Gary W. Bornman to a local newspaper and to the

Commissioner of the Connecticut Department of Envi-

ronmental Protection, a partial investigation of waste

handling was conducted finding that there was a dis-

2

charge of methylene chloride into the Sanitary sewer

system of the neighboring town of Enfield. However,

state officials ignored the Mr. Bornman’s request for a

groundwater investigation even though Mr. Bornman

had informed them that for ten to fifteen years previ-

ously, hazardous and other waste materials were dis-

charged into the on-site sewage treatment system and

seven dry drainage beds. Mr. Bornman expressed fear to

DEP officials that the hazardous wastes were finding

their way into the prison water supply.

In a letter to Department of Correction Commis-

sioner Larry Meachum on April 26, 1989, Connecticut

Department of Environmental Protection Commissioner

Leslie Carothers acknowledged the storage of hazardous

wastes but failed to enforce the provisions of 40 CFR §

262.34(b) which would require the prison to obtain a

RCRA permit as a storage facility. Application for the

RCRA permit would have required the prison to conduct

ground-water monitoring and notify residents of ground

water contamination. Residents unknowingly continued

to drink the contaminated water for three to four years

until the Town of Somers conducted water tests and

found contamination in drinking water wells. During

this time, the Connecticut Department of Environmental

Protection was the enforcement agency for the Environ-

mental Protection Agency. It continues to act in that

capacity.

After serving proper notice and adhering to the

required waiting period, the petitioners filed an environ-

mental citizen suit on March 18, 1994 under the provi-

sions of the Federal Water Pollution Control Act (“Clean

Water Act”), 33 U.S.C. § 1365; Resource Conservation

Recovery Act (“RCRA”), 42 U.S.C. § 6972 and the Com-

prehensive Environmental Response Compensation Lia-

bility Act (“CERCLA”), 42 U.S.C. § 9659 seeking declara-

tory and injunctive relief and award for litigation costs.

3

' Approximately one year subsequent to the filing

of the citizen suit, the State of Connecticut installed

public water lines. Over a year after the filing of the

petitioner’s citizen suit, in a consent order between the

Connecticut Department of Correction and the Connecti-

cut Department of Environmental Protection determined

a allocation of water that a resident could have free per

month for a period of ten years. To get the free allocation

of water, a resident was required to permanently seal

their well. The State of Connecticut installed a number

of monitoring wells and conducted a serie. of studies. No

enforcement suit by the Environmental Protection

Agency nor the Cormnecticut Department of Environmen-

tal Protection has ever been filed.

In a separate federal action, the petitioners and

several of their neighbors filed a federal cost recovery

lawsuit under CERCLA and a suit for damages in State

court, which is still pending. Neither of these suits are

subjects of this petition for writ of certiorari.

On May 4, 1998, the district court granted the

defendant’s motion for judgment on the pleadings and

the petitioners filed a timely notice of appeal.

On September 13, 1999, the U.S. Court of Appeals

for the Second Circuit affirmed the district court’s ruling

and denied the petitioners petition for rehearing on July

18, 2000.

Throughout the case, the petitioners have had

water tests conducted that show a continuing discharge

of hazardous wastes in excess of the allowable discharge

limits determined by the Environmental Protection

Agency.

THE PETITION FOR WRIT OF CERTIO-

RARI SHOULD BE GRANTED BECAUSE THE

OPINION BELOW CONFLICTS WITH ANOTHER

U.S. COURT OF APPEALS RULING REGARDING

THE STATUS OF PLAINTIFFS AS PRIVATE AT-

TORNEY GENERAL PURSUANT TO THE CITIZEN

SUIT PROVISION OF THE CLEAN WATER ACT.

Plaintiffs who have brought citizen suits under

the Clean Water Act, RCRA and CERCLA against pri-

vate polluters have been termed ‘private attorneys gen-

eral’ and have been awarded litigation costs when they

have been deemed a prevailing party. In Armstrong v.

Asarco, Inc., 138 F.3d 382, the court (U.S. Court of

Appeals for the Eight District) affirmed the district

court's award of litigation costs pursuant to 33 U.S.C. §

1365(d) up through June 30, 1995. In doing so, stated,

“In our opinion, plaintiffs played the roles of catalyst and

private attorney general, just as Congress envisioned,

thereby successfully contributing to ASCARCO’s remedi-

ation efforts and eventual settlement with the EPA.”

The ccurt recognized that the private citizen-plaintiffs

were playing an important enforcement role as Congress

had envisioned.

The court below acknowledged that the Clean

Water Act contains a provision to sue as private attorney

general but then took a contradictory position when it

stated that “The statutes at issue do not grant citizens

the right to sue on behalf of the United States nor do

they establish a formula for recovering civil penalties.”

It adds to the contradiction when it states that the

“United States is not the real party in interest here.”

The citizen-suit provisions of the Clean Water Act and

5

RCRA _ expressly provide that the district court may

impose civil penalties of up to $25,000 per day that are

paid to the treasury of the United States. There is no

provision for damages for the injured citizen-plaintiff.

The only significant difference between Arm-

strong v. Asarco, Inc. and this case is that the defendant

is a state claiming sovereign immunity.

The petitioners have not been able to find a case

wherein the plaintiffs status as a private attorney gen-

eral has been determined by the status or class of the

defendant.

II

THE PETITION FOR WRIT OF CERTIO-

RARI SHOULD BE GRANTED BECAUSE THE

OPINION BELOW CONFLICTS WITH THE

COURT’S PRIOR RULING ON PRIVATE EN-

FORCEMENT OF AN IMPORTANT POLICY OF

CONGRESS.

The petition for writ of certiorari should be

granted because the opinion below conflicts with this

Court’s prior ruling on the ability of a private citizen to

bring suit to enforce a policy that Congress has consid-

ered of the highest priority.

When Congress enacted 42 U.S.C. § 200a (the

Civil Rights Act of 1964), it provided a provision for

private enforcement of the act and provided for recovery

of attorneys fees. In Newman v. Piggie Park Enterprises,

390 U.S. 400 (1968), the respondents owned a chain of

drive-in restaurants that refused to serve African Ameri-

cans. The Court acknowledged that enforcement of the

Civil Rights Act of 1964 would prove difficult and that

6

the Nation would have to rely in part upon private

litigation as a means of securing broad compliance with

the law. The Court clearly stated that “A Title II suit is

thus private in form only” and determined that “When a

plaintiff brings an action under that Title, he does so not

for himself alone but also as a ‘private attorney general’,

vindicating a policy that Congress considered of the

highest priority.” The Court also recognized the impor-

tance of Congress’ provision for the recovery of attorneys’

fees to ensure that “aggrieved parties would be in a

position to advance the public interest by invoking the

injunctive powers of the federal courts.”

The petitioners doubt that the Court and the

courts below would have tempered their ardent rulings

had the facilities been state libraries or parks and the

state was the discriminator but claimed sovereign immu-

nity as its sole defense. The plaintiffs would still be

acting as ‘private attorneys general’, vindicating

Congress’ policy on racial discrimination with regard to

public facilities.

Given the hypothesis that a state is not immune

from federal enforcement of the Civil Rights Act of 1964,

then how can it be immune to federal enforcement of

laws prohibiting the dumping of potentially lethal haz-

ardous wastes into the drinking water of private citi-

zens? If a policy invoked by Congress to ensure that

every citizen has a right to be served at a public facility

is a “policy that Congress considered of the highest

priority” then would not a policy designed, in part, to

protect the very lives of citizens also be considered a

policy of the “highest importance”?

CONCLUSION

The Court has determined that Congress has the

power to use private enforcement to ensure compliance

with important acts. The citizen suit provisions of the

Clean Water Act, RCRA and CERCLA are private in

form only. These private attorney general actions are

designed to advance the public interest by ensuring

broad compliance with federal law. If the Nation is the

true beneficiary of the plaintiffs enforcement suit, then

the United States is the real party in interest and there

is no Eleventh Amendment bar to enforcement of its

laws.

Accordingly, the petitioners request that their

petition for writ of certiorari be granted.

Respectfully Submitted,

RALPH G. BURNETTE, JR., pro se

Counsel of Record

82 Rye Hill Circle

Somers, CT 06071

MARIE G. BURNETTE, pro se

82 Rye Hill Circle

Somers, CT 06071

860-749-7462

No.

In The

Supreme Court Of The United States

October Term, 2000

+

MARIE BURNETTE and RALPH BURN ETTE,

Petitioners,

V.

LESLIE CAROTHERS, ENVIRONMENTAL PROTECTION

DEPARTMENT OF CONNECTICUT, ARTHUR J. ROCQUE,

JR., Commissioner Environmental Protection,

LOWELL P. WEICKER, JR.., Governor, BRUCE L. MORRIS,

CT Dept. of Public Works, LARRY MEACHUM, Commissioner

Official Capacity, CT Dept. of Correction, STATE OF

CONNECTICUT, JOHN G. ROWLAND, Governor,

THEODORE R. ANSON, Commissioner, JOHN J.

ARMSTRONG, Commissioner,

Respondents.

—o—

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

+

APPENT [x

+

APPENDIX A - OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT FILED SEPTEMBER 13, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 1998

(Argued: April 9, 1999 Decided: September 13,

1999)

Docket Nos. 98-7835(L), 98-9003(CON)

MARIE G. BURNETTE, RALPH G. BURNETTE, JR.,

Plaintiff-Appellants,

BRIAN E. BURNETTE, A Minor, by his parents and

next friends, Ralph & Marie Burnette, et al.,

Plaintiffs,

LESLIE CAROTHERS, ENVIRONMENTAL PROTEC-

TION DEPARTMENT OF CONNECTICUT,

Consolidated-Defendants-Appellees,

ARTHUR J. ROCQUE, JR., Commissioner Environmen-

tal Protection, LOWELL P. WEICKER, JR., Governor,

BRUCE L. MORRIS, CT Dept. of Public Works, LARRY

MEACHUM, Commissioner Official Capacity, CT Dept.

of Corrections, STATE OF CONNECTICUT, JOHN G.

ROWLAND, Governor, THEODORE R. ANSON, Com-

missioner, JOHN J. ARMSTRONG, Commissioner,

Defendants-Appellees.

Before:

WINTER, Chief Judge,

NEWMAN, and SOTOMAYOR, Circuit Judges.

Appeal from a dismissal of a citizen enforcement

action and from an adverse grant of summary judgment

on a CERCLA claim by the United States District Court

for the District of Connecticut (Ellen Bree Burns, Judge).

We hold that appellants’ citizen suit brought pursuant to

the Clean Water Act, Resource Conservation and Recov-

ery Act, and CERCLA as well as appellant’s claim for

response costs under CERCLA are barred by the

Eleventh Amendment.

We therefore affirm.

RALPH G. BURNETTE, JR., and Marie G. Burnette,

pro se, Somers, Connecticut, for Plaintiffs - Appel-

lants.

ROBERT D. SNOOK, Assistant Attorney General

2a

(Richard Blumenthal, Attorney General of Connecticut,

of counsel), Hartford, Connecticut, for Defendants-

Appellees Lowell P. Weicker, Jr., Governor, Bruce L.

Morris, CT Dept. of Public Works, Larry Meachum, Com-

missioner Official Capacity, CT Dept. of Corrections,

State of Connecticut, John G. Rowland, Governor,

Theodore R. Anson, Commissioner, John J. Armstrong,

Commissioner.ROBERT B. TEITELMAN, Assistant At-

torney General (Richard Blumenthal, Attorney General

of Connecticut, of counsel), Hartford, Connecticut, for

Defendants-Appellees Leslie Carothers, Environmental

Protection Department of Connecticut, and Arthur J.

Rocque, Jr., Commissioner Environmental Protection.

WINTER, Chief Judge:

This is an appeal from the dismissal of a citizen

enforcement action brought pursuant to the citizen suit

provisions of the Clean Water Act (“CWA”), 33 U.S.C. §

1365, the Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. § 6972, and the Comprehensive

Environmental Response, Compensation and Liability

Act (“CERCLA”), 42 U.S.C. § 9659, as amended by the

Superfund Amendments and Reauthorization Act of

1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986). Because

we agree with the district court that the Eleventh

Amendment bars the relief sought by the citizen suit and

the action for recovery of response costs, we affirm.’

Appellants, Marie G. Burnette and Ralph G. Bur-

1

Throughout this opinion we refer to “Eleventh Amendment”

state sovereign immunity. However, we recognize that this “phrase

is convenient shorthand but something of a misnomer, for the

sovereign immunity of the States neither derives from nor is limited

by the terms of the Eleventh Amendment.” Alden v. Maine, 119 S.

Ct. 2240, 2246 (1999)

3a

nette, Jr., appearing pro se, are homeowners in the Rye

Hill section of Somers, Connecticut. They filed this

action against various state officers in their official ca-

pacities, claiming that hazardous substances had em-

anated, and continued to emanate from the Connecticut

Correctional Institute (“CCI”), a prison located north of

Rye Hill and operated by the Connecticut Department of

Corrections. Appellants alleged that these toxic sub-

stances had polluted and were continuing to pollute their

on-site water wells. They sought injunctive and mone-

tary relief.” In addition, they sought reimbursement

from defendants for response costs which were alleged to

have been incurred as a result of “a release or threatened

release of hazardous substances” from CCI. See 42

U.S.C. § 9607(a) (4) (B). The complaint also included

claims under CERCLA for a declaratory judgment, fu-

ture response costs, and contribution, pursuant to 42

U.S.C. § 9613 (f) (1).

Arguing that the case was barred by the Eleventh

Amendment, appellees moved to dismiss for lack of sub-

ject matter jurisdiction. They also moved for summary

judgment on the claim for response costs, arguing that

‘ Sometime in 1993, water samples from wells in the Rye Hill

area were found to contain certain chemicals in excess of standards

for safe drinking water set by the State of Connecticut and the

United States. The hazardous substances were found to be flowing

from CCI, apparently as a result of previous disposal practices.

Upon discovering the contamination, Connecticut officials immedi-

ately caused special filters to be installed in homes with high levels

of the chemicals. The Department of Environmental Protection also

began providing bottled water to the affected residetits. A public

water system was subsequently extended into the Rye Hill area,

although not all of the homeowners chose to connect to it. The

Department of Corrections, pursuant to a consent decree it entered

into with the Department of Environmental Protection, ceased

maintaining the filters after the public water system became opera-

tional.

4a

| |

the Eleventh Amendment prohibited recovery of mone-

tary damages. The district court dismissed all ciaims,

holding that the State and its agents were immune from

suit under the Eleventh Amendment. In addition, the

court granted appellees’ motion for summary judgment,

holding that appellants were not entitled to response

costs from the State or to potential contribution costs

because such recovery would violate the State’s

sovereign immunity. This appeal followed.

DISCUSSION

a) Citizen Suit

We review de novo a dismissal pursuant to Fed.

R. Civ. P. 12 (c ). See Sheppard v. Beerman, 18 F.3d

147,150 (2d Cir. 1994). In deciding a Rule 12 (c ) motion,

we apply the same standard as that applicable to a

motion under Rule 12 (b) (6), accepting the allegations

contained in the complaint as true and drawing all

reasonable inferences in favor of the nonmoving party.

See id. We may dismiss the complaint only if “it appears

beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

In dismissing the action, the district court held

that Congress did not, by authorizing environmental

citizen suits, intend to abrogate the states’ sovereign

immunity. It also concluded that the State of Connecti-

cut did not waive its sovereign immunity as to plaintiffs’

CWA, RCRA, and CERCLA claims. We agree.

The Eleventh Amendment provides that: “The

Judicial power of the United States shall not be con-

strued to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by Citi-

5a

zens of another State, or by Citizens or Subjects of any

Foreign State.” U.S. Const. Amend. XI. “While the

Amendment by its terms does not bar suits against a

State by its own citizens, [the Supreme] Court has con-

sistently held that an unconsenting State is immune

from suits brought in federal courts by her own citizens

as well as by citizens of another State.” Edelman v.

Jordan, 415 U.S. 651, 662-63 (1974). State immunity

extends to sate agencies and to state officers who act on

behalf of the state. See Puerto Rico Aqueduct & Sewer

Auth. V. Metcalf & Eddy, Inc., 506 U.S. 139, 142-147

(1993). Thus when the state is the real party in interest,

the Eleventh Amendment generally bars federal court

jurisdiction over an action against a state official acting

in his or her official capacity. See Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89, 101-102 (1984).’

In certain circumstances, however, Congress may

abrogate the states’ constitutionally secured immunity

from suit in federal court. To do so, Congress must make

“its intention unmistakably clear in the language of the

statute.” Dellmuth v. Muth, 491 U.S. 233, 228 (1989)

(quoting Atascadero State Hosp. v. Scanlon, 473 U.S.

234, 242 (1985)). “A general authorization for suit in

federal court is not the kind of unequivocal statutory

language sufficient to abrogate the Eleventh Amend-

ment. When Congress chooses to subject the States to

federal jurisdiction, it must do so specifically.” Atas-

cadero, 473 U.S. at 246.

The CWA, RCRA, and CERCLA contain substan-

: An important exception to this general rule is set forth in Ex

Parte Young, 209 U.S. 123 (1908), which holds that the Eleventh

Amendment does not bar suits seeking prospective relief against state

officials acting in violation of federal law because such action is not

considered an action of the state.

6a

eee

tially identical provisions permitting citizens to sue as

private attorneys general in circumstances where gov-

ernment authorities have, after notice, failed to take

steps to remedy particular environmental harms. These

provisions state that “any citizen may commence a civil

action on his own behalf — (1) against any person

(including (i) the United States, and (ii) any other gov-

ernmental instrumentality or agency to the extent per-

mitted by the eleventh amendment to the Constitution)

who is alleged to be in violation of [the Act].” 33 U.S.C. §

1365(a) (1) (emphasis added); see also 42 U.S.C. § 6972;

42 U.S.C. § 9659. These provisions do not unequivocally

express Congress’s intent to abrogate sovereign immu-

nity and subject states to suit. Far from evidencing a

Congressional intent to do away with sovereign immu-

nity, these provisions are expressly limited by the

Eleventh Amendment. See Natural Resources Defense

Council v. California Dep’t of Transp., 96 F.3d 420, 423

(9th Cir. 1996) (district court properly dismissed all

claims under CWA against state agency on Eleventh

Amendment immunity ground); Froebel v. Meyer, 13 F.

Supp. 2d 843, 849-50 (E.D. Wis. 1998) (“[T]he plainest

meaning” of language in CWA is that “the Eleventh

Amendment retains some presumptive force ...”); Row-

lands v. Pointe Mouillee Shooting Club, 959 F. Supp.

422, 426 (E.D. Mich. 1997) ( RCRA citizen suit provision

operates within the Eleventh Amendment), affd, 182

F.3d 918 (6th Cir. 1999). The district court was, there-

fore, correct in holding that these citizen suit provisions

do not abrogate Connecticut’s sovereign immunity and

that the state defendants are therefore entitled to immu-

nity from suit in federal court. _

Appellants assert, however, that even if a citizen

suit would ordinarily be barred under the Eleventh

Amendment, immunity does not apply here because the

complaint is in the nature of a qui tam action and the

7a

United States is the real party in interest. We disagree.

In Connecticut Action Now, Inc. v. Roberts Plating Co.,

457 F.2d 81 (2d Cir. 1972), we held that “there is no

common law right to maintain a qui tam action; author-

ity must always be found in legislation...[T]he terms and

structure of the particular statute are decisive.” Id. at

84. The statutes at issue do not grant citizens the right

to sue on behalf of the United States nor do they estab-

lish a formula for recovering civil penalties. To the

contrary, the citizen suit provisions authorize “any citi-

zen [to] commence a civil action on his own behalf.” 33

U.S.C. § 1365(a) (emphasis added); see also 42 U.S.C. §

6972; 42 U.S.C. § 9659. The United States is not,

therefore, the real party in interest here.

Appellants suggest on appeal that some of their

claims remain viable because they fit within the excep-

tion to Eleventh Amendment immunity established by

Ex Parte Young, 209 U.S. 123 (1908) (holding that suits

against state officers, rather than against State itself,

are permitted when seeking prospective relief). See Note

3, supra. However, appellants failed to raise this issue

in the district court, even though they were then repre-

sented by counsel. Perceive that no miscarriage of

justice will result, we hold that their claim under Ex .

Parte Young has been waived. See Singleton v. Wulff,

428 U.S. 106, 120-21 (1976) (noting that federal appel-

late courts may resolve issues not passed on below where

injustice might otherwise result).

b) Recovery of Response Costs

Appellants next claim that they incurred costs in

responding to the release of hazardous wastes from CCI

and are therefore entitled to reimbursement from the

State pursuant to 42 U.S.C. § 9607(a). Appellants also

seek a declaratory judgment for future response costs

8a

and contribution pursuant to 42 U.S.C. § 9613(f) (1).

We review the district court’s grant of summary

judgment de novo. See Young v. County of Fulton, 160

F.3d 899, 902 (2d Cir. 1998). In doing so, we construe the

evidence in the light most favorable to the nonmoving

party and di ell reasonable inferences in its favor.

See Anderson v. wiberty Lobby, Inc., 477 U.S. 242, 255

(1986); Maquire v. Citicorp Retail Servs., Inc., 147 F.3d

232, 235 (2d Cir. 1998).

As an initial matter, claims made pursuant to

CERCLA Section 113(f), 42 U.S.C. § 9613(f), are avail-

able only to a potentially responsible party seeking to

recover from another potentially responsible party. See

Bedford Affiliates v. Sills, 156 F.3d 416, 423-25 (2d Cir.

1998) (discussing differences between claims for recovery

under 42 U.S.C. § 9607(a) and claims for contribution

under 42 U.S.C. § 9613(f) and holding that a Section

9607(a) suit is not available to potentially responsible

parties); H.R. Rep. No 99-253(1), at 79 (1985), reprinted

in 1986 U.S.C.C.A.N. 2835, 2861 (principal goal is pass-

ing CERCLA Section 113 was to “clarif[y] and confirm|[]

the right of a person held jointly and severally liable

under CERCLA to seek contribution from other poten-

tially liable parties, when the person believes that it has

assumed a share of the cleanup or cost that may be

greater than its equitable share under the circum-

stances”). Because appellants to not claim to be a

potentially responsible party, recovery under Section

113(f) is not available to them.

We turn therefore to their remaining claim for

response costs under CERCLA Section 107(a), 42 U.S.C.

§ 9607(a). In Seminole Tribe v. Florida, 517 U.S. 44, 55

(1996), the Supreme Court held that Congress may abro-

gate the states’ sovereign immunity if two conditions are

met: (i) Congress “unequivocally expresse[d] its intent to

9a

abrogate the immunity” and (ii) Congress acted

“pursuant to a valid exercise of power.” (alteration in

original) internal quotation marks omitted). In the

instant case, the first requirement has been satisfied. In

Pennsylvania v. Union Gas Co., the Supreme Court held

that the provisions of CERCLA unmistakably express

Congress’s intent to divest the states of their Eleventh

Amendment immunity. See Union Gas, 491 U.S. 1, 8

(1989), overruled on other grounds by Seminole, 517 U.S.

44. The sole remaining question is, therefore, whether

Congress enacted CERCLA pursuant to a constitutional

provision granting Congress the power to abrogate. We

hold that it did not.

The Supreme Court in Seminole held that

Congress could abrogate the states’ Eleventh Amend-

ment immunity only when acting under the power vested

in it by Section 5 of the Fourteenth Amendment. See 517

U.S. at 59, 65-66. CERCLA, however, was enacted

pursuant to the Commerce Clause, and any provision in

it that makes a state liable to private parties is accord-

ingly unenforceable. See Seminole, 517 U.S. at 62 (

implicitly recognizing that CERCLA was enacted pur-

suant to Commerce Clause); Union Gas, 491 U.S. at

19-23 (CERCLA enacted pursuant to Commerce Clause);

Ninth Avenue Remedial Group v. Allis-Chalmers Corp.,

962 F. Supp. 131, 135 (N.D. Ind. 1997) (holding that

because Congress did not have power to abrogate immu-

nity under Commerce Clause,’ unconsenting states are

not liable to private parties under CERCLA); United

States v. Iron Mountain Mines, Inc., 952 F. Supp. 673,

675 (E.D. Cal. 1996) (CERCLA passed pursuant to Com-

merce Clause and thus Congress lacked power to abro-

gate immunity); Prisco v. New York, No. 91 Civ. 3990,

1996 WL 596546, at *12-*14 (S.D.N.Y. Oct. 16, 1996)

(CERCLA claims dismissed because sovereign immunity

could not be abrogated without action pursuant to Four-

10a

teenth Amendment or state waiver and neither was

present).

Appellants contend that CERCLA was also en-

acted pursuant to Congress’s spending power under Arti-

cle I, Section 8, Clause 1. Even if this were the case,

however, Congress would still lack the power to abrogate

the states’ immunity. “[A]fter Seminole, Congress can-

not abrogate the States’ Eleventh Amendment sovereign

immunity pursuant to any Article I power.” Close v. New

York, 125 F.3d 31, 38 (2d Cir 1997); see also Florida

Prepaid Postsecondary Educ. Expense Bd. V. College Sav.

Bank, 119 S. Ct. 2199, 2205 (1999) (“Seminole Tribe

makes clear that Congress may not abrogate state

sovereign immunity pursuant to its Article I powers ...”);

cf. Alden, 119 S. Ct. at 2246 (holding that “the powers

delegated to Congress under Article I of the United

States Constitution do not include the power to subject

nonconsenting States to private suits for damages in

state courts”). “(T]he only source of congressional abro-

gation stems from the Fourteenth amendment.” Close,

125 F.3d at 38; see also College Sav. Bank v. Florida

Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct.

2219, 2224 (1999) (noting that Court has recognized

individual suits against unconsenting states only when

authorized by Congress’s valid exercise of its Fourteenth

Amendment enforcement power).

Alternatively, appellants maintain that by creat-

ing a claim for recovery of response costs, CERCLA

created a property right and was therefore enacted pur-

suant to Congress’s power under Section 5 of the Four-

teenth Amendment. However, Congress’s creation of a

private claim for damages does not, without more, give

rise to a legitimate claim of entitlement. See Board of

Regents v. Roth, 408 U.S. 564, 577 (1972) (finding that to

_ have property interest, person “must have more than a

lla

unilateral expectation of it. He must, instead, have a

legitimate claim of entitlement to it.”). To hold other-

wise would eviscerate Seminole. Because we find that

Congress’s creation of CERCLA response-cost claims,

standing alone, is insufficient to establish a cognizable

property interest under the Fourteenth Amendment, we

need to address “whether the prophylactic measure

taken under purported authority of § 5 ... was gen-

uinely necessary to prevent violation of the Fourteenth

Amendment.” College Savings Bank, 119 S. Ct. at 2225;

see generally City of Boerne v. Flores, 521 U.S. 507

(1997).

Appellants also claim that although Connecticut

did not expressly waive its Eleventh Amendment

sovereign immunity, its actions may be construed as a

constructive waiver. Relying on Parden v. Terminal

Ry., 377 U.S. 184 (1964), they contend that Connecticut

consented to suit in federal court under CERCLA by

engaging in an activity regulated by Congress, namely

the operation of a prison from which toxic chemicals

were released. Parden, however, has now been ex-

- pressly overruled. See College Savings Bank, 119 S. Ct.

at 2228. Because the law is now clear that a state

cannot “constructively waive(]” its sovereign immunity

in the manner alleged, id., appellants’ argument on this

point fails.

Appellants finally argue that Connecticut con-

sented to suit under CERCLA through the acceptance of

federal monies. However “the mere receipt of federal

funds cannot establish that a State has consented to

suit in federal court.” Atascadero, 473 U.S. at 246-47.

Here, Congress did not manifest a clear intention to

condition the receipt of federal funds under CERCLA on

a state’s waiver of Eleventh Amendment immunity.

The district court was, therefore, correct in finding that

12a

Connecticut did not consent to suit in federal court.

CONCLUSION

We therefore affirm.

13a

APPENDIX B - RULING OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIR-

CUIT FOR A PETITION FOR REHEARING FILED

JULY 18, 2000

DCCT/NHCT

94cv420

Burns

UNITED STATES COURT OF APPEALS,

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

At a stated term of the United States Court of

Appeals for the

Second Circuit, held at the United States Court-

house, Foley Square, in the City of New York, on the

18th day of July two thousand.

Marie G. Burnette, Ralph G. Burnette,. Jr.,

Plaintiff-Appellants,

Vv . Dkt No: 98-7835

Weicker,

Defendant-Appellee.

A petition for panel rehearing and a petition for

rehearing en banc having been filed herein by the appel-

lants Marie G. Burnette and Ralph G. Burnette.

l4a

Upon consideration by the panel that decided the

appeal, it is ordered that said petition for rehear-

ing is DENIED.

It is further noted that the petition for rehearing

en banc has been transmitted to the judges for the court

in regular active service and to any other judge that

heard-the appeal and that no such judge has requested

that a vote be taken thereon.

FOR THE COURT

ROSEANN B. MACKECHNIE, Clerk ;

By: /s/ Beth J. Meador

Beth J. Meador

Administrative Attorney

15a

APPENDIX C - RULING OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF CON-

NECTICUT, MAY 4, 1998

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

MARIE G. BURNETTE, ET UX.,: MASTER

: CONSOLIDATED

: CASE

Plaintiffs : 3:94-CV-00420 (EBB)

v.

JOHN G. ROWLAND, ET AL.,

Defendants

RALPH G. BURNETTE, JR.,

ET AL.., : 3:94-CV-00676 (EBB)

Plaintiffs

V.

LARRY R. MEACHUM, ET AL.,

Defendants

RULING ON DEFENDANTS' MOTION FOR JUDG-

MENT ON THE PLEADINGS AS TO ALL COUNTS OF

PLAINTIFFS' CITIZEN SUIT, ACTION NO.

3:94-CV-00420 (EBB)

16a

INTRODUCTION

This "Citizens Suit" Complaint is comprised of

four counts filed against the State of Connecticut, the

Governor of the State in his Official capacity, the Con-

necticut Department of Corrections, the Connecticut De-

partment of Public Works, and their respective commis-

sioners in their official capacities (the "State Defen-

dants"). The four counts alleged are violations of: (1) the

provisions of the Federal Water Pollution Control Act,

commonly called the Clean Water Act ("CWA"), 33 U.S.C.

§ 1365; (2) and (3) the provisions of the Resource Conser-

vation Recovery Act ("RCRA"), 42 U.S.C. § 6972; and (4)

the provisions of the Comprehensive Environmental Re-

sponse Compensation Liability Act ("CERCLA"), 42

U.S.C. § 9659.

The State Defendants have moved, pursuant to

Rule 12(c) of the Federal Rules of Civil Procedure, for

judgment on the pleadings, dismissing all counts of the

Citizen Suit, on the grounds that this Court lacks subject

matter jurisdiction over the causes of action pleaded

therein.

STATEMENT OF FACTS

The Court summarizes only those facts believed

necessary to an understanding of the issues in, and the

decision rendered on, this Motion.

The Citizen Suit Plaintiffs, the owners of thirty-

seven (37) homes in the Rye Hill section of Somers,

Connecticut, whose private on-site water wells are al-

leged to have been polluted with hazardous substances,

have brought this action against the State and several of

its officials. The Third Amended Complaint asserts that

Plaintiffs' wells have been polluted by hazardous sub-

17a

stances, namely certain dry-cleaning solvents, which

have emanated, and continue to emanate, from the cor-

rectional facility at Somers, which facility abuts their

properties.

Upon discovery, the State immediately took the

lead in dealing with the groundwater pollution problem

at Plaintiffs, residences. In this regard, the State, acting

through the Department of Environmental Protection,

began providing bottled water to the affected residents

as soon as the well contamination problem was discov-

ered. Thereafter, filters were installed on the affected

wells to purify the well water until a permanent solution

to the drinking water needs of the residents could be

formulated and accomplished. The long-term solution to

the drinking issue was to extend a public water system

into the affected neighborhood and to connect the resi-

dences to this new system. All of these actions have been

completed at the sole expense of the State, though some

residents have refused to connect to the new public

water system.

Furthermore, Defendant Connecticut Depart-

ment of Corrections has entered into a consent order

with the Connecticut Department of Environmental Pro-

tection covering the long-term remediation of the

groundwater problem, including the monitoring, sam-

pling and analysis of water.

LEGAL ANALYSIS

I. The Standard of Review

Rule 12 (c), Fed.R.Civ.P., provides in pertinent

part:

After the pleadings are closed but within

18a

such time as not to delay the trial, any

party may move for judgment on the

pleadings

Pursuant to Fed. R. Civ. P. 12(c), judgment on the

pleadings may be granted when the material facts are

undisputed and judgment on the merits is possible

merely by considering the contents of the pleadings.

Seller v. M.C. Floor Crafter, Inc.,_842 F.2d 639, 642 (2d

Cir. 1988). In considering such a motion, the Court

must accept as true all of the well-pleaded facts alleged

in the Citizen Suit and may not dismiss the action

unless the Court is convinced that the Citizen Suit

Plaintiffs can prove no set of facts in support of their

claim which would entitle them to relief. George C. Frey

Ready-Mixed Concrete, Inc., v. Pine Hill Concrete Mix

Corp., 554 F.2d 551, 553 (2d Cir. 1977), quoting Conley

v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80

(1957). Accord Bloor v. Carr, Spanbock, Londin, Rod-

man & Pass, 754 F2d 57, 61 (2d Cir. 1985); LoSacco v.

City of Middletown, 745 F. Supp. 812, 814 (D.Conn.

1990)(dismissal is justified only when the allegations of

the complaint itself clearly demonstrate that plaintiff

does not have a claim). Courts have said that they

accept the truth of "facts" but not "legal conclusions." 5

C. Wright and A. Miller, Federal Practice and Proce-

dure: Civil Section 1357 (1969).

II. The Standard As Applied

The CWA, RCRA and CERCLA each contain vir-

tually identical pertinent provisions permitting citizens

to sue as private attorneys general in situations where

federal and/or state authorities have, after notice, failed

to take action to remediate particular environmental

19a

problems. These identical pertinent provisions provide

that:

“...any citizen may commence a civil action on

his own behalf -(1) against any person (including

(i) the United States, and (ii) any other govern-

mental instrumentality or agency to the extent

permitted by the eleventh amendment to the Con-

stitution...”

33 U.S.C. § 1365(a); 42 U.S.C. § 6972(a); 42 U.S.C. §

9659 (emphasis added).

Congress’ intent to abrogate the States’ immu-

nity from suit must be obvious from "a clear legislative

'statement", Blatchford v. Native Villacte of Noatak, 501

U.S. 775, 786 (1991). In Atascadero State Hospital v.

Scanlon, 473 U.S. 234 (1985), the Supreme Court held

that "[a] general authorization for suit in federal court

is not the kind of unequivocal statutory language suffi-

cient to abrogate the Eleventh Amendment." Jd. at 246.

See also Blatchford, 501 U.S. at 786, n. 4. Rather, as the

Supreme Court wrote in Dellmuth v. Muth, 491 U.S.

223 (1989):

"To temper Congress, authorized powers of abro-

gation with due concern for the Eleventh

Amendment's role as an essential component of

our constitutional structure, we have applied a

simple but stringent test: Congress may abro-

gate the States’ constitutionally secured immu-

nity from suit in federal court only by making its

intention unmistakably clear in the language of

the statute."

20a

Id. at 227-228. .

The environmental citizen suit provisions at issue

in this case do not equivocally express Congress’ attempt

to abrogate the Eleventh Amendment immunity. In fact,

by their very terms, they operate within the Eleventh

Amendment, specifically preserving it in the clearest

possible terms. Abrogation of sovereign immunity is the

antithesis, then, of the provisions of the present Citizen

Suits brought against the State Defendants. Rowland v.

Points Mouillee Shooting Club, 959 F. Supp. 422, 426

(E.D. Mich. 1997) (dismissing claim under RCRA based

on preservation of sovereign immunity contained in the

statute itself.)’

In addition, Congress would not have acted pur-

suant to a valid exercise of power, even if it had clearly

intended to abrogate Congressional immunity. Seminole

Tribe v. Florida, 517 U.S. 44 (1996). Congress enacted

RCRA and the CWA, along with CERCLA, pursuant to

the Commerce Clause. See Pennsylvania v. Union Gas

Co.,.491 U.S. 1 (1989) (CERCLA); United States v. Byrd,

609 F.2d 1204, 1209 (7th Cir. 1979) (CWA) ; United

States v. Rogers, 6,85 F. Supp. 201, 203 (D. Minn.1987)

(RCRA). Inasmuch as Seminole plainly rejected the

Commerce Clause as a source of congressional power to

waive sovereign immunity, for this reason, too, the Citi-

zens Suits must fail.

Finally, it is also clear that the State of Connecti-

cut did not waive its sovereign immunity as to these

claims. The test for determining whether a State has

waived its immunity from federal court jurisdiction is a

stringent one." Atascadero, 373 U.S. at 241. In fact, the

1 Plaintiffs have conceded that the Rowland decision is "clearly on

point..." Letter from counsel to Citizen Suit Plaintiffs to Judge

Thompson, July 21, 1997.

2la

Citizen Suit Plaintiffs do not propound any such waiver

in their pleadings or moving papers. In any event, the

release of the polluting chemicals by the State at the

Somers facility was plainly involuntary, and therefore

could not possibly constitute the required knowing and

deliberate waiver of its sovereign immunity.

CONCLUSION

Pursuant to Fed.R.Civ.P. 12(c), dismissal of a

complaint is warranted when the allegations of the

complaint itself clearly demonstrate that plaintiff does

not have a claim. After thorough research and the

detailed analysis set forth herein, the Court is con-

vinced that the Citizen Suit Plaintiffs can prove no set

of facts in support of their claims which would entitle

them to relief. Accordingly, Defendants’ Motion for

Judgment on the Pleadings as to All Counts of Plain-

tiffs Citizen Suit, No. 3:94-CV-00420 (EBB), [Doc. No.

114] is GRANTED.

SO ORDERED

/s/ ELLEN B. BURNS

ELLEN BREE BURNS,

SENIOR JUDGE

UNITED STATES DISTRICT

COURT

Dated at New Haven, Connecticut this 4" day of May,

1998.

22a

APPENDIX D - 42 USC § 6972

-CITE

42 USC Sec. 6972 01/06/97

-EXPCITE

TITLE 42 -THE PUBLIC HEALTH AND WELFARE

CHAPTER 82 -SOLID WASTE DISPOSAL

SUBCHAPTER VII -MISCELLANEOUS PROVISIONS

-HEAD

Sec. 6972. Citizen suits

-STATUTE

(a) In 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 chapter; 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 including any past or present

generator, past or present transporter, or past or present

owner or operator of a treatment, storage, or disposal

23a

facility, who has contributed or who is contributing to

the past or present handling, storage, treatment, trans-

portation, or disposal of any solid or hazardous waste

which may present an imminent and substantial endan-

germent to health or the environment; or

(2) against the Administrator where there is al-

leged a failure of the Administrator to perform any act or

duty under this chapter which is not discretionary with

the Administrator. Any action 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. 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 the

citizenship of the parties, to enforce the permit, stan-

dard, 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, transporta-

tion, or disposal of any solid or hazardous waste referred

to in paragrh (1)(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 6928(a) and (g)

of this title.

(b) Actions prohibited

(1) No action may be commenced under subsection

(a)(1)(A) of this section -

24a

(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, prohibi-

tion, 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 sub-

chapter III of this chapter; 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 compli-

ance with such permit, standard, regulation, condition,

requirement, prohibition, or order. In any action under

subsection (a)(1)(A) of this section in a court of the

United States, any person may intervene as a matter of

right.

(2)(A) No action may be commenced under sub-

section (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 endan-

germent may occur;

(3) any person alleged to have contributed or to

be contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or

25a

hazardous waste referred to in subsection (a)(1)(B) of

this section, except that such action may be brought

immediately after such notification in the case of an

action under this section respecting a violation of sub-

chapter III of this chapter.

(B) No action may be commenced under subsec-

tion (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 prosecut-

ing an action under section 6973 of this title or under

section 106 of the Comprehensive Environmental Re-

sponse, Compensation and Liability Act of 1980 (42

U.S.C. 9606), (FOOTNOTE 1)

(FOOTNOTE 1) So in original. The comma

probably should be a semicolon.

(ii) is actually engaging in a removal action

under section 104 of the Comprehensive Environmental

Response, Compensation and Liability Act of 1980 (42

U.S.C. 9604);

(iii) has incurred costs to initiate a Remedial

Investigation and Feasibility Study under section 104 of

the Comprehensive Environmental Response, Compen-

sation and Liability Act of 1980 (42 U.S.C. 9604) and is

diligently proceeding with a remedial action under that

Act (42 U.S.C. 9601 et seq.); or

(4) has obtained a court order (including a con-

sent decree) or issued an administrative o6rder under

section 106 of the Comprehensive Environmental Re-

26a

sponse, Compensation and Liability Act of 980

(FOOTNOTE 2) (42 U.S.C. 9606) or section 6973 of this

title pursuant to which a responsible party is diligently

conducting a removal action, Remedial Investigation and

Feasibility Study (RIFS), or proceeding with a remedial

action. (FOOTNOTE 2) So in original. Probably should

be 111980". In the case of an administrative order re-

ferred to in clause (iv), actions under subsection (a)(1)(B)

of this section 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 subsec-

tion (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 prosecut-

ing an action under subsection (a)(1)(B) of this section;

(ii) is actually engaging in a removal action

under section 104 of the Comprehensive Environmental

Response, Compensation and Liability Act of 1980 (42

U.S.C. 9604); or

(3) has incurred costs to initiate a Remedial

Investigation and Feasibility Study under section 104 of

the Comprehensive Environmental Response, Compen-

sation and Liability Act of 1980 (42 U.S.C. 9604) and

is diligently proceeding with a remedial action under

that Act (42 U.S.C. 9601 et seq.).

(D) No action may be commenced under subsec-

tion (a)(1)(B) of this section by any person (other than a

State or local government) with respect to the siting of a

27a

hazardous waste treatment, storage, or a disposal facil-

ity, nor to restrain or enjoin the issuance of a permit for

such facility.

(E) In any action under subsection (a)(1)(B) of

this section 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 sub-

section (a)(1)(B) of this section 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.

(c) Notice

No action may be commenced 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 sub-

chapter III of this chapter. Notice under this subsection

shall be given in such manner as the Administrator shall

prescribe by regulation. Any action respecting a violation

under this chapter may be brought under this section

only in the judicial district in which such alleged viola-

tion occurs.

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(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 6976 of this

title, may award costs of litigation (including reasonable

attorney and expert witness fees) to the prevailing or

substantially prevailing party, whenever the court deter-

mines 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 stan-

dard or requirement relating to the management of solid

waste or hazardous waste, or to seek any other State

relief (including relief against the Administrator or a

agency).

(g) Transporters

A transporter shall not be deemed to have con-

tributed or to be contributing to the handling, storage,

treatment, or disposal, referred to in subsection (a)(1)(B)

of this section 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

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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.

-SOURCE

(Pub. L. 89-272, title II, Sec. 7002, as added Pub. L.

94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2825; amended

Pub. L. 95-609, Sec. 7(p), Nov. 8, 1978, 92 Stat. 3083;

Pub. L. 98-616, title IV, Sec. 401, Nov. 8, 1984, 98 Stat.

3268.)

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