Conservation Law Foundation, Inc. v. Shell Oil Company et al
Filing
111
RULING. For the reasons stated in the attached Ruling, defendants' #50 Motion to Dismiss Amended Complaint is GRANTED, in part, and DENIED, in part. It is so ordered. Signed by Judge Sarah A. L. Merriam on 9/16/2022. (Katz, S.)
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 1 of 62
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
CONSERVATION LAW
:
FOUNDATION, INC.
:
:
v.
:
:
SHELL OIL COMPANY, et al.
:
:
------------------------------x
Civ. No. 3:21CV00933(SALM)
September 16, 2022
RULING ON MOTION TO DISMISS [Doc. #50]
Plaintiff Conservation Law Foundation, Inc. (“plaintiff” or
“CLF”) brings this citizen enforcement action pursuant to the
Clean Water Act and the Resource Conservation and Recovery Act.
See Doc. #47. Plaintiff proceeds pursuant to an Amended
Complaint, asserting fourteen counts against defendants Shell
Oil Company, Equilon Enterprises LLC d/b/a Shell Oil Products
US, Shell Petroleum Inc., Triton Terminaling LLC, and Motiva
Enterprises LLC (collectively “defendants”). See generally Doc.
#47.1 Plaintiff seeks declaratory and injunctive relief, as well
as the imposition of civil penalties to “remedy” defendants’
alleged violations of federal law, including:
(1) Shell’s past and ongoing failures to comply with
Connecticut Industrial Stormwater Permit ... and the
Clean Water Act; (2) the Shell facility’s location in a
Throughout this Ruling, the Court cites to the page numbers
reflected in each document’s ECF header, rather than the
pagination applied by the filing party.
1
1
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 2 of 62
floodplain and improperly managed susceptibility to
washout of solid waste, which poses a hazard to human
life, wildlife, and land and water resources; (3)
Shell’s past and present contribution to handling,
storage, treatment, transportation, or disposal of solid
and hazardous wastes, which may present an imminent and
substantial endangerment to health or the environment in
violation of RCRA; and (4) Shell’s failure to operate
and maintain its facility to minimize the possibility of
a fire, explosion, or any unplanned release of hazardous
waste or hazardous waste constituents to air, soil, or
surface water which could threaten human health or the
environment.
Doc. #47 at 1-2, ¶1. Plaintiff alleges that the above-described
“violations of federal law have occurred and are occurring at
Shell’s New Haven Terminal, formerly the Motiva Enterprises LLC
New Haven Terminal, a bulk storage and fuel terminal[.]” Id. at
2, ¶2.
Defendants have filed a motion seeking to dismiss most of
the Amended Complaint, along with a supporting memorandum. See
Docs. #50, #50-1. Defendants seek dismissal of “all Causes of
Action in the Complaint[]” as to defendants Shell Oil Company,
Shell Petroleum, Inc., and Motiva Enterprises LLC. Doc. #50 at 1
(sic). Defendants also seek dismissal of “Causes of Action 1-9
and 12-14” as to defendants Equilon Enterprises LLC d/b/a Shell
Oil Products US and Triton Terminaling LLC. Id. Plaintiff has
2
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 3 of 62
filed an opposition to defendants’ motion to dismiss, see Doc.
#53, to which defendants have filed a reply. See Doc. #59. 2
For the reasons stated below, defendants’ Motion to Dismiss
[Doc. #50] is GRANTED, in part, and DENIED, in part.
I.
FACTUAL BACKGROUND
For purposes of deciding the motion to dismiss, the Court
presumes the following factual allegations made in the Amended
Complaint [Doc. #47] to be true.
The allegations of the Amended Complaint focus on “a bulk
storage and fuel terminal located at” the Port of New Haven,
Connecticut (hereinafter the “Terminal”), id. at 2, ¶2, which
“Defendants own and operate[.]” Id. at 14, ¶67; see also id. at
21, ¶106. The Port of New Haven sits on the banks of the New
Haven Harbor and “is the highest volume commercial shipping port
on the Long Island Sound[.]” Id. at 33, ¶¶170-71 (citation and
quotation marks omitted). “[P]etroleum products arrive at the
Terminal dock by tanker ship[,]” and are transferred to
aboveground storage tanks. Id. at 21-22, ¶113. Due to the
impacts of climate change, the Port of New Haven “is at
Defendants filed two reply briefs, which appear to be identical
in form and substance. See Docs. #58, #59. For ease of
reference, the Court cites only to the second filed brief, Doc.
#59.
2
3
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 4 of 62
substantial risk of flooding from severe weather events.” Id. at
34, ¶173.
The Terminal is operated “pursuant to the General Permit
for Discharge of Stormwater Associated with Industrial Activity
issued by” the Connecticut Department of Energy and
Environmental Protection (the “Permit”). Doc. #47 at 35, ¶175.
The Permit “applies to stormwater discharges from industrial
activity at any facility that registers for coverage under the”
Permit. Id. at 35, ¶178 (citation and quotation marks omitted).
“The Permit requires Shell to implement ‘Control Measures’ to
guard against the risks of pollutant discharges in the
stormwater.” Id. at 38, ¶192; see also id. at 38-41, ¶¶193-200
(describing the control measures required under the Permit).
“The Permit requires the permittee to develop a Stormwater
Pollution Prevention Plan, or SWPPP[.]” Id. at 41, ¶201; see
also id. at 41-43, ¶¶202-07 (describing the elements required to
be included in the SWPPP).
The Permit requires that the SWPPP be amended within 120
days of certain events, including: (A) when there is a
change at the site which has an effect on the potential
to cause pollution of the surface waters of the state
and (F) when necessary to address any significant
sources or potential sources of pollution identified as
a result of any inspection of visual monitoring.
Id. at 43, ¶208 (citation and quotation marks omitted).
4
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 5 of 62
The Terminal is also regulated under the Resource
Conservation and Recovery Act as a “Small Quantity Generator” of
hazardous waste. Id. at 28, ¶144; see also id. at 28, ¶143. “The
soil and groundwater within the Terminal are contaminated[,]”
because of “various chemical spills [that] have occurred on the
site since at least the 1970s.” Id. at 29, ¶¶148-49. Remediation
activities continue to the present day. See id. at 29, ¶150.
“Plaintiff ... is a ... nonprofit, member-supported
organization dedicated to the conservation and protection of New
England’s public health, environment, and natural resources.”
Doc. #47 at 3, ¶9. Plaintiff “has long worked to protect the
health of New England’s waterways, including addressing the
significant water quality impacts of industrial and stormwater
pollution.” Id. Plaintiff’s “members live near, recreate on, and
regularly visit the area and waters near Shell’s Terminal[.] ...
[Plaintiff’s] members use and enjoy these waters for
recreational and aesthetic purposes, including, but not limited
to boating, swimming, fishing, observing wildlife, and
sightseeing; they intend to continue to engage in these
activities in the future.” Id. at 4, ¶10.
Plaintiff names five defendants and describes their
corporate relationships at length in the Amended Complaint. See
generally Doc. #47 at 5-14. Non-party Shell plc “is a holding
5
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 6 of 62
company and the ultimate parent company of a number of separate
companies, engaged in the oil and gas business around the world,
often referred to as the Shell group.” Id. at 5, ¶17. Defendant
Shell Petroleum, Inc., is a holding company with no employees
and “is the ultimate United States parent of Shell group
entities that conduct exploration and production, trading,
refining, marketing, and retail operations in the United
States.” Id. at 6, ¶19; see also id. at 6, ¶21.
Defendant “Shell Oil Company is wholly owned by Shell
Petroleum, Inc. and is an indirect subsidiary of Shell plc.” Id.
at 6, ¶23. “Shell Oil Company is Shell plc’s primary operating
subsidiary in the United States[]” and “has the power to direct
or cause the direction of the management or policies of
Defendant Equilon Enterprises LLC and Defendant Triton
Terminaling, LLC.” Id. at 6, ¶¶24-25.
Defendant Equilon Enterprises LLC (“Equilon”) is an
indirect subsidiary of Shell Oil Company and Shell plc doing
business as “Shell Business Products US.” Id. at 6, ¶¶26-27.
Equilon holds the Permit and is an operator of the Terminal. See
id. at 7, ¶¶28-29. Defendant Triton Terminaling LLC (“Triton”)
is also an indirect subsidiary of Shell Oil Company and Shell
plc. See id. at 7, ¶30. Triton became an owner of the Terminal
6
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 7 of 62
in 2017, and is also an operator of the Terminal. See id. at 7,
¶¶31-32.
Defendant Motiva Enterprises LLC (“Motiva”) owned the
Terminal between 2000 and 2017. See id. at 7, ¶34. “Motiva was
formed in 1988 as a joint venture between Shell Oil Company,
Texaco Inc., and the Saudi Arabian Oil Company. In 2002, Shell
Oil Company took over Texaco’s interest in Motiva. In 2017,
Motiva was dissolved and Shell maintained control over its
assets in the Northeastern region of the United States,
including ownership of the Terminal.” Id. at 7, ¶¶35-36.
“Shell plc sets climate change policies and strategies for
the entire Shell group of companies[,]” including “policies for
managing and mitigating climate risks to facilities owned by
companies in the Shell group.” Doc. #47 at 8-9, ¶¶42-43.
“Compliance with Shell’s climate change policies and strategies
is mandatory for each Defendant.” Id. at 10, ¶51. “Shell plc
holds Shell Oil Company accountable for ensuring Shell Oil
Company’s subsidiaries implement Shell’s climate change policies
and strategies. Shell Oil Company exercises control over Triton
and Equilon to ensure implementation of Shell plc’s climate
change policies and strategies.” Id. at 11, ¶¶55-56; see also
id. at 12-13, ¶¶60-66 (describing the “Control Framework that
specifies the standards for health, safety, security,
7
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 8 of 62
environment and social performance ... and the scope for
applying these standards for all entities in the Shell
group[]”).
Plaintiff asserts the following causes of action against
all defendants: (1) Violation of the Clean Water Act – Failure
to Eliminate Non-Stormwater Discharges; (2) Violation of the
Clean Water Act – Activity Inconsistent with the Coastal
Management Act and Causing Adverse Impacts to Coastal Resources;
(3) Violation of the Clean Water Act – Unlawful Certification of
SWPPP; (4) Violation of the Clean Water Act – Failure to
Identify Potential Pollution Sources; (5) Violation of the Clean
Water Act – Failure to Describe and Implement Practices to
Reduce Pollutants and Ensure Permit Compliance; (6) Violation of
the Clean Water Act – Failure to Implement Measures to Manage
Runoff; (7) Violation of the Clean Water Act – Failure to
Minimize the Potential for Leaks and Spills; (8) Violation of
the Clean Water Act – Failure to Submit Required Facts or
Information to Connecticut Department of Energy and
Environmental Protection; (9) Violation of the Clean Water Act –
Failure to Amend or Update the SWPPP; (10) Violation of the
Clean Water Act – Failure to Identify Discharges to Impaired
Waters in SWPPP; (11) Violation of the Clean Water Act – Failure
to Conduct Monitoring for Discharges to Impaired Waters; (12)
8
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 9 of 62
Violation of the Resource Conservation and Recovery Act – Open
Dumping; (13) Violation of the Resource Conservation and
Recovery Act – Imminent and Substantial Endangerment to Human
Health and the Environment; and (14) Violation of the Resource
Conservation and Recovery Act – Failure to Comply with State and
Federal RCRA Regulations Applicable to Generators of Hazardous
Wastes. See Doc. #47 at 78-98. 3
II.
LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation and quotation marks omitted);
accord Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842, 854
(2d Cir. 2021). In reviewing such a motion, the Court “must
accept as true all nonconclusory factual allegations in the
complaint and draw all reasonable inferences in the Plaintiffs’
favor.” Kaplan, 999 F.3d at 854 (citations omitted).
“[W]hile this plausibility pleading standard is forgiving,
it is not toothless. It does not require [the Court] to credit
legal conclusions couched as factual allegations or naked
assertions devoid of further factual enhancement.” Mandala v.
Counts 1-9 and 12-14 are hereinafter collectively referred to
as the “Adaptation Claims.”
3
9
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 10 of 62
NTT Data, Inc., 975 F.3d 202, 207 (2d Cir. 2020) (citation and
quotation marks omitted). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause
of action will not do.” Iqbal, 556 U.S. at 678 (citations and
quotation marks omitted).
“In considering a motion to dismiss for failure to state a
claim pursuant to Rule 12(b)(6), a district court may consider
the facts alleged in the complaint, documents attached to the
complaint as exhibits, and documents incorporated by reference
in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,
111 (2d Cir. 2010).
“The standards of review for a motion to dismiss under
Rule 12(b)(1) for lack of subject matter jurisdiction and
under 12(b)(6) for failure to state a claim are substantively
identical.” Feldheim v. Fin. Recovery Servs., Inc., 257 F. Supp.
3d 361, 365 (S.D.N.Y. 2017) (citation and quotation mark
omitted). “A case is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000); Fed. R. Civ. P. 12(b)(1). “However, on a Rule 12(b)(1)
motion, the party who invokes the Court’s jurisdiction bears the
burden of proof to demonstrate that subject matter jurisdiction
10
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 11 of 62
exists, whereas the movant bears the burden of proof on a motion
to dismiss under Rule 12(b)(6). This allocation of the burden of
proof is the only substantive difference between the standards
of review under these two rules.” Feldheim, 257 F. Supp. 3d at
365–66 (citations and quotation marks omitted); see also
Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008) (“The court must take all facts alleged in the
complaint as true and draw all reasonable inferences in favor of
plaintiff, but jurisdiction must be shown affirmatively, and
that showing is not made by drawing from the pleadings
inferences favorable to the party asserting it.” (citation and
quotation marks omitted)), aff’d, 561 U.S. 247 (2010). “[A]
motion under Rule 12(b)(1) may ... rely on evidence beyond the
pleadings. When a defendant makes such a fact-based motion, the
plaintiff may respond with evidence of its own.” SM Kids, LLC v.
Google LLC, 963 F.3d 206, 210 (2d Cir. 2020) (citation omitted).
III. STATUTORY FRAMEWORK
Before discussing the specific arguments raised in the
Motion to Dismiss, the Court briefly summarizes the relevant
statutory framework.
A.
The Clean Water Act
The Clean Water Act (“CWA”) “prohibits the discharge of any
pollutant by any person unless done in compliance with some
11
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 12 of 62
provision of the Act.” Catskill Mountains Chapter of Trout
Unlimited, Inc. v. Env’t Prot. Agency, 846 F.3d 492, 502 (2d
Cir. 2017) (citation and quotation marks omitted). The CWA
“provides for the issuance, by the Administrator of the
Environmental Protection Agency (EPA) or by authorized States,
of National Pollutant Discharge Elimination System (NPDES)
permits.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 174 (2000). “With narrow exceptions
not relevant here, a party must acquire an NPDES permit in order
to discharge a specified amount of a specified pollutant[]” into
navigable waters. Trout Unlimited, 846 F.3d at 502. “[E]very
NPDES permit is statutorily required to set forth, at the very
least, effluent limitations, that is, certain restrictions on
the quantities, rates, and concentrations of chemical, physical,
biological, and other constituents which are discharged from
point sources into navigable waters.” Waterkeeper All., Inc. v.
U.S. E.P.A., 399 F.3d 486, 491 (2d Cir. 2005) (citation and
quotation marks omitted). The “limitations on the discharge of
pollutants,” and the “related monitoring and reporting
requirements[]” seek to “improve the cleanliness and safety of
the Nation’s waters.” Friends of the Earth, 528 U.S. at 174.
“Noncompliance with a permit constitutes a violation of the”
CWA. Id.
12
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 13 of 62
Reflecting “cooperative federalism in the management of the
nation’s water sources[,] ... states typically control
the NPDES permitting programs as they apply to waters within
their borders, subject to EPA approval.” Trout Unlimited, 846
F.3d at 502 (citations and quotation marks omitted). “In
Connecticut, the department [of Energy and Environmental
Protection] is responsible for issuing both federal and state
discharge permits[,]” including NPDES permits. Burton v. Comm’r
of Env’t Prot., 970 A.2d 640, 645 n.4 (Conn. 2009); see also
Conn. Gen. Stat. §§22a-416, et seq. (governing “Water Pollution
Control”).
The CWA “allows ‘citizens’ to bring civil enforcement
actions seeking penalties or equitable relief ‘against any
person alleged to be in violation of the conditions of either a
federal or state NPDES permit.’” Borough of Upper Saddle River,
N.J. v. Rockland Cnty. Sewer Dist. #1, 16 F. Supp. 3d 294, 301
(S.D.N.Y. 2014) (quoting 33 U.S.C. §1365(a)).
B.
The Resource Conservation and Recovery Act
The Resource Conservation and Recovery Act (“RCRA”) “is a
comprehensive environmental statute that governs the treatment,
storage, and disposal of solid and hazardous waste.” Meghrig v.
KFC W., Inc., 516 U.S. 479, 483 (1996). The “primary purpose” of
RCRA “is to reduce the generation of hazardous waste and to
13
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 14 of 62
ensure the proper treatment, storage, and disposal of that waste
... so as to minimize the present and future threat to human
health and the environment.” Id. (citation and quotation marks
omitted). RCRA also “contains a citizen-suit provision which
permits private citizens to enforce its provisions.” Brooklyn
Union Gas Co. v. Exxon Mobil Corp., 478 F. Supp. 3d 417, 426
(E.D.N.Y. 2020) (citation and quotation marks omitted).
IV.
DISCUSSION
A.
Failure to Comply with the Local Rules
At the outset of its brief, plaintiff asserts that the
Court should deny defendants’ motion “because their Memorandum
violates the maximum page limit set by the Local Rules.” Doc.
#53 at 12. “In the alternative[,]” plaintiff requests that the
Court “decline to consider Defendants’ abstention argument,
which appears almost exclusively on the excess pages.” Id. at
12-13.
Defendants have filed a Notice conceding that their
memorandum in support of the motion to dismiss inadvertently
fails to comply with Local Rule 10. See Doc. #54 at 1. To remedy
this, defendants have agreed, “[s]ubject to the Court’s
approval[,]” to “strike their abstention argument from their
motion to dismiss, which comprises the over-length portion of
the brief.” Id. at 2.
14
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 15 of 62
The Court will not deny defendants’ motion for its failure
to comply with the Local Rules. However, the Court GRANTS, on
consent, the request to strike defendants’ abstention argument.
See Doc. #53 at 12-13; Doc. #54 at 2. The Court will not
consider defendants’ abstention argument, 4 and turns next to the
threshold issue of standing.
B.
Standing
“Article III of the Constitution limits the jurisdiction of
federal courts to ‘Cases’ and ‘Controversies.’” Silva v.
Farrish, --- 4th ---, No. 21-0616, 2022 WL 3650689, at *5 (2d
Cir. Aug. 25, 2022) (quoting U.S. Const. art. III, §2). “As a
threshold inquiry, a federal court must determine that the
plaintiff has constitutional Article III standing prior to
determining ... the subsequent merits of the case.” McCrory v.
Adm’r of Fed. Emergency Mgmt. Agency of U.S. Dep’t of Homeland
Sec., 600 F. App’x 807, 808 (2d Cir. 2015).
Defendants contend that plaintiff lacks standing to bring
the Adaptation Claims because “[t]hese claims are based only on
CLF’s members’ fears of a future injury.” Doc. #50-1 at 24.
Defendants assert that: (1) plaintiff’s alleged injury-in-fact
Although the Court does not consider this argument, a review of
the relevant case law reflects that other courts have largely
rejected similar abstention arguments.
4
15
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 16 of 62
is not certainly impending; (2) the allegations of the Amended
Complaint do not show a serious likelihood that harm will occur
as required for standing to seek civil penalties; and (3)
plaintiff’s alleged injury-in-fact is not traceable to the
actions of defendants. See id. at 26-30. Plaintiff contends that
it has adequately alleged an injury-in-fact. See Doc. #53 at 1318.5 In reply, defendants reassert that plaintiff has not
adequately alleged an injury-in-fact that is imminent or
traceable. See Doc. #59 at 9-11.
1.
Applicable Law
“Although we generally accept the truth of a plaintiff’s
allegations at the motion to dismiss stage, the plaintiff still
bears the burden of alleging facts that affirmatively and
plausibly suggest that the plaintiff has standing to sue.”
Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 75 (2d Cir. 2022)
(citation and quotation marks omitted). “Where, as here, a case
is at the pleading stage, the plaintiff must clearly allege
facts demonstrating each of the elements that make up the
irreducible constitutional minimum of standing.” Fac. v. N.Y.
Plaintiff has opted to address only “the injury-in-fact prong
of the standing test ... because Defendants’ challenge to CLF’s
standing is based exclusively on that prong[,]” and defendants’
other standing arguments are “wholly derivative of their injuryin-fact argument.” Doc. #53 at 13 n.4.
5
16
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 17 of 62
Univ., 11 F.4th 68, 74 (2d Cir. 2021) (footnote and quotation
marks omitted), cert. denied sub nom. Fac., Alumni, & Students
Opposed to Racial Preferences v. N.Y. Univ., No. 21-1046, 2022
WL 2111369 (U.S. June 13, 2022).
“[T]o establish standing, a plaintiff must show (i) that
[it] suffered an injury in fact that is concrete,
particularized, and actual or imminent; (ii) that the injury was
likely caused by the defendant; and (iii) that the injury would
likely be redressed by judicial relief.” TransUnion LLC v.
Ramirez, 141 S. Ct. 2190, 2203 (2021). 6
An injury in fact must be particularized, and it must be
concrete. Particularized injuries affect the plaintiff
in a personal and individual way. Concrete injuries are
“physical, monetary, or cognizable intangible harms
traditionally recognized as providing a basis for a
lawsuit in American courts.
Harty v. W. Point Realty, Inc., 28 F.4th 435, 442-43 (2d Cir.
2022) (citations and quotation marks omitted).
Defendants do not contest organizational standing. The Court
therefore does not address that issue. See Friends of the Earth,
528 U.S. at 181 (“An association has standing to bring suit on
behalf of its members when its members would otherwise have
standing to sue in their own right, the interests at stake are
germane to the organization’s purpose, and neither the claim
asserted nor the relief requested requires the participation of
individual members in the lawsuit.”).
6
17
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 18 of 62
2.
Analysis
a.
Imminence
Defendants assert that plaintiff’s “claimed injury to
aesthetic and recreational uses of waterways” does not describe
an injury that is certainly impending. Doc. #50-1 at 26.
Plaintiff responds that it “has sufficiently alleged that the
risks of severe weather to – and the resultant pollutant
discharges from – the Terminal are both ‘substantial’ and
‘certainly impending.’” Doc. #53 at 14.
[T]he Supreme Court has made clear that “allegations of
possible future injury” or even an “objectively
reasonable likelihood” of future injury are insufficient
to confer standing. Clapper v. Amnesty Int’l USA, 568
U.S. 398, 409–10 (2013) (internal quotation marks,
alterations, and emphasis omitted). Rather, a future
injury constitutes an Article III injury in fact only
“if the threatened injury is certainly impending, or
there is a substantial risk that the harm will
occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149,
158 (2014) (internal quotation marks omitted).
McMorris v. Carlos Lopez & Assocs., LLC, 995 F.3d 295, 300 (2d
Cir. 2021); see also Calcano, 36 F.4th at 74 (“A plaintiff
pursuing injunctive relief may not rely solely on past injury,
but also must establish that she is likely to be harmed again in
the future in a similar way. Such threatened injury must
be certainly impending to constitute injury in fact, and
18
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 19 of 62
allegations of possible future injury are not sufficient.”
(citation and quotations marks omitted) (emphases in original)). 7
The Supreme Court in TransUnion v. Ramirez, 141 S. Ct. 2190
(2021), recently “established that in suits for damages
plaintiffs cannot establish Article III standing by relying
entirely on a statutory violation or risk of future harm[.]”
Maddox v. Bank of N.Y. Mellon Tr. Co., N.A., 19 F.4th 58, 64 (2d
Cir. 2021); see also Cons. L. Found., Inc. v. ExxonMobil Corp.,
579 F. Supp. 3d 119, 121 (D. Mass. 2021) (“CLF I”) (“The Supreme
Court held that, with regard to a suit for damages, the mere
risk of future harm is not enough to establish standing.”).
TransUnion, however, does not seem to have materially
altered standing jurisprudence for parties seeking injunctive
relief. Rather, the Supreme Court again “recognized[]” that “a
person exposed to a risk of future harm may pursue forwardlooking, injunctive relief to prevent the harm from occurring,
at least so long as the risk of harm is sufficiently imminent
and substantial.” TransUnion, 141 S. Ct. at 2210. The TransUnion
decision therefore appears to recognize the fundamental
“It is well established that a plaintiff must demonstrate
Article III standing for each type of relief she or he seeks.”
Garthwait v. Eversource Energy Co., No. 3:20CV00902(JCH), 2022
WL 1657469, at *4 (D. Conn. May 25, 2022). Plaintiff seeks
declaratory and injunctive relief, as well as the imposition of
civil penalties. See Doc. #47 at 99.
7
19
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 20 of 62
differences between damages and injunctive or other deterrent
relief. See id. (“[A] plaintiff’s standing to seek injunctive
relief does not necessarily mean that the plaintiff has standing
to seek retrospective damages.”).
Defendants categorize the risks alleged in the Amended
Complaint as those stemming from “possible future weather
risks[,]” including: “(1) flooding due to storms and storm
surge; (2) flooding due to sea level rise; (3) flooding due to
increasing sea temperatures; and, (4) severe precipitation[.]”
Doc. #50-1 at 26 (citations to Amended Complaint omitted).
Defendants contend that none of these alleged risks are
“certainly impending.” Id. (citation and quotation marks
omitted). The allegations of the Amended Complaint, however,
plainly allege the near-term harms from foreseeable weather
events.
Plaintiff alleges: “Climate change and its associated
impacts are affecting New Haven now[,]” and New Haven “currently
experiences frequent flooding due to heavy rainfall and
increasingly severe hurricanes and winter storms.” Doc. #47 at
14, ¶68 (citation and quotation marks omitted). Although the
Amended Complaint cites to future projections of the impact of
climate change on New Haven, it also alleges “that the
acceleration of the negative impacts of climate change [such as
20
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 21 of 62
increased surface temperature in Long Island Sound and sea level
rise] is happening now and will only get more pronounced as each
year goes by.” Id. at 15, ¶72; see also id. at 48-49, ¶¶228-29
(“These changes, which exacerbate the risk of pollutant
discharges and/or releases from precipitation and/or flooding,
have already occurred, are continuing to occur, and are certain
to worsen over time.”). Plaintiff further alleges: (1) storm
surge is increasing in Connecticut; (2) the severity and
frequency of coastal flooding is increasing in Connecticut; and
(3) “The storm surge threat associated with nor’easters in New
England is steadily increasing due to sea level rise.” Id. at
51, ¶250; see also id. at 51 ¶¶245, 247, 249; id. at 52, ¶253
(“New Haven experiences frequent flooding due to heavy rainfall
and increasingly severe hurricanes and winter storms. Weatherrelated flooding is compounded by a high rate of sea level rise
of 2.5mm per year[.]” (citation and quotation marks omitted)).
Relatedly, plaintiff alleges that “[s]ea levels are rising in
Connecticut[,]” which has contributed to increased coastal
flooding as well as “pollutant discharges and/or releases from
the Terminal.” Doc. #47 at 56-57, ¶¶267, 273-74. Plaintiff
alleges that sea surface temperatures in New England are rising,
which causes more intense and more frequent storm events, which
“cause and contribute to pollutant discharges and/or releases
21
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 22 of 62
from the Terminal due to ... inadequate infrastructure design
and infrastructure failure.” Id. at 63, ¶298; see also id. at
62, ¶¶294-96. Plaintiff also alleges that “[t]he average annual
precipitation is increasing in Connecticut[,]” and that
“[s]evere or intense precipitation events have caused,
contributed to, and will continue to cause and contribute to
pollutant discharges and/or releases from the Terminal due to
... inadequate infrastructure design and infrastructure
failure.” Id. at 64, ¶¶305, 307.
As alleged in the Amended Complaint, these threatened
injuries are not purely theoretical. Plaintiff alleges that “the
Terminal is immediately adjacent to the New Haven Harbor, houses
multiple large petroleum storage tanks near sea-level, and has
suffered spills before[.]” Doc. #47 at 16, ¶74; see also id. at
54, ¶¶259-60. The Amended Complaint further alleges that “[t]he
Port is at substantial risk of flooding from severe weather
events[]” because it sits “partly within the 100-year floodplain
with a base level elevation equal to the costal inundation.” Id.
at 34, ¶173 (citation and quotation marks omitted); see also id.
22
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 23 of 62
at 37, ¶187 (“The Terminal is located within the delineated
coastal boundary in New Haven.”). 8
These allegations “make[] clear that a major weather event,
magnified by the effects of climate change, could happen at
virtually any time, resulting in the catastrophic release of
pollutants due to Defendants’ alleged failure to adapt the
Terminal to address those impending effects. While it might not
occur for many years, the fact that it is certainly impending is
enough to meet the standard.” Cons. L. Found., Inc. v. Shell Oil
Prod. US, No. 17CV00396(WES), 2020 WL 5775874, at *1 (D.R.I.
Sept. 28, 2020) (“CLF II”). Accordingly, at this stage, the
Amended Complaint sufficiently alleges that the alleged injuries
to plaintiff’s members are “certainly impending” and/or present
a “substantial risk.” See Garthwait, 2022 WL 1657469, at *4 (“To
demonstrate standing to seek prospective relief, a plaintiff
must show that they are likely to be subjected to future harm,
i.e., that a real or immediate threat of injury exists.”
(citations and quotation marks omitted)). 9
Plaintiff supports many of its allegations with citations to
various publications detailing the measurable effects of climate
change on the area of the Terminal.
8
Plaintiff may pursue its claims for prospective relief where
“the injury is certainly impending.” Clapper, 568 U.S. at 409
(citation and quotation marks omitted). Plaintiff represents
that it “is not alleging harm for risks in the far future – CLF
9
23
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 24 of 62
b.
Civil Penalties
Defendants contend that TransUnion “is fatal to CLF’s
claims for civil penalties[,]” because “[l]ike in TransUnion,
CLF’s allegations regarding the current risk amount to only mere
possibility.” Doc. #50-1 at 28. In sum, defendants “question
whether CLF’s Adaptation Claims satisfy the requirement for a
concrete and particularized injury in fact.” Id. (citation and
quotation marks omitted). Plaintiff responds that these
“arguments are meritless[,]” because “Transunion’s holding is
expressly limited to actions seeking damages, whereas CLF seeks
civil penalties[.]” Doc. #53 at 17 (sic). Plaintiff further
contends that its “members allege concrete injuries as a result
of Defendants’ conduct.” Id. at 18. In reply, defendants assert:
“Nowhere in TransUnion does the Court state that the holding is
limited to claims for damages[,]” and the standard set forth in
that decision “should apply to claims for civil penalties[.]”
Doc. #59 at 11 (footnote omitted).
alleges that the risk to the Terminal is present now and is
increasing over time. ... CLF cites certain future projections
to support the inference that risks are increasing.” Doc. #53 at
16. The allegations of the Amended Complaint, as discussed
above, support this representation. Plaintiff may not pursue its
claims to the extent those claims rely solely on possible future
injury. See id.; see also CLF II, 2020 WL 5775874, at *1.
24
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 25 of 62
The TransUnion decision itself, and the decisions of other
courts to have analyzed it, suggest that TransUnion is limited
to actions seeking damages. As the Second Circuit recently
stated: “TransUnion now makes clear that the ‘material risk’
standard applies only with respect to injunctive relief and
that ‘in a suit for damages[,] mere risk of future harm,
standing alone, cannot qualify as a concrete harm.’” Harty, 28
F.4th at 443 (quoting TransUnion, 141 S. Ct. at 2210-11). An
earlier Second Circuit case similarly noted: “In sum, TransUnion
established that in suits for damages plaintiffs cannot
establish Article III standing by relying entirely on a
statutory violation or risk of future harm[.]” Maddox, 19 F.4th
at 64 (emphasis added); see also CLF I, 578 F. Supp. 3d at 121
(“The Supreme Court held that, with regard to a suit for
damages, the mere risk of future harm is not enough to establish
standing.”).
There is no clear Supreme Court or Second Circuit guidance
on how TransUnion impacts the question of standing for claims
seeking civil penalties. Defendants, relying on CLF I, assert
that “[t]he same reasoning [set forth in TransUnion] applies to
a claim for civil penalties instead of damages.” Doc. #50-1 at
29 n.1. The Court does not agree. CLF I merely suggests that the
reasoning of TransUnion “with regard to standing claims for
25
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 26 of 62
damages may be equally applicable to claims for civil penalties
for future violations.” CLF I, 578 F. Supp. 3d at 121 (emphases
added). Regardless, defendants’ arguments ignore the fundamental
differences between damages and civil penalties, which are
meaningful to the question of standing.
Civil penalties are “designed in some measure to punish
culpable individuals, and not simply to extract compensation or
restore the status quo.” City of New York v. Milhelm Attea &
Bros., No. 06CV03620(CBA), 2012 WL 3579568, at *28 (E.D.N.Y.
Aug. 17, 2012) (citation and quotation marks omitted).
“Civil penalties also serve the purposes of encouraging
defendants to discontinue current violations and deterring them
from committing future ones.” Id. (citations and quotation marks
omitted). Accordingly, civil penalties are “[s]imilar to
permanent injunctions,” because they “are imposed to deter the
wrongdoer from similar conduct in the future[.]” Sec. & Exch.
Comm’n v. Blockvest, LLC, No. 18CV02287(GPB)(MSB), 2020 WL
7488067, at *5 (S.D. Cal. Dec. 15, 2020); see also Sec. & Exch.
Comm’n v. Vander Tuig, No. 2:21CV05381(MCS), 2022 WL 1518254, at
*4 (C.D. Cal. Apr. 19, 2022) (“Because civil penalties,
like injunctions, are intended to deter future violations,
courts often apply the same factors for determining whether
an injunction should issue to decide whether a civil penalty
26
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 27 of 62
should issue.”); Ctr. for Biological Diversity v. Univ. of N.C.
at Chapel Hill, No. 1:19CV01179(CCE), 2021 WL 3861388, at *7
(M.D.N.C. Aug. 30, 2021) (“Civil penalties, if awarded, would
redress injuries to the plaintiffs’ members by deterring future
violations.”), appeal dismissed, No. 21-2089, 2021 WL 7908071
(4th Cir. Nov. 23, 2021).
Additionally, the CWA “does not authorize civil penalties
separately from injunctive relief; rather, the two forms of
relief are referred to in the same subsection, even in the same
sentence.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Found., Inc., 484 U.S. 49, 58 (1987). Thus, “[t]he citizen suit
provision suggests a connection between injunctive relief and
civil penalties that is noticeably absent from the provision
authorizing agency enforcement.” Id. Given the similar purpose
served by civil penalties and prospective injunctive relief, the
Court is persuaded that post-TransUnion, the standing analysis
for claims seeking civil penalties should align with that
applicable to prospective injunctive relief, rather than that
applicable to damages.
Additionally, plaintiff has alleged that its members “use
and enjoy” the waters near the Terminal “for recreational and
aesthetic purposes,” and “are affected by, and concerned with,
pollutant discharges[.]” Doc. #47 at 4, ¶¶10, 13. “To establish
27
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 28 of 62
a concrete and particularized injury, harm that in fact affects
the recreational or even the mere aesthetic interests of the
plaintiff will suffice.” CLF II, 2020 WL 5775874, at *2
(citation and quotation marks omitted); see also Mancuso v.
Consol. Edison Co. of N.Y., 25 F. App’x 12, 13 (2d Cir. 2002)
(“The Supreme Court has held that environmental plaintiffs
adequately allege injury in fact when they aver that they use
the affected area and are persons for whom the aesthetic and
recreational values of the area will be lessened by the
challenged activity.” (citation and quotation marks omitted));
Brooklyn Union Gas Co., 478 F. Supp. 3d at 429 (“Courts have
also recognized aesthetic injuries as a basis for standing to
assert RCRA citizen suits.”). Accordingly, the Amended Complaint
adequately alleges facts to establish standing for plaintiff “to
seek penalties for violations that are ongoing at the time of
the complaint and that could continue into the future if
undeterred.” Friends of the Earth, 528 U.S. at 188 (footnote
omitted).
c.
Traceability
Last, defendants assert that plaintiff’s “Adaptation Claims
fail to satisfy the injury-in-fact and fairly traceable prongs
of standing because they rest on a speculative chain of
28
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 29 of 62
possibilities that largely lack any factual support.” Doc. #50-1
at 29.
“The traceability requirement for Article III standing
means that the plaintiff must demonstrate a causal nexus between
the defendant’s conduct and the injury.” Rothstein v. UBS AG,
708 F.3d 82, 91 (2d Cir. 2013) (citation and quotation marks
omitted). “The causal connection element of Article III
standing[] ... does not create an onerous standard. ... [I]t is
a standard lower than that of proximate causation. A defendant’s
conduct that injures a plaintiff but does so only indirectly,
after intervening conduct by another person, may suffice for
Article III standing.” Carter v. HealthPort Techs., LLC, 822
F.3d 47, 55–56 (2d Cir. 2016) (citation and quotation marks
omitted).
The alleged injuries to plaintiff’s members “flow[] from
the conduct [plaintiff] challenges: Defendants’ failure to
prepare the Terminal for the coming impacts of climate change.”
CLF II, 2020 WL 5775874, at *2. “At the pleading stage, general
factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss we presume that
general allegations embrace those specific facts that are
necessary to support the claim.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992) (citation and quotation marks omitted).
29
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 30 of 62
Plaintiff has alleged that the injury to its members is
attributable to the actions, or deliberate inaction, of
defendants. Accordingly, plaintiff has adequately alleged, at
this stage of the proceedings, that the injuries to its members
are fairly traceable to defendants. See Carter, 822 F.3d at 59
(“[A] plaintiff’s injury need not be ‘directly’ attributable to
a defendant in order to show the causation element of standing
to sue that defendant, so long as the injury is ‘fairly
traceable’ to that defendant.”).
Thus, for the reasons stated, plaintiff has adequately
alleged standing for claims arising from certainly impending or
near-term harms.
C.
Subject Matter Jurisdiction as to Motiva
Defendants assert that the Court lacks jurisdiction over
Motiva, the Terminal’s former owner and operator, because Motiva
is not alleged to be in violation of the Permit. See Doc. #50-1
at 23-24. Plaintiff responds, in relevant part, that “Motiva
should not be absolved from liability” because “there is a
connection between the current and former Terminal operators[.]”
Doc. #53 at 42. In reply, defendants assert that plaintiff
“ignores bedrock principles of corporate law[.]” Doc. #59 at 8.
30
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 31 of 62
1.
Claims Asserted Pursuant to the CWA
The Court begins with plaintiff’s claims asserted pursuant
to the CWA. The citizen suit provision of the CWA provides that
“any citizen may commence a civil action on his own behalf -against any person ... who is alleged to be in violation of (A)
an effluent standard or limitation under this chapter or (B) an
order issued by the Administrator or a State with respect to
such a standard or limitation[.]” 33 U.S.C. §1365(a)(1)
(emphases added).
This requires a citizen-plaintiff to “allege a state of
either continuous or intermittent violation — that is,
a reasonable likelihood that a past polluter will
continue to pollute in the future.” Gwaltney, 484 U.S.
at 57. To satisfy federal subject matter jurisdiction,
plaintiff’s allegations of continuing violation must be
made in “good faith.” Id. at 64.
Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d
1305, 1311 (2d Cir. 1993). “Good faith allegations [of a
continuing violation] ... will defeat a motion to dismiss on the
pleadings for lack of subject matter jurisdiction.” Id. at 1312.
“The critical time for determining whether there is an ongoing
violation is when the complaint was filed.” Id. at 1311.
Plaintiff alleges that Motiva “is a wholly owned subsidiary
of Saudi Refining Inc. and Aramco Financial Services Co.,” that
“operated the Terminal between 2000 and 2017.” Doc. #47 at 7,
¶¶33-34. “Motiva was formed in 1998 as a joint venture between
31
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 32 of 62
Shell Oil Company, Texaco Inc., and the Saudi Arabian Oil
Company. ... In 2002, Shell Oil Company took over Texaco’s
interest in Motiva.” Id. at 7, ¶35. “In 2017, Motiva was
dissolved and Shell maintained control over its assets in the
Northeastern region of the United States, including ownership of
the Terminal.” Id. at 7, ¶36. As part of the dissolution, Motiva
assigned its permits to Triton and Equilon. See id. at 8, ¶37.
Plaintiff argues in briefing that the Permit violations
that occurred under Motiva’s operation of the Terminal have been
occurring since 2016 and continued through 2020. See Doc. #53 at
41. Plaintiff cites to no allegations of the Amended Complaint
in support of this claim. Rather, the allegations of the Amended
Complaint explicitly state that Motiva ceased ownership and
operation of the Terminal, and transferred its permits in 2017.
See Doc. #47 at 7-8, ¶¶33-37. This supports the conclusion, or
at least the inference, that Motiva’s violations, for purposes
of the CWA, are “wholly past” notwithstanding any vague argument
that there remains a connection between Motiva and the current
owner/operators of the Terminal. 10
With no analysis, the court in CLF II declined to dismiss
Motiva from that action because “Motiva’s continued control is a
live issue.” CLF II, 2020 WL 5775874, at *4. Based on the
allegations of the Amended Complaint, and plaintiff’s scant
arguments on this point, Motiva’s continued control is not a
live issue here. See also Paolino v. JF Realty, No.
10
32
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 33 of 62
The decision in Friends of Sakonnet v. Dutra, 738 F. Supp.
623 (D.R.I. 1990), is persuasive on this question. There, the
Court considered “whether a person who has violated the Clean
Water Act may avoid liability by relinquishing ownership of the
polluting source although the violation continues.” Id. at 632.
Applying “the plain language of the citizens’ suit statute, 33
U.S.C. §1365(a)[,]” the Court found that prior owners of a
property which continued to be in violation of the CWA could not
be held liable under the CWA because they were “not presently
violating the Act.” Id. at 632-33 (footnote omitted); see also
id. at 636. The Court reasoned: “The phrase ‘any person ... who
is alleged to be in violation’ is clearly directed to a present
violation by the person against whom the citizen suit is
brought.” Id. at 632-33. The Court further explained,
persuasively, that “the notice requirement of §1365(b)(1)(A)
would serve little purpose in a suit against past owners of a
pollution source.” Id. at 633 (footnote omitted).
Other courts to have considered this issue have reached
similar conclusions. See, e.g., Brossman Sales, Inc. v.
Broderick, 808 F. Supp. 1209, 1214 (E.D. Pa. 1992) (“Since
12CV00039(ML), 2013 WL 3867376, at *4 (D.R.I. July 24, 2013)
(allowing suit to proceed against former owner where the former
owner potentially maintained control).
33
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 34 of 62
defendants in this case have relinquished ownership of the
source of the alleged violation and no longer have the control
to abate it, the statute is likewise inapplicable to them.”);
Daigle v. Cimarex Energy Co., 333 F. Supp. 3d 604, 613-14 (W.D.
La. 2018) (“[T]he CWA is inapplicable to impose liability upon”
a defendant where “the Complaint expressly acknowledges that
[defendant] ceased all operations at the Garth Well in 2009[;]
... has not done anything at the Garth Well at any time
since[;]” and “sold all of its interest in the Garth Well
effective May 2010.”); Black Warrior Riverkeeper, Inc. v.
Birmingham Airport Auth., No. 07CV00591(IPJ), 2008 WL 11377643,
at *2 (N.D. Ala. Mar. 3, 2008) (“Several district courts have
examined the issue of allowing past owners to be liable for
current violations. Each of those courts [has] found that a
wholly past owner or operator can have no liability for current
violations.”). Accordingly, because Motiva is not “alleged to be
in violation” of the CWA, all claims asserted pursuant to the
CWA against Motiva are DISMISSED.
2.
Claims Asserted Pursuant to RCRA
The analysis with respect to plaintiff’s claims asserted
pursuant to RCRA is somewhat different. The citizen suit
provision for RCRA provides in relevant part:
34
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 35 of 62
[A]ny person may commence a civil action on his own
behalf -- (1)(A) against any person ... who is alleged
to be in violation of any permit, standard, regulation,
condition, requirement, prohibition, or order which has
become effective pursuant to this chapter; or (B)
against any person ... including any past or present
generator, past or present transporter, or past or
present owner or operator of a treatment, storage, or
disposal facility, who has contributed or who is
contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or
hazardous waste which may present an imminent and
substantial endangerment to health or the environment[.]
42 U.S.C. §6972(a)(1). “Citizen suits under RCRA can be brought
only against persons engaged in RCRA violations that are
ongoing.” S. Rd. Assocs. v. Int’l Bus. Machines Corp., 216 F.3d
251, 252 (2d Cir. 2000). There is “no blanket requirement that
current action be alleged[]” as to each named defendant. Id. at
254. Rather, the Court is to “consider[] each allegation of
unlawful disposal and storage and test[] its sufficiency against
the wording of the statute[.]” Id.
Thus a defendant’s current activity at the site is not
a prerequisite for finding a current violation under 42
U.S.C. §6972(a)(1)(A). The inquiry required by Remington
Arms — the same inquiry required by §6972(a)(1)(A) — is
whether the defendant’s actions — past or present — cause
an ongoing violation of RCRA. That question turns on the
wording of the prohibition alleged.
Id. at 254-55.
Plaintiff asserts claims pursuant to RCRA for “open dumping
of waste in violation of RCRA [Count 12]; ... creation of an
imminent and substantial endangerment to health or the
35
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 36 of 62
environment in violation of RCRA [Count 13]; and ... failure to
comply with state and federal RCRA regulations applicable to
generators of hazardous wastes [Count 14].” Doc. #47 at 5, ¶16;
see also id. at 89-98 (capitalizations altered). Of the three
RCRA claims asserted, only Count 13 asserts a claim for imminent
and substantial endangerment to human health and the
environment. See id. at 93-94. Because section 42 U.S.C.
§6972(a)(1)(B) expressly contemplates that an action may be
brought against past or present owners who have contributed to
the ongoing violation, defendants’ motion to dismiss Motiva as
to Count 13 is DENIED. See Remington Arms, 989 F.2d at 1316 (“An
imminent hazard citizen suit will lie against any past or
present RCRA offender who has contributed or who is contributing
to past or present solid waste handling practices that may
present an imminent and substantial endangerment to health or
the environment. Therefore, under an imminent hazard citizen
suit, the endangerment must be ongoing, but the conduct that
created the endangerment need not be.” (citation and quotation
marks omitted)).
Count 12 asserts “violation of [RCRA] – open dumping[.]”
Doc. #47 at 89 (capitalizations altered). This claim appears to
be asserted pursuant to 42 U.S.C. §6945(a). See Doc. #47 at 19,
¶93. “Section 6945 of RCRA prohibits ‘any solid waste management
36
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 37 of 62
practice or disposal of solid waste or hazardous waste which
constitutes the open dumping of solid waste or hazardous waste.’
That section is enforceable through Section 6972 against
‘persons engaged in the act of open dumping.’” Chart v. Town of
Parma, No. 10CV06179(MWP), 2012 WL 3839241, at *9 (W.D.N.Y. Aug.
28, 2012) (quoting 42 U.S.C. §6945). “A historical act cannot
support a claim for violation of 42 U.S.C. §6945(a).” June v.
Town of Westfield, N.Y., 370 F.3d 255, 259 (2d Cir. 2004)
(citation and quotation marks omitted).
The Amended Complaint alleges that “the soil and ground
water at the Terminal ... contains high volumes of hazardous
waste.” Doc. #47 at 90, ¶468 (sic). The Amended Complaint
further alleges that “the Terminal has been subject to storm
surge inundation in the past in the containment areas.
Inundation by flood waters result in the washout and carrying
away of discarded petroleum products and other contaminants.”
Id. at 92, ¶¶477-78 (sic). Specifically, plaintiff alleges “that
the Terminal flooded during Tropical Storm Irene in 2011,
causing the Terminal to discharge several pollutants well beyond
Benchmark levels.” Id. at 54, ¶260. The allegations of the
Amended Complaint state that Motiva operated the Terminal at the
time of this flooding.
37
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 38 of 62
Plaintiff has not alleged that Motiva “was engaged in the
act of open dumping” at the time plaintiff filed the original
Complaint. Accordingly, plaintiff has not stated a cause of
action against Motiva as to Count 12. See June, 370 F.3d at 259
(dismissing RCRA open dumping claim where the “allegations were
of a purely historical act[]”); Chart, 2012 WL 3839241, at *10
(dismissing RCRA open dumping claim where plaintiff failed to
allege “that the [defendant] was engaged in the act of open
dumping at the time [plaintiff] filed his complaint[]” (footnote
and quotation marks omitted)); N. Cal. River Watch v. Fluor
Corp., No. 10CV05105(MEJ), 2014 WL 3385287, at *10 (N.D. Cal.
July 9, 2014) (“The fact that unremediated pollutants remain on
the Site is not sufficient to allege an ongoing violation of the
open dumping prohibition.”). Thus, Count 12 as to Motiva is
DISMISSED.11
Count 14 asserts “violation of [RCRA] – failure to comply
with state and federal RCRA regulations applicable to generators
of hazardous wastes[.]” Doc. #47 at 96 (capitalizations
altered). Plaintiff asserts that defendants are in violation of
40 C.F.R. §262.16(b)(8)(i), which provides: “A small quantity
generator must maintain and operate its facility to minimize the
This Count is also dismissed against all defendants for
reasons stated in Section IV.E.4.a., below.
11
38
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 39 of 62
possibility of a fire, explosion, or any unplanned sudden or
non-sudden release of hazardous waste or hazardous waste
constituents to air, soil, or surface water which could threaten
human health or the environment.” 40 C.F.R. §262.16(b)(8)(i);
see also Doc. #47 at 98, ¶512. According to the allegations of
the Amended Complaint, Motiva ceased to exist and was not
maintaining or operating the Terminal at the time plaintiff
filed the Complaint. Accordingly, Motiva was not a small
quantity generator within the meaning of RCRA, and was not
required to comply with the regulations applicable to hazardous
waste generators. Accordingly, Count 14 as to Motiva is
DISMISSED.12
Thus, for the reasons stated, all claims asserted against
Motiva are DISMISSED, other than Count 13.
D.
Claims Against the Non-Owner/Operator Defendants
Defendants assert that the Amended Complaint is defective
because it groups “separate corporate entities under a single
name – ‘Shell’ – without specifying the conduct allegedly
attributable to each” named defendant. Doc. #50-1 at 20-21.
Defendants contend that the Amended Complaint: (1) violates the
pleading requirements of Rule 8 of the Federal Rules of Civil
This Count is dismissed against all defendants for the reasons
stated in Section IV.E.4.b., below.
12
39
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 40 of 62
Procedure; and (2) “does not allege any facts that would suffice
to meet the high standard of holding a corporate entity liable
for acts of an affiliate.” Id. at 21. Plaintiff asserts that the
allegations of the Amended Complaint “are sufficient to state a
claim against the Parent Defendants because (i) CLF’s use of
‘Defendants’ and ‘Shell’ makes clear that CLF is asserting all
claims against all Defendants, and (ii) CLF sufficiently alleges
that the Parent Defendants exercise control over environmental
safety at the Terminal.” Doc. #53 at 35-36. The Court addresses
each argument in turn.
1.
Rule 8
Rule 8 of the Federal Rules of Civil Procedure sets a
“lenient standard” for pleading. Wynder v. McMahon, 360 F.3d 73,
80 (2d Cir. 2004). Rule 8 “does not demand that a complaint be a
model of clarity or exhaustively present the facts alleged,” but
it does require, “at a minimum, that a complaint give each
defendant fair notice of what the plaintiff’s claim is and the
ground upon which it rests.” Atuahene v. City of Hartford, 10 F.
App’x 33, 34 (2d Cir. 2001) (citation and quotation marks
omitted); see also Bruce Kirby, Inc. v. Quarter Moon, Inc., No.
3:17CV01389(JAM), 2018 WL 3614120, at *1 (D. Conn. July 27,
2018) (“Rule 8 pleading is extremely permissive[.]” (citation
and quotation marks omitted)). “Moreover, nothing in Rule 8
40
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 41 of 62
prohibits collectively referring to multiple defendants where
the complaint alerts defendants that identical claims are
asserted against each defendant.” Bruce Kirby, 2018 WL 3614120,
at *1 (citation and quotation marks omitted).
The Amended Complaint refers to all five defendants
collectively as “Shell” or “Defendants.” See generally Doc. #47.
Although defendants attack this group pleading, they do not
claim to lack adequate notice of the claims asserted against
them. “[M]otions to dismiss for improper group pleading fail
when, even though the plaintiff refers to ‘defendants’ generally
rather than a particular defendant individually, it is
sufficiently clear that in the particular factual context of the
case the complaint furnishes adequate notice for initial
pleading purposes of plaintiff’s claim of wrongdoing.” Arias v.
E. Hartford, No. 3:20CV00895(JCH), 2021 WL 3268846, at *4 (D.
Conn. July 30, 2021) (citation and quotation marks omitted).
Here, the Amended Complaint is adequately clear that identical
claims are being asserted against each defendant. See Doc. #47
at 1, ¶1; id. at 21, ¶106; id. at 24, ¶121. Accordingly, the
Amended Complaint provides adequate notice to defendants for
initial pleading purposes.
41
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 42 of 62
2.
Non-Owner/Operator Defendants
Defendants assert: “To the extent CLF contends the NonOwner/Operator Defendants are liable for the acts of other
corporate entities, that is easily dismissed. The Complaint
fails as a matter of law to provide any basis to hold these two
Defendants liable under such a theory.” Doc. #50-1 at 22 (sic). 13
Plaintiff asserts that it “plausibly alleges that the Parent
Defendants had sufficient control over the Terminal to be
considered ‘operators’ that are independently liable for the
violations alleged in the” Amended Complaint. Doc. #53 at 37.
The parties each rely on the Supreme Court’s decision in
United States v. Bestfoods, 524 U.S. 51 (1998), to support their
respective positions. See Doc. #50-1 at 22-23; Doc. #53 at 3839; Doc. #59 at 7-8. Although “Bestfoods interprets CERCLA,”
other courts have found that “its interpretation also applies to
questions of RCRA and CWA liability.” Cons. L. Found., Inc. v.
Shell Oil Prod. US, No. 17CV00396(WES), 2022 WL 2353065, at *2
n.3 (D.R.I. June 30, 2022) (“CLF III”).
The Bestfoods decision considered the question of “whether
a parent corporation that actively participated in, and
exercised control over, the operations of a subsidiary may,
The “Non-Owner/Operator Defendants” are Shell Oil Company and
Shell Petroleum, Inc.
13
42
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 43 of 62
without more, be held liable as an operator of a polluting
facility owned or operated by the subsidiary.” Bestfoods, 524
U.S. at 55.
The Supreme Court answered that question “no, unless the
corporate veil may be pierced.” Id. However, the Court
also held that a “corporate parent that actively
participated in, and exercised control over, the
operations of the facility itself may be held directly
liable in its own right as an operator of the
facility.” Id.
Yankee Gas Servs. Co. v. UGI Utils., Inc., 616 F. Supp. 2d 228,
240 (D. Conn. 2009). Defendants largely focus on whether
plaintiff has alleged sufficient facts to plausibly support
piercing of the corporate veil. See Doc. #50-1 at 22-23.
Plaintiff contends, however, that it “alleges that the Parent
Defendants are individually directly liable for the violations
in the AC; CLF is not seeking to hold the Parent Defendants
vicariously liable for the violations of the other defendants.”
Doc. #53 at 37 n.11. Accordingly, the Court considers whether
the facts alleged in the Amended Complaint state a plausible
claim for direct liability against the non-owner/operator
defendants.
In considering whether a parent company has direct
liability, “courts should focus on the parent’s interaction with
the subsidiary’s facility, and not on the relationship between
the two corporations. ... [T]he question is not whether the
43
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 44 of 62
parent operates the subsidiary, but rather whether it operates
the facility, and that operation is evidenced by participation
in the activities of the facility, not the subsidiary.” Yankee
Gas, 616 F. Supp. 2d at 241 (citation and quotation marks
omitted).
As previously noted, the Amended Complaint alleges that
“Shell [defined to encompass all defendants], acting through its
officers, managers, subsidiary companies, and instrumentalities,
owns and operates the Terminal.” Doc. #47 at 21, ¶106; see also
id. at 35, ¶175. The Amended Complaint further alleges:
“Defendants are[] ... responsible for the operation and
maintenance of the Terminal, including compliance with the
Permit.” Id. at 24, ¶121. The Amended Complaint alleges that the
parent companies maintain centralized climate change policies
and strategies, which “are binding on all companies in the Shell
group.” Id. at 8, ¶41; see also id. at 8-9, ¶¶42-43; id. at 10,
¶51 (“Compliance with Shell’s climate change policies and
strategies is mandatory for each Defendant.”). Construing these
allegations in the light most favorable to plaintiff, it is
reasonable to infer that such mandatory policies result in the
parent companies’ “manage[ment], direct[ion], or conduct [of]
operations [at the Terminal] specifically related to the leakage
or disposal of hazardous waste, or decisions about compliance
44
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 45 of 62
with environmental regulations.” Pateley Assocs. I, LLC v.
Pitney Bowes, Inc., 704 F. Supp. 2d 140, 146 (D. Conn. 2010)
(citation and quotation marks omitted).
Thus, at this early stage, these allegations “state a
plausible claim for direct liability under the standard
enunciated in Bestfoods. Since corporate control is a factspecific inquiry and may support a finding of direct liability
under both the CWA and RCRA, Plaintiff’s group allegations ...
pass muster to state a plausible claim[.]” CLF III, 2022 WL
2353065, at *2 (citation and quotation marks omitted).
Accordingly, defendants’ motion to dismiss on this ground is
DENIED.
E.
RCRA Claims (Counts 12, 13, and 14)
Plaintiff asserts two different categories of claims
pursuant to RCRA. Counts 12 and 14 assert claims for regulatory
violations, and Count 13 asserts an imminent and substantial
endangerment claim. See Doc. #47 at 89-98. The regulatory
violations, asserted pursuant to 42 U.S.C. §6972(a)(1)(A),
require plaintiff to allege that defendants are “in violation of
any permit, standard, regulation, condition, requirement,
prohibition or order[.]” 42 U.S.C. §6972(a)(1)(A). The imminent
and substantial endangerment claim, asserted pursuant to 42
U.S.C. §6972(a)(1)(B), requires plaintiff to allege that
45
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 46 of 62
any past or present generator, ... or past or present
owner or operator of a treatment, storage, or disposal
facility, ... has contributed or ... is contributing to
the past or present handling, storage, treatment,
transportation, or disposal of any solid or hazardous
waste which may present an imminent and substantial
endangerment to health or the environment[.]
42 U.S.C. §6972(a)(1)(B); see also White Plains Hous. Auth. v.
BP Prod. N. Am. Inc., 482 F. Supp. 3d 95, 115 (S.D.N.Y. 2020).
Defendants assert that “multiple elements of CLF’s RCRA
claims lack factual support[,]” and therefore, the Court “must
dismiss” these claims. Doc. #50-1 at 31. Plaintiff responds that
it has plausibly alleged that defendants have violated RCRA. See
Doc. #53 at 25. The Court addresses defendants’ arguments in
turn.
1.
Waste
Defendants first assert that plaintiff’s “RCRA claims fail
because its allegations do not concern ‘waste.’” Doc. #50-1 at
31. Defendants contend that “the Terminal stores and distributes
saleable fuel and other ‘products[,]’” and “saleable products
cannot be waste[.]” Id. Defendants further assert that although
they are alleged to be “generators of hazardous waste[,]” the
allegations related to the types of hazardous wastes listed in
the Amended Complaint “have nothing to do with the hazardous
waste they allege Defendants generate. Instead, CLF premises its
RCRA claims on the release of oil (saleable product) from the
46
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 47 of 62
Terminal’s storage tanks.” Id. at 32 (sic). Plaintiff asserts
that the allegations of the Amended Complaint “encompass all of
the waste at the Terminal, not just waste related to the product
storage tanks.” Doc. #53 at 27.
RCRA defines solid waste as, inter alia, “any garbage ...
and other discarded material ... resulting from industrial,
commercial, mining, and agricultural operations, and from
community activities[.]” 42 U.S.C. §6903(27). “In order for
waste to be classified as hazardous under RCRA, it must first
qualify as a solid waste pursuant to the statute.” Simsbury-Avon
Pres. Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 205
(2d Cir. 2009) (citation and quotation marks omitted). 14
Defendants cite to a slew of out of circuit case law to
support their position that saleable product, by definition,
cannot be waste. See Doc. #50-1 at 32-33. 15 However, courts in
Plaintiff’s regulatory and imminent endangerment claims both
require a finding that the waste at the Terminal constitutes
“solid waste” under RCRA. See Simsbury-Avon, 575 F.3d at 205-06;
Remington Arms, 898 F.2d at 1313.
14
Defendants cite to No Spray Coal., Inc. v. City of New York,
252 F.3d 148 (2d Cir. 2001), in further support of this
argument. There, the Second Circuit noted that it had previously
“indicated that material is not discarded until after it has
served its intended purpose.” Id. at 150. Presumably, after the
gasoline or petroleum product leaks from the above ground
storage tanks (as plaintiff alleges is the risk), it is no
longer usable and would not be able to serve its intended
purpose.
15
47
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 48 of 62
this Circuit have found: “Gasoline and petroleum are considered
a hazardous and solid waste under RCRA.” White Plains Hous., 482
F. Supp. 3d at 115–16 (citation and quotation marks omitted);
see also Bologna v. Kerr-McGee Corp., 95 F. Supp. 2d 197, 201
(S.D.N.Y. 2000) (“Petroleum is considered a hazardous and solid
waste under RCRA.”).
Plaintiff alleges that defendants’ failure to prepare the
Terminal for the imminent risks associated with the effects of
climate change will result in the release of petroleum and other
substances into the environment surrounding the Terminal. See
Doc. #47 at 90, ¶486. Plaintiff has also pled the presence of
other waste at the Terminal that is not gasoline or petroleum.
See Doc. #47 at 28-29, ¶¶143-45, 151; id. at 89-90, ¶¶465, 466;
id. at 93-94, ¶489; id. at 96-97, ¶504. Defendants assert that
these allegations do not relate to the harm claimed in the
Amended Complaint. The Court disagrees. The allegations of the
Amended Complaint encompass not just the materials held in the
storage tanks, but all waste at the Terminal. See Doc. #47 at
93-94, ¶¶487-90; id. at 96-97, ¶¶504-07. Accordingly, plaintiff
has adequately alleged the presence of waste at the Terminal.
See CLF II, 2020 WL 5775874, at *2 (finding, on similar
allegations, that “[f]oundationally, Plaintiff has pleaded the
existence of solid and hazardous waste at the Terminal[]”);
48
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 49 of 62
United States v. Hill, No. 95CV01716(RSP)(GJD), 1998 WL 278291,
at *3 (N.D.N.Y. May 20, 1998) (“[L]eakage of gasoline from an
underground storage tank into the surrounding soil constitutes
disposal of a solid waste under RCRA.”).
2.
Infrastructure Allegations
Defendants next contend that plaintiff’s RCRA claims “fail
to meet Iqbal’s basic pleading standard[,]” because “CLF
provides no specific factual support detailing how Defendants
have allegedly failed to address these risks.” Doc. #50-1 at 34.
Plaintiff responds that it “is not required to identify every
way that Defendants could change their facility to become RCRAcompliant in addition to considering and preparing for the
impacts of climate change, especially at this early stage of the
case.” Doc. #53 at 33.
The Amended Complaint alleges sufficient facts to support
the assertion that defendants have violated RCRA by failing to
adapt the Terminal to account for imminent risks caused by the
impacts of climate change. For example, plaintiff alleges:
“Shell’s containment structures, which are not designed to
protect against floodwaters or storm surge flowing onto the
Terminal, were not designed with sufficient freeboard to
accommodate extreme precipitation or coastal flooding, including
reasonably foreseeable impacts of climate change.” Doc. #47 at
49
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 50 of 62
56, ¶265; see also id. at 56, ¶266 (“Shell’s SWPPP does not
include any measures that Shell is taking to protect the [aboveground storage tanks], including such commonsense measures as
filling the tanks with liquid before storms or anchoring the
[above-ground storage tanks] to their bases, let alone
consideration of other strategies.”). Additionally, it is
reasonable to infer from the allegations of the Amended
Complaint that the infrastructure at the Terminal is at risk of
experiencing the same infirmities as those alleged to have
occurred at Shell’s Houston and Deer Park Facilities, among
others. See, e.g., Doc. #47 at 68-69, ¶¶322-326. 16
Accordingly, defendants’ motion to dismiss on this ground
is DENIED.
3.
Imminent and Substantial Endangerment Claim
(Count 13)
Defendants assert that plaintiff’s “claim under RCRA’s
endangerment provision also fails because the Complaint
identifies no act by any Defendant that is contributing to the
endangerment from the highly speculative flooding and severe
The Court has reviewed that portion of the SWPPP cited by
defendants and disagrees with defendants’ contention that
plaintiff’s “conclusory statements contradict the language in
the SWPPP, which shows Defendants have considered that
stormwater could be impacted by petroleum products from storage
tanks should the BMPs described in those documents not be
considered.” Doc. #50-1 at 34.
16
50
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 51 of 62
precipitation risks and fails to show how any such endangerment
is imminent.” Doc. #50-1 at 35 (citation and quotation marks
omitted). Plaintiff contends that it has alleged sufficient
facts to support its imminent and substantial endangerment
claim. See Doc. #53 at 28.
To state a claim pursuant to 42 U.S.C. §6972(a)(1)(B),
plaintiff must allege that
(1) the defendant was or is a generator or transporter
of solid or hazardous waste or owner or operator of a
solid or hazardous waste treatment, storage or disposal
facility, (2) the defendant has contributed or is
contributing to the handling, storage, treatment,
transportation, or disposal of solid or hazardous waste,
as defined by RCRA, and (3) that the solid or hazardous
waste in question may pose an imminent and substantial
endangerment to health or the environment.
Prisco v. A & D Carting Corp., 168 F.3d 593, 608 (2d Cir. 1999).
The Second Circuit has “indicated that the ‘imminent and
substantial endangerment’ standard is broad one[.]” SimsburyAvon, 575 F.3d at 210. The allegations of the Amended Complaint
satisfy this element, as previously discussed. Accordingly, the
Court next considers whether plaintiff has adequately alleged
the second and third elements of its endangerment claim.
a.
“Contributing To”
Defendants contend “that RCRA’s contributing to language
speaks in active terms about handling, storage, treatment,
transportation, or disposal of waste[,]” but here, plaintiff’s
51
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 52 of 62
“claimed endangerment ... is premised on the Defendants’ alleged
inaction[,]” and thus, plaintiff’s “claim based on acts the
Defendants have not undertaken contradicts the plain meaning of
contributed to and must be rejected.” Doc. #50-1 at 35-36
(citations and quotation marks omitted). Plaintiff asserts that
it “has adequately alleged that Defendants are contributing to
the past and present handling, storage, transportation, and
disposal of solid and hazardous waste[.]” Doc. #53 at 29
(quotation marks omitted).
“[T]he term ‘contributed to’ is not defined under RCRA, so
courts have looked to its ordinary meaning. To this end,
relevant legislative history supports a broad, rather than a
narrow, construction of the term.” White Plains Hous., 482 F.
Supp. 3d at 116 (citation and quotation marks omitted). “This is
in keeping with the liberal construction accorded to RCRA in
general because it is a remedial statute.” Aiello v. Town of
Brookhaven, 136 F. Supp. 2d 81, 112 (E.D.N.Y. 2001) (citation
and quotation marks omitted); see also Fresh Air for the
Eastside, Inc. v. Waste Mgmt. of N.Y., L.L.C., 405 F. Supp. 3d
408, 439 (W.D.N.Y. 2019) (“In analyzing this element of
a RCRA Endangerment Claim, consideration is due for RCRA’s broad
language and remedial purpose. This approach comports with the
Second Circuit’s expansive reading of RCRA and its remedies.”
52
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 53 of 62
(citations omitted)). Thus, “the term [‘contributed to’] for
RCRA purposes means that a defendant must be actively involved
in or have some degree of control over, have a share in any act
or effect, or act as a determining factor.” White Plains Hous.,
482 F. Supp. 3d at 116 (citations, quotation marks, and footnote
omitted).
In light of RCRA’s broad language and remedial purpose,
the Court finds that plaintiff has adequately alleged the second
element of its RCRA endangerment claim. The Amended Complaint
alleges that defendants are generators of hazardous waste who
operate and/or exercise control over the Terminal and its waste
disposal process. See Doc. #47 at 28-29, ¶¶143-45; id. at 35,
¶175; id. at 80, ¶¶398, 403; id. at 90, ¶467; id. at 92, ¶47880. The Amended Complaint further alleges that there have been
spills of hazardous waste at the Terminal during defendants’
ownership and operation of the Terminal. See Doc. #47 at 29,
¶¶148-51; id. at 94, ¶490; id. at 96, ¶502. Accordingly,
accepting the facts as true, and drawing all reasonable
inferences in plaintiff’s favor, plaintiff has adequately
alleged that defendants contribute to the handling, storage,
transportation, and/or disposal of solid and hazardous waste at
the Terminal. See, e.g., CLF II, 2020 WL 5775874, at *3 (finding
this element satisfied based on similar factual allegations).
53
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 54 of 62
b.
Imminence
Finally, defendants assert that plaintiff “has not alleged
an endangerment that threatens to occur immediately or is
present now[,]” but rather “alleges an injury that is premised
on scenarios occurring at the mid-century or end of the
century[.]” Doc. #50-1 at 37. Plaintiff contends that it “has
adequately alleged that Defendants’ failure to prepare the
Terminal for the known risks of climate change creates a risk of
imminent harm.” Doc. #53 at 32.
[A] plaintiff may bring a suit only upon a showing that
the solid or hazardous waste at issue may present an
imminent and substantial endangerment to health or the
environment. Regarding the imminency of an endangerment,
this language implies that there must be a threat which
is present now, although the impact of the threat may
not be felt until later. But liability under 42 U.S.C.
§6972 is not limited to emergency-type situations. Nor
does a finding of imminency require a showing that actual
harm will occur immediately. Instead, an imminent hazard
may be declared at any point in a chain of events which
may ultimately result in harm to the public.
White Plains Hous., 482 F. Supp. 3d at 116 (citation and
quotation marks omitted); see also Fresh Air for the Eastside,
405 F. Supp. 3d at 438.
The allegations of the Amended Complaint, as outlined in
Section IV.B.2.a. discussing imminence in the context of
standing, supra, adequately plead that “a risk of threatened
harm is present.” Fresh Air for the Eastside, 405 F. Supp. 3d at
54
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 55 of 62
438 (citation and quotation marks omitted); see id. (“Harm is
imminent if a risk of threatened harm is present.” (citation and
quotation marks omitted)).
Accordingly, accepting the allegations of the Amended
Complaint as true, and drawing all reasonable inferences in
plaintiff’s favor, plaintiff has adequately alleged a present
risk of harm. See, e.g., CLF II, 2020 WL 5775874, at *2
(“Plaintiff has pleaded facts satisfying this standard (even if
the harm may be well in the future) where Plaintiff theorizes
that Defendants’ failure to prepare the Terminal for the threat
of foreseeable weather events is an imminent endangerment.”).
Thus, defendants’ Motion to Dismiss as to the RCRA
endangerment claim (Count 13) is DENIED as to all defendants.
4.
Regulatory Violation Claims (Count 12 and Count
14)
Defendants next assert that “Counts 12 and 14 ... fail to
state a claim under RCRA[.]” Doc. #50-1 at 38. Plaintiff
contends that it “has adequately alleged its Open Dumping Claim
(Count 12) and its Generator Claim (Count 14).” Doc. #53 at 3334. The Court addresses each count separately.
a.
Count 12
Count 12 asserts an “open dumping” violation of RCRA, under
40 C.F.R. §257.1(a). See generally Doc. #47 at 89-93. Defendants
55
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 56 of 62
contend that because “Connecticut has obtained approval to
maintain its own waste management program regulating generators
of hazardous waste, and has its own regulation pertaining to
open dumps, ... CLF cannot allege a violation of the federal
hazardous waste regulations at 40 C.F.R. §257.1(a)(2).” Doc.
#50-1 at 38 (citations omitted). Plaintiff does not address the
substance of this argument, instead arguing that defendants have
waived this argument because they “cite no case law or statutory
support for this proposition and do not otherwise develop this
argument[.]” Doc. #53 at 34.
The parties’ briefing on this point is terribly unhelpful.
Defendants cite to one case in a footnote of their reply brief
in support of this argument, see Doc. #59 at 13 n.19, and
plaintiff does not even attempt to address the argument in a
meaningful way. See Doc. #53 at 34. Regardless, a review of the
scant case law in this Circuit indicates that plaintiff’s RCRA
claim based on federal law violations is prohibited. See Dague
v. City of Burlington, 935 F.2d 1343, 1352–53 (2d Cir. 1991)
(“Pursuant to §6926(b), an EPA-authorized state hazardous waste
program[] ... can supersede the permit and notification
requirements of subchapter III of RCRA. However, a state’s own
hazardous waste program affects only those actions brought
pursuant to subsection A, i.e., those that depend upon the
56
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 57 of 62
specific permit and notification requirements in subchapter
III.”), rev’d in part on other grounds, 505 U.S. 557 (1992);
accord Orange Env’t, Inc. v. Cnty. of Orange, 860 F. Supp. 1003,
1020 (S.D.N.Y. 1994) (“The Second Circuit has held that an EPA
authorized state hazardous waste program can supersede RCRA’s
permit and notification requirements, so that a citizen suit
pursuant to subsection (a)(1)(A) to enforce §6925 and §6930 is
unavailable.”); Aiello, 136 F. Supp. 2d at 107 (“The Second
Circuit [in Dague] affirmed the district court’s finding that
(a)(1)(A) was not implicated since state regulations superceded
the RCRA regulations that were the basis of the (a)(1)(A)
claims, and therefore a direct action to enforce the RCRA
regulations was not available to the plaintiffs.” (sic)
(citation and quotation marks omitted)); Brod v. Omya, Inc., No.
2:05CV00182(JJN), 2006 WL 8426527, at *5 (D. Vt. June 22, 2006)
(“[T]his Court’s holding does not prohibit a citizen suit under
§6972(a)(1)(A) based on state law violations. Rather, it
prohibits a RCRA citizen suit in federal court based on federal
law violations when there is an EPA approved state hazardous
waste program that supersedes the federal law.”). Accordingly,
defendants’ motion to dismiss Count 12 is GRANTED.
57
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 58 of 62
b.
Count 14
Count 14 alleges violations of both federal and Connecticut
regulations. See Doc. #47 at 96-98. Any claims asserted for
violations of federal regulations are dismissed as superseded by
the state regulations.
As to the Connecticut regulation asserted, section 22a-4303(h), defendants contend that this regulation “has nothing to do
with the management of solid or hazardous waste[,]” applying
instead to water discharge permits, and even if it were
relevant, “there are no facts anywhere in the Complaint to
support this claim[.]” Doc. #50-1 at 38-39 (emphases removed).
Plaintiff contends that “the RCRA generator rule places
additional duties on Defendants to avoid discharges of hazardous
waste.” Doc. #53 at 35.
Section 22a-430-3 governs “General Conditions Applicable to
Water Discharge Permits,” and provides in relevant part: “The
permittee shall take all reasonable steps to minimize or prevent
any discharge in violation of the permit or any discharge which
has a reasonable likelihood of adversely affecting human health
or the environment.” Conn. Agencies Regs. §22a-430-3(h).
Plaintiff does not attempt to reconcile how this regulation is
applicable to a RCRA claim. Indeed, this regulation falls under
DEEP’s water pollution control regulations, not those applicable
58
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 59 of 62
to solid waste management. Compare Conn. Agencies Regs. §§22a430-1, et seq. (Water Pollution Control), with Conn. Agencies
Regs. §§22a-209-1, et seq. (Solid Waste Management). Because the
Amended Complaint does not adequately allege how the state
regulation relied on would support a RCRA claim, defendants’
motion to dismiss Count 14 is GRANTED.
F.
Adaptation Claims Asserted Pursuant to the CWA
Last, defendants assert that plaintiffs have failed to state
a claim under the CWA for three separate reasons. See Doc. #50-1
at 39-44. The Court addresses each in turn.
1.
Impacts Beyond Life of NPDES Permit
Defendants contend that plaintiff “seeks to hold the
Defendants liable for” future risks that fall outside the five
year life of the Permit. Doc. #50-1 at 39. However, as
previously discussed, plaintiff has alleged “that a major
weather event, magnified by the effects of climate change, could
happen at virtually any time, resulting in the catastrophic
release of pollutants due to Defendants’ alleged failure to
adapt the Terminal to address those impending effects.” CLF II,
2020 WL 5775874, at *1. Accordingly, this argument is without
merit.
59
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 60 of 62
2.
Scope of Permitting Obligations
Defendants next contend: “The CWA’s permit shield expressly
bars CLF’s attempt to impose requirements beyond those in the
permit.” Doc. #50-1 at 40. Defendants assert that “Shell’s SWPPP
fully complies with the requirements of” the Permit, and
plaintiff’s “allegations otherwise are an improper attempt to
expand Connecticut’s permitting scheme.” Id. at 41. Plaintiff
responds that it “seeks to hold Defendants accountable to the
terms of the Permit[,]” and that its “claims are entirely
founded on the plain language of the Permit.” Doc. #53 at 21.
Plaintiff further contends that defendants are not “protected by
the ‘permit shield’ doctrine[,]” because plaintiff “is not
challenging the terms of Shell’s permit[,]” but rather
“enforcing those terms to remedy ongoing violations of the CWA
and RCRA.” Id. at 23.
The Amended Complaint alleges: “The Permit requires Shell
to implement ‘Control Measures’ to guard against the risks of
pollutant discharges in its stormwater.” Doc. #47 at 38, ¶192.
The Permit states:
Control Measures are required Best Management Practices
(BMP) that the permittee must implement to minimize the
discharge of pollutants from the permitted facility. The
term “minimize” means reduce and/or eliminate to the
extent achievable using control measures that are
technologically available and economically practicable
and achievable in light of best industry practice.
60
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 61 of 62
Id. at 38, ¶193. There are thirteen categories of “Control
Measures[,]” including the categories of: “Minimize Exposure[;]”
“Management of Runoff[;]” “Preventative Maintenance[;]” “Spill
Prevention and Response Procedures[;]” and “Non-Stormwater
Discharges[.]” Id. at 39-40, ¶¶196-200.
The allegations of the Amended Complaint do not seek to
hold defendants liable beyond what is required by the Permit. As
was true in CLF II, plaintiff’s claims here “entail interpreting
the Permit – asking, for example, whether” Best Management
Practices requires defendants to prepare the Terminal for the
immediate effects of climate change, including rising tides and
catastrophic storms. CLF II, 2020 WL 5775874, at *3.
Accordingly, as in CLF II, “because this suit does not challenge
the Permit’s terms[,] ... Defendants cannot invoke the permit
shield to avoid it.” Id. (citations omitted).
3.
Lack of Factual Support
Last, defendants assert that plaintiff’s “CWA Adaptation
Claims also fail because they continue the conclusory refrain
that Defendants have allegedly failed to address the potential
for severe precipitation and flooding, but allege no facts to
substantiate these claims.” Doc. #50-1 at 41-42.
61
Case 3:21-cv-00933-SALM Document 111 Filed 09/16/22 Page 62 of 62
The Court has considered each of defendants’ arguments and,
largely for the reasons stated by plaintiff in its brief, finds
that the Amended Complaint alleges fact sufficient to assert the
CWA Adaptation claims at this stage of the proceedings.
Accordingly, defendants’ motion to dismiss the CWA Adaptation
claims is DENIED.
G.
CONCLUSION
For the reasons stated, defendants’ Motion to Dismiss [Doc.
#50] is GRANTED, in part, and DENIED, in part.
The motion to dismiss is GRANTED as to all claims asserted
against Motiva, other than Count 13.
The motion to dismiss is GRANTED as to Counts 12 and 14,
against all defendants.
The motion to dismiss is otherwise DENIED in all other
respects.
It is so ordered at Bridgeport, Connecticut, this 16th day
of September 2022.
/s/
_________
HON. SARAH A. L. MERRIAM
UNITED STATES DISTRICT JUDGE
62
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?