Am International, Inc. v. Datacard Corporation, Dbs, Inc., Addressograph Farrington, Inc.

1342 drop-ceiling to the floor below.

tеrboard and plank that he used the as He contended INTERNATIONAL, INC., AM on the furnace support while he worked Plaintiff-Appellant, conditioning court found that air unit. The v. far from the unit to be a was too plank working. he was It was a support while CORPORATION, DBS, Inc., DATACARD and was not covered under the pathway mere Addressograph Farrington, Inc., Act. Defendants-Appellees. through a hole in one worker fell Another He, too, floor, landing on the floor below. No. 96-1621. using pathway, not a was found to be staging platform or This temporary scaffold. Appeals, United States Court of not, found, court the kind of hazard Seventh Circuit. activity protected ous the Act. Miller v. Co., Ill.App.3d Archer-Daniels-Midland 4, Argued Sept. 1996. (1994). 872, 754, N.E.2d 199 Ill.Dec. Feb. Decidеd recently, performing More a worker asbes entering a tos removal fell when he was work through a decontamination unit.

area shower plat stepping

He was down from the shower slipped

form when he and fell. He contend handrail,

ed that there should have been a that, high,

that the were too risers obvi

ously, steps got wet from the shower.

Again the court looked to the intended use of case,

the structure. In this it was a walk

way, providing ingress egress to the

work site. Steuri v. Prudential Insurance

Co., Ill.App.3d 218 Ill.Dec. (1996).

N.E.2d 1066 point, Village

Even closer on Ralls v. The Heights, Ill.App.3d Glendale (1992), Ill.Dec. 598 N.E.2d 337 involved testing leaky pipes. worker who was injured

He slipped when he on a snow-

covered earthen incline which was used to

reach the area to which he needed access.

He also contended that a handrail should provided

have Relying been on the indine. Vuletich, rejected the court the claim. agree

We with the district court that the

ditch, Cooper crossing which and into fell, unfortunately he was a of a

pathway to the construction site. It was not meaning

a structure within the of the Struc-

tural Work Act. The decision of the district is, therefore,

AFFIRMED. Saielli, Barry (argued), Roberta

chael E. M. Kissel, Gardner, Doug- Carton & Richard J. las, IL, Plaintiff-Appellant. Chicago, Costello, Nehs, John W. W. Scott Wild- man, Dixon, IL, Harrold, Chicago, Allen & (argued), B. Andrew Michael J. Wahoske Brown, Dorsey Whitney, Minneapolis, & MN, Defendants-Appellees. RIPPLE, WOOD, DIANE P. Before EVANS, Judges. Circuit EVANS, Judge. Circuit nearly years, AM For International (AMI) spilled hazardous at an in- chemicals Holmesville, dustrial in This case site Ohio. subsequent purchas- a involves the claims of site, arising of Datacard Corporation, er the cleanup. of out the site’s Before the district court, liability argued AMI that its had been bankruptcy. in discharged The court disa- costs, greed response and awarded Datacard injunction requiring perform an AMI to cleanup, attorney explain As we’ll and fees. below, response affirm the award of costs injunction, but reverse the award of and the First, the facts. fees. to 1981 ÁMI housed two of its From 1959 divisions, Multigraphics Addressográph, and part of the site at the Holmesville site. On Multigraphics operated a “tank farm.” The ranging tanks in ca- farm consisted of nine 6,000 8,000 pacity gallons. from to Multi- to mix graphics used the tanks tetrachloroe- (TTE) naphtha produce to thylene with “Blankrola,” mix- cleaning solvent. When chemicals, Multigraphics’ ing employees they little. spilled a Sometimes sometimes example, an em- spilled lot. In exactly Proper didn’t live ployee named Ron Instead, Proper Mr. failed up to his name. valve, misstep properly close a gallons of Blankrola allowed thousands pour ground. onto the site and In 1981 AMI sold the November DBS, company called Addressográph to a Multigraphics to con- to allow Inc. In order Holmesville, producing Blankrola tinue however, ownership Meites, Rosenbloom, AMI retained B. Lewis S. Jerome grounds back McDermott, the tank farm tanks and leased Cyrluk, Will & Jonathan M. Watson, Addressográph, IL, AMI sold Mi- from DBS. When Emery, Chicago, John W. departure employees, including Ron district court was a substantial many AMI’s Sensing jumped ship signed precedent. on with from established AMI Proper, later, April merely trying years DBS. Five months fine tune over chapter reorganization discovery, request. petitioned for court denied the Code, Bankruptcy of the with the Illinois case almost 6 District of Illinois. seq., in the Northern et years pending, old and still AMI found itself bankruptcy, During back in troubled financial waters and once September AMI continued confirmed petitioned reorganization in again bank- naphtha, and Blank- spill—TTE, to mix—and ruptcy, this time Delaware. In an effort finally ‍‌‌​​​​‌​‌​‌‌​​​​​​​‌​‌‌​​​‌‌​‌​​​‌‌​​‌‌​​‌​​​‌​​‍put lid May rola. claims, liquidate the Delaware operations. farm on its tank stay bankruptcy court lifted automatic later, gave green light for the Illinois case year Datacard entered the About a and, go 3-day trial buy to trial. After bench picture. planned DBS brief, post-trial requesting diligence, an filed its that Data- as of its due conducted card’s disallowed environmental audit the Holmesville site. 502(e)(1)(B) Bankruptcy of the Code. The The audit turned soil contamination and a brief, portion district court struck that layer of Blankrola at least inches thick finding floating groundwater. that the Delaware court retained ex- Despite find, jurisdiction clusive on the allowance of claims purchasе, Datacard went ahead with the and that AMI waived figuring good recovering it had a shot at the affirmative defense its cleanup failing it cleanup costs from AMI and that the disallowance raise before— $350,000—small during—the or even trial. change run about would in comparison to the million it shell- $52 September In 1994 the district court en- ing buy out to DBS. and, judgment tered for Datacard with a few changes, adopted proposed minor purchase, completing

After Datacard findings Spe- of fact and of law. conclusions syphoned groundwa- the Blankrola off of the cifically, AMI, Ohio, the court found: Datacard’s claims gave ter and and State discharged; had not been Datacard enti- planned EPA notice that it for sue its costs, fees, response attorney tled to its injunction response ordering costs and an CERCLA; interest under Datacard was enti- up AMI to its clean own mess. After receiv- any notice, tled to contribution from for ing future this AMI raced back to the feder- judgments against entered Datacard for re- al courthouse for the Northern District of costs; sponse and Datacard was sought entitled to judgment declaring Illinois and that injunction requiring perform both an AMI to discharged Datacard’s claims had been any cleanup turn, future and an award of bankruptcy. In Datacard filed counter- fees on its AMI, RCRA and CERCLA citizen suit against requesting damages claims. injunctive Comprehensive relief under thе Response, Compensation, Environmental We review the district court’s find (CERCLA), Liability Act § 42 U.S.C. 9601 et ings of fact for clear legal error and its seq., the Resource Conservation and Recov- conclusions de novo. Maher v. Harris Trust (RCRA), ery § Act séq., U.S.C. 6901 et Bank, (7th Cir.1996). & Sav. 75 F.3d 1182 and state common law. In the district However, apply clearly we will erroneous granted summary judgment for AMI standard with a little more bite where a on the state law claims but denied it on the adopted party’s findings district court has Among CERCLA and RCRA claims. other fact verbatim. Andre v. Bendix

things, genuine the court found that a issue (7th Cir.1985). F.2d of material fact existed as to whether DBS give sufficient information to argues rise to a AMI first the district claim bankruptcy before AMI’s in allowing directly court erred Datacard to was confirmed in 1984. AMI pursue response cried foul and costs under CERCLA 9607(a)(4)(B). reopen discovery, arguing 107(a)(4)(B), § moved to § the “suf- 42 applied by ficient information” standard Only parties, says, innocent can sue 107(a)(4)(B). limited, I, Chicago § Datacard In peti- Milwaukee Road asserts, reorganization tioned for to a claim for contribution un- under the bank- 113(f). ruptcy years act in 1977. Two later one of disagree. In der We Akzo Coat- Tacoma, its trains crashed (7th Washington, ings, Aigner Corp., Inc. v. 30 F.3d 761 spilling large copper amounts of ore and Cir.1994), recovery disputes we held that cost arsenic. In 1984 Washington Depart- potentially responsible parties between two (DOT) Transportation ment of purchаsed the ordinarily as claims should be addressed crash site bankruptcy from the trustee. 113(f). However, contribution under June Washington Department 1985 the liability solely noted if a landowner faces Energy checked the soil at the site and sent party spilled because a third or allowed haz- Transportation the folks at a letter which migrate property, ardous waste to onto its said the site needed to up. be cleaned may directly the landowner sue for its re- DOT then took samples its own soil and in case, sponse costs. Id. this Data- November confirming received results presumably paid card it less for DBS because Despite contamination. having direct knowl- buying expensive it was knew into аn clean- edge of the contamination at least a month up. While have rendered Datacard before Milwaukee Road’s December the. a little less “innocent” than the landowner 1985, bankruptcy date, court bar the DOT Akzo, described in Datacard did not take didn’t file a claim until 1989. We affirmed in the manufacture of Blahkrola. In- the district court’s discharge decision to stead, party Datacard—like a forced to clean claim, reasoning, DOT’s discharge pur- property contamination on its to a due poses, a claim arises when the party’s spill—faces liability merely third due claimant bankruptcy can “tie the debtor to a to its status as landowner. As a known release of a hazardous substance qualifies exception under Akzo’s potential which this claimant knows will lead directly pursue response and can costs response to CERCLA costs.” 974 F.2d at 107(a)(4)(B). II, In Chicago again affirmed the dis- challenges AMI next the district charge of CERCLA claims filed after the finding court’s that neither Datacard’s Milwaukee Road’s bar date. 3 F.3d 200. In discharged nor CERCLA RCRA claims were December 1980 the Union Pacific Railroad bankruptcy. We have considered when a purchased piece property within the discharge pur CERCLA claim arises railyard Milwaukee Road’s Tacoma from the poses Milwaukee, Chicago, before. In re See railyard trustee. The was located within a R.R., (7th St. P. & Pac. 974 F.2d 775 Cir. well-publicized site, Superfund which had 1992) I); (Chicago Chicago, In re Milwau even earned the being dubious distinction of kee, R.R., (7th St. P. & Pac. 3 F.3d 200 dubbed one of the “ten worst” sites on the Cir.1993) II). (Chicago Although both Chi priorities EPA’s national list. Before the cago discharge I & II involved the of CERC- confirmed, bankruptcy was the EPA also now-repealed LA claims under Bankrupt site, launched a investigation massive 1898, cy reasoning Act of our was not limited study and a detailing state-commissioned I, Bankruptcy to Chicago Act cases. See problems published. ‍‌‌​​​​‌​‌​‌‌​​​​​​​‌​‌‌​​​‌‌​‌​​​‌‌​​‌‌​​‌​​​‌​​‍Finally, site’s be- (explaining F.2d at 781 Act both the sale, engineers fore the Union Pacific’s own dischargeable broadly). code define claims inspected railyard. engineers The no- Group See also Ninth Ave. Remedial v. Al grease ground oil ticed and found (N.D.Ind. lis-Chalmers 195 B.R. 716 fueling soil near an old area saturated with 1996) (applying Chicago I & II to claim engineers passed diesel fuel. The word arising Code); Bankruptcy under the In re memo, findings company their to in a officials Jensen, (9th Cir.1993) 925, 995 F.2d which concluded that contamination at the case). (adopting Chicago from test I in a code railyard large “covers a area and re- To determine whether Datacard’s CERCLA quire clean-up.” extensive Id. at 203. De- then, discharged, information, were claims we need to spite this Pacific Union didn’t quick Chicago start with a look at I & II. file a- claim before the bar date. We found existed, finding factual that DBS the district court’s information had Union that sufficient to tie AMI did not have sufficient information out, Pacific at give to Union sought it Pacific contamination before AMI’s pos- to environmental knowledge that it constructive least clearly bankruptcy was not was confirmed during claim the bank- sessed a CERCLA follows, then, It that the district erroneous. ruptcy. Id. at 207. court’s conclusion that Datacard’s hand, gist Turning to case discharged not an had not been claims ignorance argument DBS’s AMI’s of discretion. abuse bliss. Datacard’s should not be the district court’s We also affirm discharged, claims should conclusion that Datacard’s RCRA claims sur any attempt made to says, had DBS because bankruptcy. vived AMI’s The district out, have DBS would information seek the to an order found that Datacard was entitled claim to file a CERCLA known it needed directing up clean the site under confirmed. bankruptcy was before the 1982 6972. Whether a RCRA U.S.C. had constructive that DBS cleanup discharged bankrupt order can be knowledge of environmental contamination cy depends order can be source, on whether the a news on an indirect like not based monetary obligation. Only into a converted study, but from a source report or a state “right orders which can be turned into employees. Af- to home: DBS’s own closer dischargeable payment” considered are all, employees previ- many of had ter DBS’s bankruptcy purposes. 11 “claims” for and not knew of ously for AMI worked 101(5)(A). Elecs., also In re Torwico According to spills had caused them. but (3d Cir.1993) Inc., (cleanup 8 F.3d 146 order AMI, merely through its had DBS read em- dischargea-ble), entered after bar date was not files, example, DBS would have ployment denied, rt. 114 S.Ct. U.S. relating Mr. warning notice discovered ce (1994); 128 L.Ed.2d 219 In re CMC spill would realized Proper’s 1971 have (7th Partners, Heartland 966 F.2d 1143 Cir. claim be- that it needed to file CERCLA 1992) (order requiring landowner to clean bankruptcy was confirmed. fore AMI’s contamination ran with the land and was not attempt equate the data available AMI’s Kovacs, dischargeable); v. Ohio cf. the information available to DBS with (1985) 105 S.Ct. L.Ed.2d fly. Chicago Pacific in II doesn’t Un- Union (order right payment converted into II, Chicago like in there been no visible is, discharged bankruptcy). question contamination, testing, signs no soil no then, can Datacard convert the district involvement, publicized spills at EPA and no right payment? a court’s order into The fact, before Data- the Holmesville site. question Meghrig to that is no. answer card came on the scene in not even — W., Inc., -, v. RFC U.S. 116 S.Ct. liability. it faced realized (1996) (RCRA 1251, 134 L.Ed.2d 121 does reported AMI had never a release to the up party not allow a to clean site and sue for EPA, compli- and AMI’s own environmental response seeking injunc in an costs lieu occurred, thought mishaps ance officer when tion). result, aAs we affirm the district spilled onto concrete and chemiсals court’s decision Datacard’s RCRA quickly evaporated. At trial AMI even ar- discharged bankruptcy. in claims were not gued money spent syphon- Datacard that the shortly ing groundwater argues off of AMI next that even if Data- Blankrola discharged, buying site was not recoverable card’s claims were not the dis money spent response because the was not in trict court should not have left AMI on the attorney to a known or threatened release of hazard- hook for fees connected with Data- 107(a)(4)(B) Finally, warning response § ous substances. notice card’s CERCLA cost award, Proper’s flag support in not of its Mr. work file was the red action. district Corp. would have notice court cited Amcast Indus. v. Detrex us believe. The (N.D.Ind.1992), merely large F.Supp. product mentions a loss and 822 545 rev’d (7th tip spill—and grounds, doesn’t Datacard off that a not in on other 2 F.3d 746 result, Cir.1993), denied, mixing 114 a error—was to blame. As a cert. 510 U.S.

1349 7002(a), 6972(a) (1994), § § 42 (conferring L.Ed.2d 658 U.S.C. S.Ct. standing “any person”); response costs included reasonable held that 9659(a) 310(a), (same). However, § § Key in attorney Tronic U.S.C. As a ‍‌‌​​​​‌​‌​‌‌​​​​​​​‌​‌‌​​​‌‌​‌​​​‌‌​​‌‌​​‌​​​‌​​‍fees. States, 809, 114 we find that Corp. proper Datacard is a v. United (1994), plaintiff. citizen suit L.Ed.2d 797 a case S.Ct. (but actually by the district court in the cited Having failed to knock out all three citizen

wrong place), Supreme Court held that punch, suit claims with one AMI next takes a attorney generally qualify as fees did not divide-and-conquer approaсh. Before we ad- Court, § The response costs under 107. challenges dress AMI’s individual to each of however, exception a carved out narrow suits, however, the citizen a word to Data- attorney pursuing litiga- fees not incurred card’s claims RCRA is order. Datacard 820, 114 The tion. Id. at S.Ct. under both RCRA only attorney paid reasoned fees Court 7002(a)(1)(A) (a)(1)(B). § Subsection identifying potentially responsi- like services (a)(1)(A) against any authorizes citizen suits response parties qualified as costs be- ble party alleged any regula- to be in violation types “might those of tasks well be cause tion which has become effective under chemists, performed by engineers, pri- [or] (a)(1)(A) RCRA. Unlike its subsection coun- investigаtors.” vate Id. (a)(1)(B) terpart, require subsection not does plaintiff point a specific to a violation of a award of fees The district court’s Instead, regulation. subsection au- § cannot Datacard’s attor- under stand. against any person thorizes citizen ney nonlitigation attorney suits who fees—even storage disposal has contributed to the or Key excep- fall Tronic’s fees—do not under may present solid or hazardous waste which The record shows that Datacard’s tion. endangerment an “imminent and substantial nonlitigation attorney fees were racked to health or the investigating legal responsi- environment.” Datacard’s own EPA, dealing bilities in with the Ohio not ability pursue The a claim under either identifying polluters. This not other delay subsection is limited the notice and by engi- been done work which could have 7002(b). requirements § bringing Before chemists; it work done with an neers or (a)(1)(A) claim, plaintiff a subsection a must eye going toward after AMI. EPA, provide notice of the claim to the located, facility state which the is and the arguments AMI’s next set of take aim Then, alleged plaintiff violator. must at Datacard’s citizen suit claims under sub delay commencement of the suit for at least (a)(1)(A) (a)(1)(B) of sections RCRA 6972(b)(1)(A). § days. 42 U.S.C. Similar- 310(a) CERCLA, § U.S.C. ly, 90-day delay period notice and is re- 9659(a). First, targets the claims as quired before citizen suit filed group, arguing proper is not a (a)(1)(B). subsection plaintiff. that Da- citizen suit AMI contends 6972(b)(2)(A). delay purpose tacard, responsible party potentially First, period allows the EPA an twofold. CERCLA, acting public not in the inter opportunity off at the to head citizen suits est, merely pinned a few citizen suit but compelling pass and assume the lead role in injunctive claims for relief its cost recov compliance through with RCRA administra- attempt ery action as a veiled to recover proceedings. Hallstrom v. Tillamook tive otherwise unavailable fees. While 20, 29, 304, 310, County, 110 493 S.Ct. U.S. agree with AMI that the idea behind we (1989). Second, delay L.Ed.2d suit enforcement is to unleash an citizen period gives alleged opportu- an violator army private attorneys general of to force act, voluntarily comply nity up its to clean feet, cleanups government drags its when RCRA, litigation. avoid Id. with and plain language and of RCRA apply every delay periods do not parties does not exclude like Datacard from Instead, potential plaintiffs. citizen suit filed under RCRA the class of citizen suit Act, Rather, Congress and allow the 1984 amendments to both RCRA exception of “any bring out an to each RCRA’s person” to citizen suits. RCRA carved cannot be the complaint and when of the amended Congress reasoned delay provisions. City Heath v. regulations injunctive relief. waste basis hazardous of violations of Inc., Oil, greater F.Supp. harm 978-79 threat of alleged, the Ashland have been 1993) (federаl by (S.D.Ohio posed regulations a do not environment and the to health Ohio). (a)(1)(A) allowing the claim in outweighs support the benefits of a delay subsection follows, then, judgment the lead role for Data- opportunity to assume that the EPA an It (a)(1)(A) to avoid a chance claim cannot alleged violator and the card on its subsection citizen, acting a a when litigation. As stand. a claim attorney general, alleges private as a argues that Datacard was next AMI subchapter III” of “respecting a violation injunction to an based its not entitled dealing Act with of the RCRA—the section suit, citizen the subsection other RCRA management—the suit waste hazardous (a)(1)(B) proper a AMI admits it is claim. immеdiately giving no- after commenced be (a)(1)(B) but contends target for an claim 6972(b)(1)(A) (b)(2)(A). & tice. 42 U.S.C. delay properly failed to its suit that Datacard 26-27, Hallstrom, 493 U.S. at also days giving notice. Datacard for 90 Congress (noting that “abro- at 308-10 S.Ct. January gave 1987. AMI fired notice on delay requirement ... when gate[d] the declaratory judgment. back with a suit for waste will danger that hazardous there is days before RCRA’s April On discharged”). 90-day delay period expired, Datacard filed mind, background in With that (a)(1)(B) citizen suit as Rule its subsection challenges to Datacard’s turn to AMI’s complaint. to AMI’s 13 counterclaim alleges AMI first citizen suit claims. RCRA that Datacard The district court concluded not entitled to relief on its that Datacard is delay provision complied had with RCRA’s subsection citizen suit complaint ways: Datacard amended its three (a)(1)(A) (a)(1)(A). Datacard’s subsection delay period expired; AMI had after the spills repeated of AMI’s claim arises out delay require- protection of the waived the tetrachloroethylene, a covered chemical by seeking declaratory judgment; ment regulations. Spe hazardous RCRA’s waste April 1986 letter to the Ohio and Datacard’s cifically, alleged that delay ticking clock EPA started the 262.34, prohib which violation of C.F.R. period. Sensing problems with each of the generators accumulating hazardous its from explanations, Datacard now district court’s days, than 90 as well аs 40

wastes for more (a)(1)(B) argues that its subsection claim falls 264, 265, parts provide C.F.R. 90-day delay exception to the within operating permit requirements rules and disposal period storage because the treatment, storage, for hazardous waste response, hazardous waste is issue. disposal facilities. contends be alleging specific asserts EPA-approved cause Ohio administers an subchapter III hazard- violations of RCRA’s program, hazardous waste Datacard was re regulations, merely ous waste and not those (a)(1)(A) quired to base its subsection claim waste, “involving” qualify hazardous regulation. on a violation of an Ohio language exception. AMI is correct. RCRA allows each [11,12] agree that Data- promulgate its own hazardous waste We with AMI state action, pro If cause of program. 42 U.S.C. a state card’s subsection authorization, alone, appear gram standing EPA stan does -not to constitute receives supersede regulations. Dague respecting dards federal a claim a violation RCRA’s (2d City Burlington, management regulations. v. 935 F.2d 1343 hazardous waste However, Cir.1991), grounds, that determination does not end rev’d in on other 505 Rather, inquiry. that Data- 112 120 L.Ed.2d 449 our we note U.S. S.Ct. (1992). claim, program formally ap the subsection Ohio’s card’s other RCRA (1996). (a)(1)(A) suit, alleged specific a RCRA haz- proved in 40 C.F.R. 270.1800 result, violation, Datacard was regulation As a the federal cited ardous waste and bring delay. Datacard was ineffective in at the time entitled to that claim without Ohio

1351 complaint Because Datacard’s contained both postpone forced to either the hazardous subject delay a citizen suit claim to RCRA’s claim—a Congress waste claim that stated period delay and one immune from re- could be delay—or without file the quirement, dealing we are with what other hazardous claim immediately waste and seek “hybrid” complaint. have a courts labeled permission to amend complaint their to in- See, 1351; e.g., Dague, 935 F.2d at Glazer v. clude the other RCRA claim after delay Ecology American Envtl. Servs. 894 period expired. Id. at 1351-52. (E.D.Tex.1995); F.Supp. Orange

Env’t, County Orange, Inc. v. F.Supp. We find the Second reasoning Circuit’s (S.D.N.Y.1994). 1021 n. 17 Although Dague persuasive hold that Datacard we have concluded that the district court required was not days to wait 90 filing before allowing prevail erred Datacard to on its hybrid complaint. its reaching that con- (a)(1)(A) claim, subsection party whether a clusion, we note that allowing hy- Datacard’s complied has delay with RCRA’s notice complaint brid to fall exception within the provisions is determined at the time the com- delay RCRA’s provisions notice and will not plaint Hallstrom, is filed. See Congress’ undermine either of reasons for 304; Dague, 110 S.Ct. 935 F.2d at 1353. As requiring First, delay. it would make little a the fact that Datacard' was not keep sense to a of opportunity open window ultimately еntitled to relief on its citizen suit the EPA step in and take the lead role (a)(1)(A) subsection bearing has no on one of Datacard’s claims when Datacard (a)(1)(A) whether Datacard’s subsection alle- already given has authority been to immedi- gations keep are sufficient to hy- Datacard’s ately sue AMI for violations of RCRA’s haz- complaint 1352-53; brid in court. Id. at management ardous waste regulations. Sec- F.Supp. Orange, only at n. 17. The ond, delay period is, then, designed is question hybrid did Datacard’s com- allow party plaint pull period like AMI a its subsection in which to claim with- clean exception 90-day waiting to RCRA’s act litigation. and avoid clearly period? not interested in using delay period disputе resolve the going without to court. A hy number courts held that have fact, AMI is argue able to that Data- complaint bring brid plaintiffs does all of a delay card failed to exception.’" require- citizen suit claims within observe RCRA’s Dague, 1352; Glazer, 935 F.2d at responded ment because AMI to Datacard’s 1044; at F.Supp. Orange, F.Supp. notice declaratory with a suit for a judgment. example, 1021 n. 17. For Dague, the Finally, it important although note that neighbors municipal of a city landfill sued the (a)(1)(A) subsection hazardous 7002(a)(1)(A) under both RCRA ultimately unsuccessful, claim proved waste it (a)(1)(B) only day giving notice. 935 not frivolous. question There was no (a)(1)(A) F.2d at 1348-49. The subsection had released hazardous waste. alleged claim of a violation federal hazard simply claim based the ous management waste regulation and was wrong regulations—an set of error that not delay requirements. immune from RCRA’s reply even AMI noticed until it filed its brief. (a)(1)(B) claim, The subsection on the other plaintiffs If future attempt should an end run hand, alleged city’s disposal of solid as delay requirements around by alleg- RCRA’s well as hazardous waste had created an im ing a meritless hazardous waste claim in a endangerment minent and substantial to the hybrid complaint, the district court could subject environment and was to RCRA’s de plaintiffs sanction the under Rule 11 and lay period. The Second Circuit held that the dismiss the compliance ease ensure full plaintiffs did delay not need to observe the delay period. with the Because Datacard’s period applicable otherwise to the subsection frivolous, hazardous waste claim was not (a)(1)(B) claim. Id. at 1352. The court rea however, delay provi- we find that hybrid if RCRA’s complaint soned that did not trigger exception apply hybrid the' sion did not delay period, to the to Datacard’s com- plaintiffs impermissibly follows, then, would have plaint. been It the district court reasoning that the Delaware injunctive ‍‌‌​​​​‌​‌​‌‌​​​​​​​‌​‌‌​​​‌‌​‌​​​‌‌​​‌‌​​‌​​​‌​​‍argument, relief Datacard granted

properly jurisdic- bankruptcy court retained exclusive claim.1 its subsection on claims, and that tion over the allowance that Although have concluded we jurisdiction, AMI if hаd even the court granted Datacard properly court the district by failing defense to waived the affirmative citizen one of its RCRA on injunctive relief raise it earlier. attorney fees re claims, issue of suit juris- lacked find that the district court allows a district We RCRA mains. Because to hear this claim. Because plain suit diction prevailing citizen court to award give to not have “sufficient information” the court deter did “whenever attorney fees tiff bankrupt- Illinois rise to a claim the 1982 appropriate,” is we an award such mines applies only cy, disallowance defense attorney for an AMI’s fees an award of review case, bankruptcy. The Dela- to the 1993 Delaware In this the distriсt of discretion. abuse lifting sentence, stated, bankruptcy court’s order in one that ware simply Datacard the attorney stay gave case AMI and fees under Datacard was entitled 6972(e). light litigate their Illinois claims. 7002(e), green § Be § 42 U.S.C. RCRA party any provided also that neither not note The order court did cause the district award, any judgment in the could execute obtained we are unable justification for the from the Dela- appro Illinois case without an order the district court determine whether result, Additionally, in both bankruptcy court. discretion. As a ware priately exercised its reorganization confirming order AMI’s portion of the case to the its we this remand itself, plan bank- plan and the the Delaware explanation. for further district court it ruptcy court stated that retained “exclusive contends that the district AMI next objec- jurisdiction” any and all to “determine reopen by denying request court erred plain tions to the allowance Claims.” discovery. regulation of discov Because the plan language of the order and the couldn’t judge, trial ery is best left to the matters bankruptcy court authorized be clearer. The judge and able like especially a seasoned liability the Illinois district court to settle here, cautiously Judge Norgle we tread when authority the sole on issues but remained reviewing like this. See Carson v. claims bankruptcy issues as the allowance of such (7th Bethlehem 82 F.3d Steel claims. As a when Datacard returns Cir.1996). Chicago I Because was not decid judgment in this to Delaware to execute the case, discovery until closed in this ed case, AMI can its disallowance defense raise adoption claims that of that test in that forum. discovery. triggered the need for more merely opinion today means that the bulk of Judge Norgle reasoned that AMI was Our attempting discovery—which judgment the district court’s is Affirmed. A to fine-tune its judgment Reversed, years—and portion denied the small had lasted over request. agree portion and an even smaller is REMANDED Because we AMI’s dis explanation. covery always timing the district court for further To focused cоntamination, summarize, everything judgment spills, the extent of the ex- knew, they cept knew the award of fees—-under party what each when 7002(a)(1)(B) it, § say judge his and on we can’t abused discre the RCRA denying request. liability finding injunc- tion AMI’s claims—and the 7002(a)(1)(A) § tion under RCRA is Af- point appeal final is that AMI’s firmed. The case is Remanded to the dis- the district court should have considered dis proceedings trict court for further consistent allowing opinion. with this 502(e)(1)(B) Bankruptcy Code. argument post- defendants-ap- this in its are awarded first raised Costs pellees. trial The district court struck the brief. basis for the

1. Because we find that Datacard was entitled to need not address the additional injunctive injunction, the district court Datacard’s citizen suit relief ordered claim, 7002(a)(1)(B) 310(a). based on its RCRA RIPPLE, Judge, concurring. Circuit from commencing their action for at least days. equities do weigh not in fully judgment I concur in the of the court favor modifying statutory of requirements join pleased compre- and am to the court’s procedural when the by default is caused thoughtful opinion. sep- hensive and I write petitioners’ “failure to take the minimal only arately emphasize to that we do not steps necessary” preserve to their claims. waiting provision decide 90-day whether the 6972(b)(2)(A) § in 42 ap- contained U.S.C. (citation at 493 U.S. 110 S.Ct. at 309 plies compulsory to counterclaims omitted). petitioners Unlike the in Hallst- 13(a) under Rule of the Federal Rules of rom, Datacard did not “have full control Although Procedure. assumed Civil have suit”; over timing the of [its] it did not have arguendo period that waiting applies the to luxury the to refrain filing from suit within claims, holding ought such our not be under- days Instead, of notice. timing the of deciding stood as sub silentio. issue largely Datacard’s suit mercy at the of difficulty This case demonstrates the in AMI and the Federal Rules of Civil Proce- “ 90-day waiting applying requirement to dure. Datacard took the ‘minimal steps filing compulsory counterclaims. In necessary’ preserve claim” by [its] initial- ease, properly gave this notice of ly giving notice. It was the initiation of ad- intent to response sue for costs an versarial proceedings by AMI that com- AMI, injunction. in response, immediately pelled Datacard to initiate RCRA citizen commenced a declaratory judgment action. 90-day suit before the period expired. had answer, point, At that Datacard filed its as addition, the plain language required by the Federal Rules Civil Proce- 6972(b)(2)(A) § can be read to exclude com- dure, 90-day waiting period before the pulsory 6972(b)(2)(A) counterclaims. Section expired. Datacard had to assert the RCRA 42 provides of Title that may “[n]o action in that answer. See Fed.R.Civ.P. commenced under subsection of this 13(a). tempted say One is that AMI prior ninety days section plain- after the right 90-day “waived” its insist given has notice of the endangerment.” tiff waiting period by filing declaratоry judg- 6972(b)(2)(A) added).1 § 42 U.S.C. (emphasis theory, however, ment action. The “waiver” n 3 of Rule the Federal Rules Civil Proce- carry day cannot because of Hallstrom v. provides plaintiff dure that a “commences” County, Tillamook 110 S.Ct. by “filing an action complaint with the (1989). 304, 107 L.Ed.2d 237 RCRA’s notice plausible court.” Fed.R.CivJ?. 3. A reading provisions “jurisdictional” are in nature. Id. 6972(b)(2)(A) §of is that Datacard was not 31,110 S.Ct. at 311-12. required comply 90-day waiting with the Although waiver, Hallstrom forecloses period because it did not “commence” a decision interpretation does not foreclose an plaintiff RCRA action as a within the mean- 6972(b)(2)(A) §of compulsory that excludes 6972(b).2 ing §of interpretation This not 90-day counterclaims from waiting re- support finds plain the statute’s lan- quirement. holding delay that RCRA’s Hallstrom, guage seeming- but it also requirements mandatory pre- are conditions ly jurisdictional harmonizes the nature of the commencing cedent to suit under the RCRA policies with the underlying statute the law provision, suit Supreme citizen Court of waiver. noted: Nevertheless, [Petitioners full have over the tim- I control that the court believe has ing they of their suit: only give prudent need basing no- taken the more course not appropriate parties tice to the and refrain interpretation its decision on this terms, 6972(b)(1)(A) much; § 6972(a) 1. In like § contains a 60- too that term is as well used day waiting period, applies 6972(b). to actions 6972(a) § § as in One difference is that (a)(1)(A). commenced under subsection provides person” “any commence 6972(b)(1)(A). suit, 6972(b), citizen whereas which sets forth delay requirements, the notice and refers "the course, placing emphasis Of undue plaintiff." meaning prove of the term "commence” would 6972(b)(2)(A). not been The issue has Additionally, one parties. briefed apply to the section does held that has Portsmouth counterclaims.

compulsory Housing Auth. v. BMI

Redevelopment & Assocs., F.Supp.

Apartments

(E.D.Va.1994). recognized the That court EPA, notifying the the State

importance covered persons other 6972(b)(2)(A)(iii) contami- of environmental Redevelopment The Portsmouth

nation. party in that a

court reasoned inform the court “obligated to

predicament counterclaim] so file [to its intentions ease-management provi- appropriate delayed

sions, for the including provision ‍‌‌​​​​‌​‌​‌‌​​​​​​​‌​‌‌​​​‌‌​‌​​​‌‌​​‌‌​​‌​​​‌​​‍..., necessary, c[an if

filing counter-claims pretrial in the order.” inserted

be]

F.Supp. at 386. made arguments that have been

Given the us, ground for decision is the court’s

before with, although compatible not

adequate and

compelled by, Circuit’s decision the Second Burlington, 935 F.2d 1343

Dague City v. (2d Cir.1991), grounds, part on other rev’d in 2638, 120 557, 112 L.Ed.2d 449 S.Ct.

(1992). practical quandary of counter- judicial legisla further or will need

claimants in the future.

tive elaboration America,

UNITED STATES

Plaintiff-Appellee,

v. OVERSTREET, Garner,

Leonard Glen E. Warren, L. Defendants-

and Dominic

Appellants. 96-2479, and 96-2567.

Nos. 96-2480 Appeals,

United States Court of

Seventh Circuit.

Argued Dec. 1996.

Decided Feb.

Case Details

Case Name: Am International, Inc. v. Datacard Corporation, Dbs, Inc., Addressograph Farrington, Inc.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 11, 1997

Citation: 106 F.3d 1342

Docket Number: 96-1621

Court Abbreviation: 7th Cir.