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REEGER v. MILL SERV.

September 12, 1984

THOMAS G. REEGER, et al., Plaintiffs,
v.
MILL SERVICE, INC., THE DEPARTMENT OF ENVIRONMENTAL RESOURCES, and CHARLES A. DURITSA a/k/a "CHUCK DURITSA", and TERRY FABIAN, Defendants



The opinion of the court was delivered by: WEBER

In this action plaintiffs are private individuals who complain of environmental conditions near their homes arising from the operation of a hazardous waste treatment and disposal facility owned by defendant, Mill Service, Inc., a private Pennsylvania corporation. Plaintiffs seek injunctive relief and compensatory damages. They have sued Mill Service, Inc. as well as the Pennsylvania Department of Environmental Resources and two of its employees alleging that the state and its employees have failed to enforce the law against this operation.

 We have previously dismissed the action as to the Pennsylvania Department of Environmental Resources and its two employees, defendants Duritsa and Fabian, as being barred by the Eleventh Amendment, and not presenting a cause of action on any other grounds asserted.

 We now have the motion of the remaining defendant, Mill Service, Inc., to dismiss on a number of grounds, primarily lack of jurisdiction and failure to state a claim upon which relief can be granted. The matter has been fully briefed and is ready for disposition.

 Defendant argues first that to the extent that Plaintiffs' cause of action is based upon federal environmental statutes it must be dismissed because plaintiffs failed to undertake the required statutory procedures applicable to suits by private citizens under the statutes. The Congress has enacted a comprehensive set of statutes dealing with air and water pollution, which are the bases of plaintiffs' complaints, the Clean Air Act, 42 U.S.C. § 7401 et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.

 We adopt the view that the provisions for citizens suits under the Clean Air Act and the Resource Conservation and Recovery Act are almost identical with those of the Clean Water Act which was the particular statute examined by the Court in Middlesex County Sewerage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981). The Court held that the intent of that Act was to exclude any implied right of action independent of the specified citizen suit provision which authorizes private persons to sue for injunctions to enforce the statute.

 As the Court in Sea Clammers noted: "These citizen-suit provisions authorize private persons to sue for injunctions to enforce these statutes. Plaintiffs invoking these provisions first must comply with specified procedures - which respondents here ignored - including in most cases 60 days' prior notice to potential defendants." (p. 14).

 Plaintiffs do not contest the specific failure to give the statutory notice, but alleges that oral complaints had been made both to the Pennsylvania Department of Environmental Resources, and to the federal Environmental Protection Agency (which is not a party to this action). They argue that to require the 60 day notice requirement would be to require a useless act. We do not presume to pass on the wisdom of Congress or on the utility of this requirement at this stage. It is presumed that when Sea Clammers finally reached the Supreme Court, the named defendants had long known of the complaints, yet the Supreme Court enforced the requirement. The statute says " no action may be commenced " (42 U.S.C. § 7604(b)). Strict compliance with the statutory notice requirements has been required by this and other courts. West Penn Power Co. v. Train, 378 F. Supp. 941 (W.D. Pa. 1974), aff'd. 522 F.2d 302 (3d Cir. 1975); City of Highland Park v. Train, 519 F.2d 681 (7th Cir. 1975).

 We conclude that we have no jurisdiction to hear the complaints based on violation of the federal environmental statutes.

 Plaintiffs allege that the conduct of the defendants constitute a violation of their civil rights for which the federal Civil Rights Acts provide a cause of action.

 Plaintiffs argue at considerable length that the participation of defendant Mill Service, Inc. on the state regulatory scheme is sufficient to cover Mill Service, Inc. with the attribute of state action for the purpose of imposing liability under the federal Civil Rights Acts. Plaintiffs cite Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972) and Lugar v. Edmondson Oil Company, 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1981) as support for this proposition.

 Whether plaintiffs attempt to assert a claim under any section of the Civil Rights Act, whether it be 42 U.S.C. §§ 1981, 1982, 1983, 1985 or 1986, we find the element of state action to be immaterial, and for the purpose of this motion, we will assume, without so deciding, that the necessary element of state action includes the activities of defendant Mill Service, Inc. that are described herein.

 In Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981) the Supreme Court expressly ruled that:

 
When the remedial devices provided in a particular act are sufficiently comprehensive, they may suffice to demonstrate a congressional intent to preclude the remedy of suits under § 1983. (p. 20).

 The Court was there concerned with the regulations of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. and the Marine Protection, Research and Sanctuaries Act, 33 U.S. C. § 1411 et seq. While plaintiffs argue that Sea Clammers was concerned solely with ocean pollution and its effect on clam fishermen, as opposed to the claims of the present plaintiffs about their living environment, we find the statutory scheme of regulation almost identical under the statutes here involved, the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. In all cases the existence ...


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