Turner, Tiffany

English

University of Denver

Water Law Review Volume 3 Issue 1 Article 15 9-1-1999 Burnette v. Carothers, Nos. 98-7835(L), 98-9003(CON), 1999 WL 710624 (2d Cir. Sept. 13, 1999) Tiffany Turner Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Tiffany Turner, Court Report, Burnette v. Carothers, Nos. 98-7835(L), 98-9003(CON), 1999 WL 710624 (2d Cir. Sept. 13, 1999), 3 U. Denv. Water L. Rev. 126 (1999). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSFEDERAL COURTSUNITED STATES CIRCUIT COURTSSECOND CIRCUITBurnette v. Carothers, Nos. 98-7835(L), 98-9003(CON), 1999 WL710624 (2d Cir. Sept. 13, 1999) (holding homeowners' suit forinjunctive and monetary relief under the CWA, RCRA, and CERCLAcitizen suit provisions brought against state officers in their officialcapacity was barred for lack of subject matter jurisdiction due toEleventh Amendment sovereign immunity).The Burnettes filed suit against various state officers in theirofficial capacities claiming the Connecticut Correctional Institute("CCI") had emanated toxic substances onto their property thatpolluted and continued to pollute their wells in violation of the CleanWater Act ("CWA"); the Resource Conservation and Recovery Act("RCRA"); and the Comprehensive Environmental Response,Compensation, and Liability Act ("CERCLA"). The Burnettes soughtan injunction, monetary relief, and reimbursement for past and futureresponse costs.At the trial court, the state officers successfully argued that the casewas barred for lack of subject matter jurisdiction under the sovereignimmunity clause of the Eleventh Amendment of the United StatesConstitution. The court granted the state officers' motion forsummary judgment on the claims for response costs because recoverywould violate the state's sovereign immunity. The Burnettes appealed.The Second Circuit Court of Appeals affirmed based oncongressional intent explicitly stated in each of the statutes underwhich the Burnettes sued, acknowledging that citizen suits againstgovernmental entities were allowed only to the extent pennitted by theEleventh Amendment.The court rejected the Burnettes' argument that the caserepresented qui tam action, brought by the Burnettes on behalf of theUnited States, and held that citizen suit provisions granted citizens theright to sue on their own behalf, not on behalf of the United States.Next, the Burnettes argued that the claims for prospective reliefwere valid under Ex Parte Young. The court waived this claim becauseCOURT REPORTSthe Burnettes had not raised the claim in the original case, and nomiscarriage ofjustice resulted by not recognizing the exception.Through summary judgment, the court denied both claims thatsought response costs. The court denied the CERCLA § 113(f) claim,because the provision was only available to parties potentiallyresponsible for contribution costs which the Burnettes were not. Thecourt also denied the CERCLA § 107(a) claim, because althoughCongress did express its intention that the Eleventh Amendmentwould not bar a suit under the section, Congress did not have validpower to abrogate the Eleventh Amendment. The United StatesSupreme Court ruled Congress acted within its authority when itabrogated the Eleventh Amendment only once; the Court ruledCongress could abrogate the Eleventh Amendment only whenenacting legislation under § 5 of the Fourteenth Amendment.CERCLA, enacted under the Commerce Clause, did not fall into thiscategory.The court also ruled Connecticut did not constructively waive itsEleventh Amendment sovereign immunity by engaging in an activityregulated by Congress or by accepting federal funds.Tiffany TurnerUnited States v. TGR Corp., 171 F.3d 762 (2d Cir. 1999) (finding thatbrook where defendant discharged waste slurry from asbestos removalproject qualified as "waters of the United States" under the CleanWater Act).Employees of the defendant, TGR Corp. ("TGR"), performedasbestos removal services for a Connecticut middle school. In theprocess, the employees poured a waste slurry (comprised of mastic,chemical mastic remover, water, and pieces of floor tile that containedasbestos) into a drain in the school basement. From the drain, theslurry traveled into a storm water discharge system, and then into awaterway known as "Grasmere Brook."The government charged TGR with knowingly discharging apollutant into the waters of the United States without a permit inviolation of 33 U.S.C. §§ 1311, 1319(c)(2), and 18 U.S.C. § 2; andknowingly disposing and storing of a hazardous waste without a permitin violation of 42 U.S.C. § 6928(d) (2) (A) and 18 U.S.C. §2. The courtdismissed the latter two violations. The parties entered into astipulation agreement and the only issue remaining concernedwhether Grasmere Brook qualified as part of the "waters of UnitedStates" under the Clean Water Act ("CWA").The district court held that Grasmere Brook was a tributary of AshCreek, a navigable water of the United States, and therefore fell underthe CWA. The court ordered TGR to pay a fine of $50,000 and remainon probation for five years. TGR appealed.Issue I

Burnette v. Carothers, Nos. 98-7835(L), 98-9003(CON), 1999 WL 710624 (2d Cir. Sept. 13, 1999)

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Burnette v. Carothers, Nos. 98-7835(L), 98-9003(CON), 1999 WL 710624 (2d Cir. Sept. 13, 1999)

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