Ethyl Corporation merged with Oxford Paper Co. ("OPC") in 1960. OPC had a de-inking facility at the mill to handle recycled paper. The end product of the waste treatment system was a "paper sludge". "From approximately 1963 through 1970, Ethyl is alleged to have transported the remaining paper sludge to a nearby farm property it had purchased that was adjacent to a rendering plant it operated. The paper sludge contained ... PCB's, along with other chemicals, including calcium carbonate, aluminum sulfate, titanium, corn starch, dyes, biocides, fibers, volatile organic compounds, metal and cyanide. This area was closed to further disposal of paper sludge in 1977." Fraser Paper acquired the farm property and the treatment plant in 2001 and begin remediation of the PCB-impacted soil and other wastes; it spent $3.6 million. In 2004 Fraser Paper sold the disposal area and its claims against Ethyl Corp. to Moraine Properties LLC after it conveyed the remediated paper mill site to Team Industrial LLC. Moraine Properties took additional remedial actions thereafter, apparently with the concurrence of the Ohio EPA.
On June 1, 2007, Moraine sent a letter informing Ethyl of its intent to file suit; copies were sent to civil enforcement authorities. On June 28, 2007, Plaintiffs filed a complaint in Federal District Court asserting a claim under CERCLA (42 U.S.C. § 9607(a)) to recover costs allegedly incurred by Plaintiff and for declaratory judgment for future damages pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201 and 42 U.S.C. § 9613(g)(2). Plaintiff also stated Ohio statutory and common law causes of action, including: cost recovery under Ohio Revised Code § 3746, negligence per se, and indemnity and contribution. On September 13, 2007, Plaintiff filed an amended complaint that added one claim under RCRA (42 U.S.C. § 6972(a)(1)(B)), and one under CWA (33 U.S.C. § 1365).
In Moraine Properties, LLC v. Ethyl Corp., 2008 U.S. Dist. LEXIS 86896 (S.D. OH: 10/08), Ethyl Corporation ("EC") moved to dismiss Moraine Properties LLC (“MP”) Federal causes of action on the following grounds: (a) MP incurred no response costs itself, and (b) MP failed to comply with the notice provisions of RCRA and CWA. EC also asked that the declaratory relief action be dismissed if the CERCLA, RCRA, and CWA claims were. The District Court noted, as to the CERCLA action, that the 6th Cir. had allowed successors-in-interest to sue under CERCLA, and so it perceived no meaningful distinction to be drawn here. The assignment of the CERCLA cause of action was held to be proper.
The District Court noted that both 40 C.F.R. § 135.3(a) and 40 C.F.R. § 254.2(a)(1) required the notice set forth the person or persons responsible for the alleged violation, the location of the alleged violation, and the date or dates of such violation. As to the notice requirements under RCRA and CWA, LP urged the Court to adopt the flexible standards of the 2nd and 3rd Circuits. Instead, the District Court chose to follow District Courts in N.Y., California, and Ohio in finding that "It [the notice] is not specific, however, in stating when the sludge was deposited there, and uses the passive voice in asserting 'A portion of the residual fibers (Paper Sludge) from recycled carbonless copy paper from this period contained PCBs and were deposited in an area known as "the rendering plant" in the City of Moraine[,]' leaving Defendant to guess who might have done this and when. Such notice is insufficient." These two causes of action were then dismissed without prejudice; upon giving of adequate notice, LP is permitted to seek to amend its complaint to add a RCRA and CWA cause of action to the complaint.
Although there is no doubt that a notice needs to cover all the various requirements set forth in the CFR's, there are certainly circumstances in which what is known in terms of the chronology of events is limited. To become overly formalistic about the level of detail to be set forth under such circumstances defeats the purpose of the laws, which is to remediate contaminated soils, groundwater, and surface waters. Plaintiffs should be required to be diligent in seeking factual information to support the requirements of the CFR's, but if due diligence produces little, then holding the putative plaintiff to some unknowable level of factual pleading makes no sense whatsoever.