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PRICE v. USN

November 13, 1992

GLORIA PRICE, et al., Plaintiffs,
v.
UNITED STATES NAVY, et al., Defendants. AND RELATED COUNTER-ACTIONS


GONZALEZ


The opinion of the court was delivered by: IRMA E. GONZALEZ

ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION AND AFFIRMING JUDGMENT ON PARTIAL FINDINGS

On October 22, 1992, the United States brought a Motion for judgment on partial findings pursuant to Rule 52(c) of the Federal Rules of Civil Procedure. Rule 52(c) provides as follows:

 
" . . . If during a trial without a jury a party has been fully heard with respect to an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party on any claim, . . . that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, . . . such a judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule [Rule 52]."

 The court granted the motion of the United States and dismissed count two of plaintiffs' complaint, that is plaintiffs' claim under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992(k).

 On October 23, 1992, plaintiffs asked this court to reconsider its ruling and the United States has responded to plaintiffs' motion for reconsideration of dismissal. After having reviewed the memoranda submitted by counsel in support of their respective positions and again having considered the testimony and evidence, the court makes the following findings of fact and conclusions of law.

 No special inferences are to be made by the court in plaintiffs' favor in ruling upon a motion to dismiss pursuant to Rule 52(c) of the Federal Rules of Civil Procedure. *fn1" Stone v. Millstein, 804 F.2d 1434, 1436-37 (9th Cir. 1986). The court should grant the motion if it becomes apparent that plaintiff has failed to carry an essential burden of proof.

 Plaintiffs, in their motion for reconsideration, make the same arguments which the court considered at the time it ruled on defendant's motion for judgment on partial findings.

 In the second claim of their first amended complaint, plaintiffs seek an injunction under RCRA, 42 U.S.C. § 6972(a)(1)(B), which would require the United States to remove contamination from their property.

 The citizen suit provision of RCRA provides, in pertinent part, that

 
(a) . . . any person may commence a civil action on his own behalf . . .
 
(1) . . .
 
(B) against any person including the United States . . . who has contributed or who is contributing to the past or present . . . transportation or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . .
 
. . . The district court shall have jurisdiction . . . to order such person to take such other action as may be necessary . . .

 The court agrees with the defendant that the language of the statute implies that there must be a threat which is present now, although the impact of the threat may not be felt until later. The court also agrees that the endangerment must be substantial ...


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