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ZANDS v. NELSON

December 3, 1991

SAMUEL ZANDS AND SARA ZANDS, Plaintiffs,
v.
PAUL IMON NELSON, ELLEN ELIZA NELSON, MILDRED TACEY, JAY GOODWIN, NORMA GOODWIN, STEPHEN KRAMER, CLETUS KRAMER, FRITZ A. NACHANT, Defendants.



The opinion of the court was delivered by: GORDON THOMPSON, JR.

 The procedural history of the case is important:

 * On November 14, 1989, the plaintiffs filed the first amended complaint, which added causes of action under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6924, 6925, and 6945.

 * On June 26, 1990, plaintiffs gave a 60-day notice.

 * On August 16, 1990, plaintiffs filed a second amended complaint and filed a new complaint which was identical, adding a RCRA claim under 42 § 6972(a)(1)(A).

 * On July 1, 1991, plaintiffs filed a third amended complaint, which of significance in the present context changed the RCRA claim from §§ 6972(a)(1)(A) to § 6972(a)(1)(B).

 On Monday, November 4, 1991 at 10:30 a.m., the parties came before the Court on three separate motions filed in this case. First, defendants PAUL IMON NELSON and ELLEN ELIZA NELSON filed a motion for summary judgment that was subsequently joined by defendants MILDRED TACEY, JAY AND NORMA GOODWIN, and FRITZ A. NACHANT, INC ("Defendants' Motions"). second, defendant FRITZ A. NACHANT, INC. had a pending motion from September 17, 1991, that the Court had ordered further briefing on ("Nachant's Motions"). And third, plaintiffs SAMUEL and SARA SANDS filed a motion for partial summary judgment ("Plaintiffs' Motions"). Having fully considered this matter, including review of the papers filed by the parties, the authorities cited therein, and the arguments presented, the court rules as follows:

 FACTUAL BACKGROUND

 Defendants PAUL and ELLEN NELSON owned all title to the property in question from 1961 to November 1976. In 1972, defendant, FRITZ NACHANT CO., allegedly installed the piping and pumps for gasoline tanks at a service station on this land. This installation was done at the instruction of the NELSONS, who operated the gas station until 1975. In 1975, the NELSONS leased the gas station to STEPHEN and CLETUS KRAMER. Although the KRAMERS maintained their lease and operated the gasoline station pumps from May 1975 to March 1979, the property was transferred to MILDRED TACEY, who owned the property from November 1976 to April 1978, and then to JAY and NORMA GOODWIN, who owned the property from April 1978 to December 11, 1980. It was during the time of operation by the NELSONS and the KRAMERS that plaintiffs allege that large amounts of gasoline leaked into the soil and groundwater surrounding the tanks.

 In 1980, plaintiffs SAMUEL and SARA ZANDS purchased the land from the GOODWINS. Plaintiffs allege that they were unaware of the gasoline leakage. They further allege that they were not in anyway responsible for the gasoline contamination, all of which allegedly occurred prior to their purchase of the property.

 CONCLUSIONS OF LAW

 On July 1, 1991, plaintiffs filed the third amended complaint. Plaintiffs' federal jurisdiction in this third amended complaint is based on a claim under section 6972(a)(1)(B) of Title 42 of the United States Code. This section provides in part that ". . . any person may commence a civil action on his own behalf . . . against any person . . . who has contributed . . . to the past . . . 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 . . . . " 42 U.S.C. § 6972(a)(1)(B) (1983 & Supp. 1991).

 I.

 The Notice and Delay Provision of Section 6972(b)(2)(B)

 The first argument presented for summary judgment in the Defendants' Motions was that plaintiffs failed to comply with the notice provisions of CERCLA and RCRA. Indeed, these notice and delay requirements, when applicable, "are mandatory conditions precedent to commencing suit under the RCRA citizens suit provision; a district court may not disregard these requirements at its discretion." Hallstrom v. Tillamook County, 493 U.S. 20, 31, 107 L. Ed. 2d 237 , 110 S. Ct. 304 (1989), reh'g denied, 493 U.S. 1037, 107 L. Ed. 2d 777 , 110 S. Ct. 761 (1990).

 In determining whether plaintiffs complied with the notice and delay in the instant case, the Court first notes the unique procedural history of this case. Although the initial complaint was amended three times, the allegations and the causes of action in the third amended complaint are the only relevant allegations and causes of actions to the Court for purposes of these motions. Cf. Kehr Packages, Inc v. Fidelcor, Inc., 926 F.2d 1406, 1409-10 (3d Cir.), cert. denied, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991) (court did not consider allegations against two defendants who had been left out of amended complaint).

 Additionally, as complaints that have been amended are no longer before the Court, the Court will not examine whether notice and delay provisions were complied with for causes of action that have been omitted in the final amended complaint. As a result, it is not necessary for the Court to determine whether plaintiffs complied with the notice and delay provisions of CERCLA when they filed the initial complaint. Likewise, the Court need not consider whether the notice and delay provisions were complied with at the initial filing of the second complaint (also the filing of the second amended complaint). Instead, the court need only determine whether the existing causes of action, those contained in the third amended complaint, comply with all notice and delay requirements.

 The Court thus turns to the only cause of action contained in the third amended complaint that requires notice and delay: section 6972(a)(1)(B). Section 6972(b)(2)(A) provides that:

 "No action may be commenced under subsection (a)(1)(B) of this section prior to ninety days after the plaintiff has given notice 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, transportation, or disposal of any solid or hazardous waste referred to in subsection (a)(1)(B) of this section . . . ."

 42 U.S.C. § 6972(a)(1)(B) (1983 & Supp. 1991).

 In determining when an action is "commenced" for purposes of RCRA notice and delay, defendants argue that the Court should look to the time of the initial filing. The Court construes this argument in two manners: (A) that an action is considered commenced for purposes of a notice and delay provision at the time of the initial filing of a complaint regardless of when causes of action are later introduced in subsequent amended complaints, and (B) that the notice and delay provision of RCRA requires a non-adversarial period, effectively tolling the delay period from the time of the initial filing.

 A. When An Action Commences For Purposes of Notice And Delay

 Notably, this case does not present the more difficult situation where a claim is in the initial complaint, notice is given, and then the same claim is in the amended complaint. The facts here are simpler: (a) the section 6972(a)(1)(B) claim was not added until the third amended complaint, and (b) the other "notice and delay" claims that were in earlier complaints were left out of this final amended complaint.

 The verb "commence" requires, at a minimum, that the section 6972(a)(1)(B) cause of action appear in the complaint. Regardless of whether an amended complaint restarts a cause of action or merely modifies an existing one, a cause of action cannot he commenced before it appears in the pleading. *fn1" As a result, the Court holds that for purposes of a notice and delay provision relating to a new claim which appears for the first time in the pleadings in the amended complaint, the Court will look to the filing of the amended complaint to determine when the "action" is commenced. An alternative rule would require plaintiffs to give the ninety-day notice required for a section 6972(a)(1)(B) claim prior to filing ...


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