Schmucker et al v. Johnson Controls Inc et al
Filing
62
OPINION AND ORDER GRANTING 16 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Johnson Controls Inc as to Count I which is dismissed without prejudice and DENIED as to CountII, and DENYING 55 MOTION for Leave to File Motion to Strike or File Sur-Sur-Reply in Support of Motion to Dismiss filed by Johnson Controls Inc. Plaintiff is granted until 4/6/2015 to file an amended complaint. Signed by Judge Jon E DeGuilio on 3/2/2015. (kds)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RONALD and SONYA SCHMUCKER,
et al.,
Plaintiffs,
v.
JOHNSON CONTROLS, INC., et al.,
Defendants.
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Case No. 3:14-CV-1593 JD
OPINION AND ORDER
This is a citizen suit under the Resource Conservation and Recovery Act relative to a
former manufacturing facility in Goshen, Indiana, that the Plaintiffs allege contaminated the
ground with hazardous wastes and caused dangerous levels of Trichloroethylene to be present in
their neighborhood. The Plaintiffs, five individuals who own or reside in homes near the site,
sued Johnson Controls, Inc., which owned and operated the facility from 1937 through 2007, and
Tocon Holdings, LLC, which currently owns the property. They asserted claims against both
defendants under each applicable citizen-suit prong of RCRA, alleging that the defendants are in
violation of various RCRA requirements (Count I) and that they have caused or contributed to an
imminent and substantial endangerment to health or the environment (Count II).
Tocon Holdings answered the complaint, but Johnson Controls has moved to dismiss
both counts. Johnson Controls argues as to Count I that the complaint fails to state a claim, and
argues as to both counts that the Plaintiffs failed to provide notice far enough in advance of filing
suit, which is a statutory prerequisite to certain claims. The motion has been exhaustively
briefed. For the reasons that follow, the Court grants the motion to dismiss as to Count I and
denies it as to Count II, and grants Plaintiffs leave to amend.
I. FACTUAL BACKGROUND
Johnson Controls began operating a manufacturing facility in Goshen, Indiana in 1937,
manufacturing parts for thermostats and building control systems. The facility’s operations
involved the use of Trichloroethene (TCE) and other hazardous chemicals. From 1937 through
1965, Johnson Controls discharged the waste products of these chemicals into an adjacent creek
at a rate it estimated at 6 million gallons per year. The State of Indiana then ordered Johnson
Controls to cease this dumping, at which point Johnson Controls began storing the wastes on-site
in drums and other containers, pending off-site disposal. However, during the course of its
operations, Johnson Controls also occasionally spilled or dumped this waste onto the ground.
When the regulations under the Resource Conservation and Recovery Act took effect in
1980, Johnson Controls qualified as a facility for the treatment, storage, or disposal of hazardous
waste. It thus filed its “Part A” application on October 29, 1980, and on June 14, 1982, the
Environmental Protection Agency notified Johnson Controls that it had been granted “interim
status,” the first step towards receiving a permit to store hazardous waste. At that point, Johnson
Controls was required to either submit its “Part B” application to receive a formal permit, or to
submit a closure plan. Johnson Controls opted to take the latter path, and beginning in 1989, it
filed a series of closure plans for its four on-site hazardous waste management units. The Indiana
Department of Environmental Management finally approved the closure plan on March 20, 1991.
Johnson Controls then conducted soil sampling as recommended by IDEM, which detected
contamination in the soil under the facility as high as 260,000 parts per billion (ppb). To
determine the extent of the contamination, the facility commissioned a study that found a plume
of contamination consisting primarily of TCE that extended 5,400 feet offsite to the west, 800
feet wide, and 170 feet below grade. The report stated that “it is believed that the plume is an
2
accumulation of releases which occurred over a 55-year period of facility operations.” [DE 4
¶ 68].
Much of the plume was below a residential area, and it included two private drinking
water wells. The tap water in the homes using those wells contained TCE in concentrations of
12,200 and 1,300 ppb. By comparison, the maximum contaminant level for TCE established by
the EPA was 5 ppb. According to Plaintiffs, though, Johnson Controls acted slowly to contain or
remediate this contamination. Not until 1997 did it submit a remediation plan to IDEM and
install extraction wells in an attempt to remediate the TCE contamination to acceptable levels.
Plaintiffs further allege that Johnson Controls’ remediation efforts since then have been minimal
and ineffectual, allowing dangerous levels of TCE to persist in their neighborhood through to the
present. As of January 2013, groundwater underlying Goshen High School, which sits at the far
end of the contamination plume, contained TCE contamination of 192 ppb. Another groundwater
monitoring well in the heart of the neighborhood recorded even greater TCE contamination of
1,150 ppb, and other monitoring wells in the area likewise show substantial TCE contamination.
In addition, in 2011, Johnson Controls began investigating vapor intrusion, through
which vapors from the TCE in the ground rise through the soil and contaminate the air inside
surface structures. A July 12, 2012 report on vapor intrusion in the neighborhood inside the
plume stated that “TCE was detected at concentrations exceeding the Residential Screening
Level in 36 of the 39 sub-slab vapor samples collected from residential properties.” [DE 4
¶ 106]. The vapor levels at a number of these homes exceeded the recommended levels by
several hundred times. In addition, the report revealed that 15 of the 20 residential homes tested
had unacceptable levels of TCE vapors within their indoor air. Johnson Controls had vapor
mitigation systems installed in those homes, but two of the homes had unacceptable levels of
3
vapor intrusion even after installation of those systems, and Plaintiffs allege that Johnson
Controls has not been properly monitoring or maintaining the systems. Plaintiffs further allege
that many of the homes within the plume have not been tested at all, even though they are likely
contaminated.
Dissatisfied with the pace and extent of Johnson Controls’ remediation efforts, Plaintiffs
served notice of their intent to sue on May 28, 2014, and then commenced this action on May 30,
2014, asserting two causes of action under RCRA. Johnson Controls has now moved to dismiss
both counts.
II. STANDARD OF REVIEW
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim
upon which relief may be granted. When considering a Rule 12(b)(6) motion to dismiss, the
Court must decide whether the complaint satisfies the “notice-pleading” standard. Indep. Trust
Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012). The notice-pleading
standard requires that a complaint provide a “short and plain statement of the claim showing that
the pleader is entitled to relief,” sufficient to provide “fair notice” of the claim and its basis. Id.
(citing Fed. R. Civ. P. 8(a)(2)); Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011) (internal
citations omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
determining the sufficiency of a claim, the Court construes the complaint in the light most
favorable to the nonmoving party, accepts all well-pleaded facts as true, and draws all inferences
in the nonmoving party’s favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir.
2010) (internal citations omitted).
The Supreme Court has adopted a two-pronged approach when considering a Rule
12(b)(6) motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). First, pleadings
consisting of no more than mere conclusions are not entitled to the assumption of truth. Id. This
4
includes legal conclusions couched as factual allegations, as well as “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing
Twombly, 550 U.S. at 555). Second, if well-pleaded factual allegations are present in the
complaint, courts should “assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Id. at 679.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. The complaint “must actually suggest that the plaintiff has a right to
relief, by providing allegations that raise a right to relief above the speculative level.” Maddox,
655 F.3d at 718 (internal citations omitted). A plaintiff’s claim, however, need only be plausible,
not probable. Indep. Trust Corp., 665 F.3d at 934 (quoting Twombly, 550 U.S. at 556).
Determining whether a complaint states a plausible claim for relief is “a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,
556 U.S. at 679 (internal citations omitted). Factual allegations, however, “that are merely
consistent with a defendant’s liability . . . stop[] short of the line between possibility and
plausibility of entitlement to relief.” Id. at 678.
Finally, because a motion to dismiss tests the legal adequacy of a complaint, not its
factual support, a court is limited in the materials it can rely on in resolving such a motion. “A
motion under Rule 12(b)(6) can be based only on the complaint itself, documents attached to the
complaint, documents that are critical to the complaint and referred to in it, and information that
is subject to proper judicial notice.” Geinosky v. City of Chi., 675 F.3d 743, 745 n.1 (7th Cir.
2012); see Fed. R. Civ. P. 12(d). The Seventh Circuit has also recognized a narrow exception to
that rule for materials submitted by the non-movant, but only for the limited purpose of
5
illustrating that the allegations in the complaint are plausible. Geinosky, 675 F.3d at 745 n.1.
Here, both parties have submitted materials outside of the pleadings, but they both argue that the
materials are public records subject to judicial notice such that the Court can consider them
without converting the motion to a motion for summary judgment. The Court agrees, and also
notes that none of those materials are essential to the resolution of this motion, so it does not
need to convert the motion to one for summary judgment.
III. DISCUSSION
The Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., “enacted a
broad range of policies and procedures to control disposal of solid and hazardous waste in the
United States to protect public health and the environment.” Adkins v. VIM Recycling, Inc., 644
F.3d 483, 486 (7th Cir. 2011). Subchapter III of RCRA, which pertains specifically to hazardous
wastes, “empowers [the Environmental Protection Agency] to regulate hazardous wastes from
cradle to grave . . . .” City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331–32 (1994). RCRA
is implemented through a complex regulatory scheme that includes roles for the federal
government, for state governments, and for citizens acting as “private attorneys general.” Adkins,
644 F.3d at 486; AM Int’l, Inc. v. Datacard Corp., DBS, 106 F.3d 1342, 1349 (7th Cir. 1997).
The EPA has the default responsibility for implementing and enforcing RCRA, but it may also
authorize states to assume those roles. 42 U.S.C. § 6926(b). In that event, so far as is relevant
here, the state regulations operate in lieu of the federal regulations, and the two governments
share enforcement authority. Id.
In addition, RCRA contains two causes of action through which private individuals can
assume enforcement roles. First, subsection (a)(1)(A) of § 6972 permits an individual to sue “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 [RCRA.]” 42 U.S.C.
6
§ 6972(a)(1)(A). Second, subsection (a)(1)(B) permits an individual to sue “any person . . . 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)(B). While an
(a)(1)(A) claim requires a violation of some obligation under RCRA, without regard to its effects
or severity, an (a)(1)(B) claim requires the presence of an imminent and substantial
endangerment to health or the environment, but need not be predicated on any violation. In order
to bring either of these claims, an individual must first provide notice to the defendant and to the
state and federal agencies, and must then wait 60 or 90 days before filing suit. 42 U.S.C.
§ 6972(b). A plaintiff need not delay after providing notice, however, “in the case of an action
under this section respecting a violation of subchapter III of this chapter.” Id.
Plaintiffs press both claims here. Count II, which is based on the alleged presence of
dangerous levels of TCE contamination in Plaintiffs’ neighborhood, fits comfortably within the
framework of an (a)(1)(B) claim for an imminent and substantial endangerment to health or the
environment, and Johnson Controls does not challenge its sufficiency. Count I is more
problematic, however, as Plaintiffs base this claim primarily on the presence of that same
contamination, but struggle to identify any “permit, standard, regulation, condition, requirement,
prohibition, or order” that Johnson Controls is “in violation of,” as is required for an (a)(1)(A)
claim. Johnson Controls thus moves to dismiss Count I for failure to state a claim. In addition,
because Plaintiffs filed this suit only two days after serving notice of the claims, Johnson
Controls also argues that both counts should be dismissed for failure to observe the statutory
notice and delay periods.
7
Before moving to the merits of the motion to dismiss, Johnson Controls has filed a
motion to strike Plaintiffs’ sur-reply or for leave to file a sur-sur-reply. [DE 55]. After briefing
on the motion to dismiss was complete, Plaintiffs moved for leave to make a belated request for
oral argument so that they could respond to an exhibit that Johnson Controls attached to its reply
brief. The Court denied that motion and instead granted leave for Plaintiffs to file a sur-reply,
which they did. In response to the sur-reply, Johnson Controls filed this motion, arguing that the
arguments in the sur-reply exceeded the scope of the leave granted by the Court. Johnson
Controls asks the Court to strike the sur-reply, or in the alternative, for leave to file a sur-surreply, which it attached to the motion. Plaintiffs did not respond to the motion. In the interests of
allowing the parties to be fully heard relative to the motion to dismiss, the Court denies the
motion to strike, but grants Johnson Controls permission to file a sur-sur-reply, and has
considered that filing in resolving the motion to dismiss.
A.
Count I: Subsection (a)(1)(A) Claim
In Count I, Plaintiffs allege that Johnson Controls has violated various obligations under
RCRA. Johnson Controls seeks dismissal of this count on two grounds: first, for failure to
comply with the statutory notice and delay provision; and second, for failure to adequately plead
a violation of RCRA, as is required for an (a)(1)(A) claim. The Court addresses each argument in
turn.
1.
Plaintiffs’ Subsection (a)(1)(A) Claim is Not Premature
Johnson Controls first argues that Plaintiffs failed to comply with the 60-day waiting
period after serving notice of their claim before filing suit. Under § 6972(b)(1)(A), “No action
may be commenced under subsection (a)(1)(A) of this section . . . prior to 60 days after the
plaintiff has given notice of the violation.” 42 U.S.C. § 6972(b)(1)(A). The lone exception to this
waiting period is that an “action may be brought immediately after such notification in the case
8
of an action under this section respecting a violation of subchapter III of this chapter [Chapter 82
of Title 42 of the United States Code, where RCRA is codified].” Id. Under the Supreme Court’s
decision in Hallstrom v. Tillamook County, 493 U.S. 20, 33 (1989), a failure to meet these
requirements requires dismissal.1
Here, Plaintiff served the appropriate parties with notice of their claims on May 28, 2014,
and then commenced this action by filing suit on May 30, 2014, only two days later. [DE 4-1].
Thus, for this action to be timely, the exception to the waiting period must apply, meaning this
must be an action “respecting a violation of subchapter III” of RCRA. § 6972(b)(1)(A).
Subchapter III of RCRA addresses hazardous wastes, which are at issue here, but there is a
complication in that Indiana has been authorized by the EPA to administer and enforce its own
hazardous waste program. 61 Fed. Reg. 43018. Under RCRA, when a state has been authorized
by the EPA, the state’s program operates “in lieu of the Federal program under this subchapter
[Subchapter III].” 42 U.S.C. § 6926(b). Therefore, Johnson Controls argues that Plaintiffs’ claim
is not respecting a violation of subchapter III of RCRA, but is merely respecting violations of
state regulations, so it does not qualify for the exception to the delay period.
In resolving this objection, it is helpful to first clarify what is and what is not in dispute.
First, Johnson Controls does not contend that an (a)(1)(A) claim is not available at all in
authorized states, even though in that event the claim must be based on state regulations, which
1
The Supreme Court expressly declined to address whether the notice and delay requirement
affects a court’s subject matter jurisdiction or is merely a condition precedent to filing suit that
can be enforced by a defendant. Hallstrom, 493 U.S. at 31. More recently, the Seventh Circuit
has held that this requirement is not jurisdictional: “In Hallstrom, . . . the Supreme Court
declined to decide whether RCRA’s notice and 60-day delay requirements for citizen suits are
jurisdictional. Under the analysis the Supreme Court has applied more recently to similar
questions, the clear answer is that they are not.” Adkins v. VIM Recycling, Inc., 644 F.3d 483,
492 n.3 (7th Cir. 2011). The difference is not consequential here, however, since the remedy in
either case is dismissal without prejudice.
9
apply in lieu of the federal ones. AM Int’l, Inc. v. Datacard Corp., DBS, 106 F.3d 1342, 1350
(7th Cir. 1997). An (a)(1)(A) claim must be based on an obligation “which has become effective
pursuant to” RCRA. 42 U.S.C. § 6972(a)(1)(A). As the Seventh Circuit has at least implicitly
acknowledged, and as the EPA persuasively reasons, the EPA’s authorization of a state program
(the authority for which is also located in RCRA, § 6926) makes that state program effective
pursuant to RCRA, so violations of the state program are actionable through an (a)(1)(A) claim.
Datacard, 106 F.3d at 1350–51 (holding that the plaintiff’s (a)(1)(A) claim that alleged
violations of federal regulations in an authorized state failed simply because the plaintiffs “based
the claim on the wrong set of regulations”); 63 Fed. Reg. 57026, 57033 (Oct. 23, 1998) (“EPA’s
longstanding view is that citizens can enforce the elements of an authorized state hazardous
waste program under RCRA [Subsection III] by bringing an action under RCRA section
[§ 6972]. . . . EPA authorization of the state program gives that state program legal effect under
federal law—i.e., the state program ‘becomes effective pursuant to RCRA.’ The state program
thus is citizen enforceable under the plain language of RCRA section [§ 6972].”). Johnson
Controls thus concedes that an (a)(1)(A) claim may be available, but argues more narrowly that
(a)(1)(A) claims that are based on state regulations (as they must be in authorized states) are not
“respecting a violation of Subchapter III” of RCRA, so they do not qualify for the exception of
the notice and delay requirement.
Second, Johnson Controls does not also argue that federal regulations promulgated under
the authority granted by Subchapter III cannot form the basis for a claim respecting a violation of
Subchapter III. In other words, Johnson Controls does not argue that a claim is only respecting a
violation of Subchapter III if the obligation that was violated is found directly in the statutory
text of Subchapter III, as opposed to in the regulations that Subchapter III directs the EPA to
10
establish. Thus, the distinction that Johnson Controls draws is only between federal regulations,
which can form the basis for Subchapter III claims, and state regulations, which Johnson
Controls contends cannot.
However, the Court disagrees that the distinction between federal and state regulations is
meaningful as to whether a claim under (a)(1)(A) is respecting a violation of Subchapter III of
RCRA. Subchapter III is predominantly an enabling statute that directs the establishment of a
body of regulations to govern hazardous wastes, see generally Covington v. Jefferson Cnty., 358
F.3d 626, 648 (9th Cir. 2004) (distinguishing between the substantive and enabling provisions of
§ 6924), and it provides two frameworks under which that body of regulations can be created and
take effect. Much of Subchapter III is devoted to directing the EPA to promulgate regulations to
create a federal permitting and enforcement scheme for hazardous wastes. However, Subchapter
III also permits states to develop their own hazardous waste programs, and specifies a process by
which the EPA can grant the state authorization to carry out its program, which then operates “in
lieu of” the federal program. § 6926(b). Under either framework, the result is a body of
regulations that is authorized and given effect through Subchapter III. Thus, it is not apparent
why it should matter for these purposes whether that body of regulations was the product of the
EPA’s rule-making process pursuant to Subchapter III’s directives to promulgate regulations, or
the product of the EPA’s authorization process that is also set forth in Subchapter III.
Other provisions within Subchapter III confirm that the statute views the two programs as
equivalent in this context. First, § 6926(d) states, “Any action taken by a State under a hazardous
waste program authorized under this section shall have the same force and effect as action taken
by the Administrator under this subchapter,” 42 U.S.C. § 6926(d), which shows that RCRA
holds actions by the states in equal regard to actions by the EPA. In addition, the provision that
11
permits the EPA to authorize state programs begins, “Any State which seeks to administer and
enforce a hazardous waste program pursuant to this subchapter [Subchapter III] may develop
and . . . submit to the Administrator an application . . . for authorization of such program.” 42
U.S.C. § 6926(b) (emphasis added). In other words, the program that the state develops and that
the EPA authorizes under this section constitutes a program pursuant to Subchapter III,
indicating that a violation of a regulation under that program would be considered a violation of
Subchapter III.
Likewise, § 6928, which authorizes the EPA to take action to enforce Subchapter III,
states:
In the case of a violation of any requirement of this subchapter [Subchapter III]
where such violation occurs in a State which is authorized to carry out a
hazardous waste program under section 6926 of this title, the Administrator shall
give notice to the State in which such violation has occurred prior to issuing an
order or commencing a civil action under this section.
42 U.S.C. § 6928(a)(2) (emphasis added). Under Johnson Controls’ argument, there is no such
thing as a violation of any requirement under Subchapter III in an authorized state, so this
provision would be dead letter.2 Finally, on multiple occasions, the EPA has expressly
characterized state regulations in authorized states as Subchapter III requirements, 53 Fed. Reg.
28160, 28166 (July 26, 1988) (describing the process for authorized states to revise their
regulations, and stating that “[o]nce EPA approves the revision, the State requirements become
Subtitle C [codified as Subchapter III] RCRA requirements”); 52 Fed. Reg. 8704, 8708 (Mar. 19,
2
In its reply brief, Johnson Controls notes that under the Hazardous and Solid Waste
Amendments to RCRA, which were passed in 1984, certain federal regulations took immediate
effect in all states, regardless of whether the state had an authorized program, so there could be
both state and federal regulations in effect until the state updated its program to include the new
federal regulations. However, the enforcement provision quoted above in § 6928(a)(2) was
included when RCRA was passed in 1976. Pub. L. 94-580, 90 Stat. 2795 (1976). Since this
provision did not contemplate the existence of dually applicable state and federal regulations at
the time it was enacted, that possibility cannot justify Johnson Controls’ argument.
12
1987) (same); 50 Fed. Reg. 26444, 26489 (June 26, 1985) (same), so violations of those
requirements would qualify as violations of Subchapter III on that basis as well.
The Court acknowledges that some other district courts within this Circuit have adopted
Johnson Controls’ argument that violations of state regulations do not constitute Subchapter III
violations for the purposes of the statutory delay period. Clean Harbors Servs., Inc. v. Ill. Int’l
Port Dist., No. 12 C 7837, 2013 WL 678271, at *3–5 (N.D. Ill. Feb. 25, 2013); Evco Assocs.,
Inc. v. C.J. Saporito Plating Co., No. 93 C 2038, 1994 WL 687552, at *4 (N.D. Ill. Dec. 7,
1994). The Court respectfully declines to adopt the reasoning of those cases for several reasons.
First, those courts relied primarily on the distinction between state and federal regulations,
which, for the reasons explained above, the Court does not find to be meaningful in this context.
Second, the authorities those cases cited in support of their conclusion, and which they
characterized as representing the consensus on this issue, did not actually hold that violations of
state regulations do not constitute Subchapter III violations. Rather, Datacard, 106 F.3d 1342;
Clorox Co. v. Chromium Corp., 158 F.R.D. 120 (N.D. Ill. 1994); and City of Heath, Ohio v.
Ashland Oil, Inc., 834 F. Supp. 971, 979 (S.D. Ohio 1993) held only that (a)(1)(A) claims in
authorized states must be based on state regulations, not federal regulations, which does not
support the logical leap that (a)(1)(A) claims that are properly based on state regulations do not
constitute claims respecting violations of Subchapter III. In addition, Orange Environment, Inc.
v. Cnty. of Orange, 860 F. Supp. 1003, 1020 (S.D.N.Y. 1994) and Thompson v. Thomas, 680 F.
Supp. 1, 3 (D.D.C. 1987) held that (a)(1)(A) claims are not available at all in authorized states,
which even Johnson Controls does not argue is good law.3
3
Further, in a subsequent opinion in Evco, the court retracted the suggestion in its previous order
that (a)(1)(A) claims are not available at all in authorized states. 1995 WL 571438, at *2, n.1
(N.D. Ill. Sept. 25, 1995).
13
Therefore, the Court respectfully parts company with those cases, and holds that
violations of state regulations that are part of state programs authorized by the EPA under
§ 6926(b) constitute violations of Subchapter III for the purposes of the exception to the notice
and delay period. Accordingly, the delay period is not an impediment to this claim, as if
Plaintiffs have adequately pled violations of the state regulations, no delay period will have been
required under § 6972(b)(1)(A), and if they have not done so, this claim will be dismissed for
failure to state a claim.4 Even then, a claim need not be successful to fall within the Subchapter
III exception to the delay period, as compliance with the notice and delay provisions “is
determined at the time the complaint is filed.” Datacard, 106 F.3d at 1351. Violations of the
provisions at issue here would constitute violations of Subchapter III, so even if Plaintiffs are
ultimately unsuccessful on that claim, they will not have violated the delay period. The Court
therefore declines to dismiss Count I on this basis.
2.
Plaintiffs Failed to State a Claim for a Violation of RCRA upon which a
Subsection (a)(1) Claim May be Based
The Court next considers whether Plaintiffs have adequately pled a violation of “any
permit, standard, regulation, condition, requirement, prohibition, or order,” as is required to state
an (a)(1)(A) claim. Plaintiffs’ complaint identifies three federal statutory provisions and six
Indiana regulations that Johnson Controls is allegedly in violation of. The factual allegations in
the complaint focus primarily on the extent of the TCE contamination in the neighborhood of the
plant, which goes to the (a)(1)(B) claim for an endangerment of health and the environment. The
4
The Court notes that Plaintiffs also assert violations of statutory provisions within Subchapter
III, including 42 U.S.C. § 6924(u), (v), and § 6928(h). To the extent Plaintiffs adequately pled a
violation of those provisions, the claim would be respecting a violation of Subchapter III.
Covington, 358 F.3d at 636–37. As discussed below, however, these provisions impose no
substantive obligations on Johnson Controls that it could have violated. Because there is no
possibility that these particular provisions could give rise to a violation of Subchapter III, the
Court does not rely on these allegations to find the claim timely.
14
complaint offers much less factual detail relevant to the (a)(1)(A) claim, however. In the section
of the complaint addressing RCRA violations, the complaint spends a number of paragraphs
paraphrasing each of the statutes and regulations at issue, and then alleges in a conclusory
fashion that Johnson Controls “is in violation of RCRA’s and Indiana’s parallel hazardous waste
regulations, set forth i[n] the preceding paragraphs 119 through 127, for its releases of hazardous
waste, and failure to conduct appropriate corrective [sic] or achieve closure, causing an imminent
substantial endangerment to human health and the environment.” [DE 4 ¶ 128]. In moving to
dismiss, Johnson Controls argues that many of the provisions at issue do not even apply to it, and
that as to the others, Plaintiffs have failed to adequately allege that it is in current violation of the
provision. The Court first analyzes the statutory provisions at issue, and then turns to the state
regulations.
a.
Alleged Violations of 42 U.S.C. § 6924(u), (v), and § 6928(h)
Plaintiffs first argue that Johnson Controls violated three statutory provisions relative to
corrective action, including 42 U.S.C. § 6924(u) and (v), and § 6928(h). In general, corrective
action refers to the process by which facilities respond to and remediate past and present releases
of hazardous waste from their facility. Johnson Controls responds in part by arguing that these
provisions do not impose any substantive obligations on it that it could have violated, so the
complaint necessarily fails to state a claim for violations of these provisions. The Court agrees.
Subsections (u) and (v) of § 6924, which were added to RCRA in the Hazardous and
Solid Waste Amendments Act of 1984, require the EPA to take certain actions to expand the
corrective action requirements for hazardous waste facilities. Specifically, subsection (u) states
in full:
Standards promulgated under this section shall require, and a permit issued after
November 8, 1984, by the Administrator or a State shall require, corrective action
for all releases of hazardous waste or constituents from any solid waste
15
management unit at a treatment, storage, or disposal facility seeking a permit
under this subchapter, regardless of the time at which waste was placed in such
unit. Permits issued under section 6925 of this title shall contain schedules of
compliance for such corrective action (where such corrective action cannot be
completed prior to issuance of the permit) and assurances of financial
responsibility for completing such corrective action.
42 U.S.C. § 6924(u). Subsection (v) is structured similarly, and states:
As promptly as practicable after November 8, 1984, the Administrator shall
amend the standards under this section regarding corrective action required at
facilities for the treatment, storage, or disposal, of hazardous waste listed or
identified under section 6921 of this title to require that corrective action be taken
beyond the facility boundary where necessary to protect human health and the
environment unless the owner or operator of the facility concerned demonstrates
to the satisfaction of the Administrator that, despite the owner or operator’s best
efforts, the owner or operator was unable to obtain the necessary permission to
undertake such action.
42 U.S.C. § 6924(v).
As Johnson Controls argues, though, nowhere do these provisions impose obligations
directly on Johnson Controls or any facility. Subsection (u) governs the EPA’s issuance of
standards and permits, and subsection (v) requires the EPA to amend its standards in certain
respects. Thus, while a facility could conceivably violate those standards or permits, it could not
violate these provisions themselves, as these provisions only impose requirements on the EPA.
See Krafczek v. Exide Corp., No. A. 00-CV-1965, 2000 WL 1130088, at *2 (E.D. Penn. Aug. 9,
2000) (“Sections 6924(u) and 6924(v) merely require the Administrator to promulgate standards
pertaining to corrective action.”). Therefore, to the extent Johnson Controls has violated an
obligation under RCRA relative to corrective action, the source of that obligation must be found
elsewhere.
Section 6928(h) presents an even clearer case, as not only does it pertain only to the EPA,
it merely gives the EPA discretionary authority and imposes no actual requirements on anyone.
Section 6928(h) states:
16
Whenever on the basis of any information the Administrator determines that there
is or has been a release of hazardous waste into the environment from a facility
authorized to operate under section 6925(e) of this title [interim status facilities],
the Administrator may issue an order requiring corrective action or such other
response measure as he deems necessary to protect human health or the
environment or the Administrator may commence a civil action in the United
States district court in the district in which the facility is located for appropriate
relief, including a temporary or permanent injunction.
42 U.S.C. § 6928(h)(1). While Plaintiffs are correct that this provision contemplates that interim
status facilities like Johnson Controls will be subject to corrective action requirements, its plain
language implements those requirements only through a discretionary action by the EPA: “the
Administrator may issue an order . . . .” Id.; USG Corp. v. Brown, No. 89 C 2874, 1994 WL
654488, at *5–6 (N.D. Ill. Nov. 17, 1994) (agreeing that “§ 3008(h) is not self-executing, but
rather requires affirmative action by the EPA,” and holding that “defendants were not under any
duty to remedy the release until the U.S. EPA determined that corrective action needed to be
done”).
Tellingly, while Plaintiffs repeatedly assert that Johnson Controls is obligated to take
corrective action, they never indicate what corrective action it is supposed to take, or in what
respect it has failed to do so. That is likely because those requirements are set forth, if at all, in
the standards, permits, and orders discussed in these provisions; they are not imposed by these
provisions themselves. However, Plaintiffs never assert that the EPA or IDEM have issued any
such permits or orders as to Johnson Controls, or that any particular standard requires Johnson
Controls to take corrective action. Absent any applicable source for a corrective action
obligation, Johnson Controls cannot be in violation of such an obligation, so these provisions
cannot provide a basis for Plaintiffs’ claim.
In arguing to the contrary, Plaintiffs rely heavily on the Seventh Circuit’s opinion in
National-Standard Co. v. Adamkus, 881 F.2d 352 (7th Cir. 1989). Adamkus involved a dispute
17
between a hazardous waste facility and the EPA over whether the EPA had the authority to enter
the facility to conduct an inspection. Id. at 353. In support of its authority to do so, the EPA cited
§ 6924(u), discussed above, and § 6927(a), which expressly authorizes the EPA to conduct
inspections. The Seventh Circuit sided with the EPA and held that the EPA had the authority to
conduct the inspections in question, but this case offers no support for Plaintiffs. First, Adamkus
expressly limited its analysis to § 6927(a), and since that provision was dispositive, the court did
not even discuss the parameters of § 6924(u), which is at issue here, except to note that § 6924(u)
did not affect its analysis of § 6927(a). Id. at 358–61. Second, Adamkus involved the scope of the
EPA’s authority, not of individuals’ rights under RCRA’s citizen suit provisions. As just
discussed, the fact that a statute may authorize or require the EPA to take certain action does not
mean that the statute imposes direct substantive obligations on hazardous waste facilities upon
which a citizen can base an (a)(1)(A) claim.
Much of Plaintiffs’ argument as to these provisions rests on the premise that Congress
included citizen suits in RCRA in order to fill in the gaps where the agency may be unable or
unwilling to fully enforce RCRA’s requirements. See Datacard, 106 F.3d at 1349 (noting that
“the idea behind citizen suit enforcement is to unleash an army of private attorneys general to
force cleanups when the government drags its feet”). Plaintiffs then cite to a number of sources
discussing the EPA’s authority, and reason that because they are acting as private attorneys
general through this citizen suit, they are entitled to exercise that same authority. However, this
reasoning finds no support in the text of the statute. A subsection (a)(1)(A) claim expressly
requires a “violation of any permit, standard, regulation, condition, requirement, prohibition, or
order” under RCRA. 42 U.S.C. § 6972(a)(1)(A). The EPA’s authority is not so limited, as
nothing in the corrective action provisions in question requires the facility to have violated any
18
“permit, standard, regulation, condition, requirement, prohibition, or order” before the EPA can
act. Thus, the fact that the EPA can bring an action or exercise certain authority does not mean
that a citizen can bring that same action or exercise that same authority through an (a)(1)(A)
claim.
Furthermore, Plaintiffs’ argument that they must be able to enforce these provisions
through an (a)(1)(A) claim in order to fulfill the purpose of RCRA’s citizen suits overlooks the
availability of (a)(1)(B) claims. Under that subsection, a plaintiff need not allege any violation,
and can bring an action whenever a facility has contributed to an imminent and substantial
endangerment to health or the environment. 42 U.S.C. § 6972(a)(1)(B). Such an action can
accomplish largely the same ends as the corrective action the EPA can impose through these
statutory provisions, and Plaintiffs have in fact asserted such a claim here, so they do not need
resort to subsection (a)(1)(A) to fulfill the purposes of RCRA’s citizen suits. It is also instructive
that subsection (a)(1)(B) requires a citizen suit to be based on an imminent and substantial
endangerment to health or the environment, while the EPA has the authority to impose corrective
action for any release, regardless of its severity. 42 U.S.C. § 6928(h), § 6972(a)(1)(B). If
Plaintiffs had the same authority through an (a)(1)(A) claim as the EPA has under § 6928(h),
then subsection (a)(1)(B)’s endangerment requirement would be meaningless, as all releases
would be actionable under (a)(1)(A) regardless of their effects. The Court therefore concludes for
all of these reasons that Plaintiffs have failed to state a claim for violations of § 6924(u), (v), or
§ 6928(h).
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b.
Alleged Violations of State Regulations
Plaintiffs’ complaint also cites six state regulations that Johnson Controls is allegedly in
violation of: 40 C.F.R. § 264.100, .101, and .551, and 40 C.F.R. § 265.111, .115, and .117.5
Johnson Controls addressed each provision in its motion to dismiss, but in responding to the
motion, Plaintiffs only presented any argument as to § 265.111. Johnson Controls thus argues
that Plaintiffs have waived any violations of the other provisions as bases for this claim. In their
sur-reply, Plaintiffs note that they stated in a footnote in their response brief that, as to two of the
provisions, “Plaintiffs reasonably anticipate facts developed in discovery will establish the
applicability of these provisions to [Johnson Controls’] activities.” That simply does not suffice;
the possibility that discovery could lead to facts that support a claim does not relieve a plaintiff
of the obligation to first plead that claim so as to put the defendant on notice of the claims
against it. Accordingly, the Court finds that Plaintiffs have waived any argument that Johnson
Controls is in violation of any of these regulations except for § 265.111.
Section 265.111 pertains to Johnson Controls’ obligation to undergo closure of its facility
as a facility for the treatment, storage, or disposal of hazardous waste. By way of background,
RCRA requires any facility that qualifies as a treatment, storage, or disposal facility to apply for
and receive a permit, at which point the facility becomes subject to a stringent set of regulations.
42 U.S.C. § 6925(a). Those regulations are much more burdensome than the regulations that
apply to facilities that merely qualify as generators of hazardous waste. See City of Chicago, 511
U.S. at 331–32. Thus, RCRA gave an option to facilities like Johnson Controls that initially
qualified as treatment, storage, or disposal facilities to cease the activities that qualified them for
5
These are federal regulations, but Indiana has incorporated each of them by reference as part of
the hazardous waste program authorized by the EPA under § 6926(b). 329 Ind. Admin. Code
3.1-9-1 (incorporating 40 C.F.R. part 264 by reference); 329 Ind. Admin. Code 3.1-10-1
(incorporating 40 C.F.R. part 265 by reference).
20
that designation and become subject to regulation as generators of hazardous waste instead. 40
C.F.R. § 265.110–115. Closure is the process by which a facility can do that.
Closure can itself be a demanding process, though. A facility must first prepare and
submit a detailed closure plan. 40 C.F.R. § 265.112(b). The plan must include, among other
elements, (1) a description of how each individual hazardous waste management unit at the
facility will be closed in accordance with the closure performance standards; (2) a description of
how final closure of the facility as a whole will be conducted in accordance with the closure
performance standards; (3) a detailed description of the steps needed to remove or decontaminate
all hazardous waste residues in accordance with the closure performance standards; and (4) a
detailed description of the steps necessary to ensure compliance with the closure performance
standards. Id. The performance standard against which each of these elements is measured is set
forth in § 265.111, which states:
The owner or operator must close the facility in a manner that:
(a) Minimizes the need for further maintenance, and
(b) Controls, minimizes or eliminates, to the extent necessary to protect human
health and the environment, post-closure escape of hazardous waste, hazardous
constituents, leachate, contaminated run-off, or hazardous waste decomposition
products to the ground or surface waters or to the atmosphere . . . .
40 C.F.R. § 265.111.
Once a facility submits a closure plan, the state agency must provide the public with
notice of the plan and an opportunity to submit comments and request modifications. 40 C.F.R.
§ 265.112(d)(4). The agency may also hold a public hearing if requested or at its own discretion.
Id. The agency must ensure that the plan complies with all of the applicable closure regulations,
and must approve, modify, or reject the plan. Id. Once the agency approves the plan, the facility
must then undergo closure “in accordance with the approved closure plan.” 40 C.F.R.
21
§ 265.113(a). Finally, once the facility has completed closure, it must submit “a certification that
the hazardous waste management unit or facility, as applicable, has been closed in accordance
with the specifications in the approved closure plan.” 40 C.F.R. § 265.115.
In arguing that Johnson Controls has violated its closure obligations, however, Plaintiffs
do not identify any particular deficiency by Johnson Controls as to any one of these
requirements. Plaintiffs merely cite to the general performance standard that applies to the
closure process as a whole, and argue that because contamination is still present in their
neighborhood, Johnson Controls must have violated its closure obligations in some respect.
These allegations are at too high a level of generality and are too lacking in detail to put Johnson
Controls on notice of what of its conduct is actually complained of. There are many ways a
facility could violate its closure obligations, and while the continuing presence of contamination
may be consistent with a failure to properly complete closure, it does not on its own suggest that
it is plausible, instead of merely possible, that a particular violation has occurred. The allegations
in the complaint therefore fall short of what is required to state a claim under the notice pleading
standard.
By comparison, in other cases addressing closure violations, plaintiffs have properly
plead these claims by alleging violations of particular aspects of the closure regulations. For
example, in United States v. Production Plated Plastics, Inc., 762 F. Supp. 722, 727 (W.D. Mich.
1991), the facility violated its closure obligations because it “entirely failed to implement the
approved [closure] plan.” However, Johnson Controls’ approved closure plan is not in the record
in this matter, and Plaintiffs have not alleged any respect in which Johnson Controls has failed to
comply with the plan. Similarly, in Forest Park, 881 F. Supp. 2d at 968–69, the defendant failed
to draft and maintain a written closure plan at all, and in Goodwill Indus. of Chicago & Cook
22
Cnty. v. Valspar Corp., No. 89 C 5116, 1990 WL 485455, at *2 (N.D. Ill. Mar. 9, 1990), on
which Plaintiffs heavily rely, the defendant submitted a deficient closure plan by omitting
numerous storage tanks that were required to undergo closure. But here, Plaintiffs’ complaint
alleges that Johnson Controls did submit and receive approval for a closure plan, and it does not
allege any way in which the plan was deficient. In fact, in their response brief, Plaintiffs appear
to disavow such a claim, stating that “Plaintiffs’ claim does not lie with [Johnson Controls’]
closure plans per se.” [DE 30 p. 25 n.30].
Plaintiffs back away from that statement in their sur-reply, arguing that Johnson Controls
omitted from its closure plan several additional waste management units that were required to
undergo closure. Such allegations are entirely absent from the complaint, though, and go well
beyond merely illustrating the plausibility of facts that are properly alleged within the complaint.
Therefore, the Court declines to consider those external facts as possible bases for this claim.
Because the facts alleged in the complaint fall well short of putting Johnson Controls on notice
of the actual claim against it, Count I fails to state a claim for which relief can be granted and
must be dismissed.
Johnson Controls argues further that the claim should be dismissed with prejudice
because it completed closure years ago and is now classified only as a generator of hazardous
waste. If true, that would mean the closure regulations no longer apply to it and that any closure
violations would be wholly past violations, which are not actionable under subsection (a)(1)(A).
Browning v. Flexsteel Indus., Inc., 959 F. Supp. 2d 1134, 1145–49 (N.D. Ind. 2013). In support
of this argument, Johnson Controls relies on an August 16, 2000 letter from IDEM to Johnson
Controls acknowledging Johnson Controls’ submission of a certification that it had completed
closure. In the letter, the agency stated that “total closure is completed as required by 40 CFR
23
265 subpart G” and that “the facility status is now classified as a large quantity generator.” [DE
17-2].
The Court cannot accept Johnson Controls’ argument, though, because Johnson Controls
has not cited any authority that attributes meaning to such a letter from an agency. In fact, as
Johnson Controls expressly argues, the regulations do not contemplate any formal acceptance by
the agency of a facility’s certification that it has completed closure. See 40 C.F.R. § 265.115
(requiring the facility, not the agency, to certify that closure has been completed). In addition,
under 40 C.F.R. § 265.1(b), “the standards of this part [Part 265] . . . apply to owners and
operators of facilities that treat, store or dispose of hazardous waste . . . until applicable part 265
closure and post-closure responsibilities are fulfilled . . . .” 40 C.F.R. § 265.1(b). If this provision
stated that Part 265 applies until the agency certifies that the facility’s closure responsibilities are
fulfilled, Johnson Controls’ argument might be well-taken. However, this provision requires
actual fulfillment of the closure requirements, not merely a certification by the facility or the
agency. Thus, if Plaintiffs can show that Johnson Controls has not actually completed closure,
then Part 265 still applies and Johnson Controls could be in current violation of the closure
requirements. See Cornerstone Realty, Inc. v. Dresser Rand Co., 993 F. Supp. 107, 117 (D.
Conn. 1998) (holding that “the obligation of an owner or operator of a hazardous waste facility
to close the facility continues while the facility remains unclosed with hazardous waste
remaining at the site,” and that “the failure to close the facility may constitute a continuing
violation” of the closure requirements); Valspar, 1990 WL 485455, at *4–5 (finding that the
plaintiffs adequately pled violations of the facility’s closure obligations even though the facility
had submitted a certification that it had completed closure).
24
Therefore, the Court grants the motion to dismiss as to Count I for failure to state a claim,
but dismisses the count without prejudice and grants Plaintiffs leave to amend.
B.
Count II: Subsection (a)(1)(B) Claim
Finally, Johnson Controls moves to dismiss Count II, which asserts a claim under
subsection (a)(1)(B) for contributing to an imminent and substantial endangerment to health and
the environment, for failure to comply with the statutory notice and delay period. Under
§ 6972(b)(2)(A), “No action may be commenced under subsection (a)(1)(B) of this section prior
to ninety days after the plaintiff has given notice of the endangerment . . . except that such action
may be brought immediately after such notification in the case of an action under this section
respecting a violation of subchapter III of this chapter.” 42 U.S.C. § 6972(b)(2)(A). Plaintiffs
argue in response both that Count II is respecting a violation of Subchapter III, thus qualifying
for the exception to the delay period, and that it was properly joined with Count I, which was
timely filed, making it timely as part of a “hybrid” complaint. The Court agrees with the latter
argument, so it need not also consider whether the particular (a)(1)(B) endangerment claim is
respecting a violation of Subchapter III so as to qualify for the Subchapter III exception.
Both parties agree that the Seventh Circuit’s opinion in Datacard is binding precedent on
the applicability of the statutory notice and delay provisions to a “hybrid” complaint, meaning a
complaint that contains “both a citizen suit claim subject to RCRA’s delay period and one
immune from the delay requirement.” 106 F.3d at 1351. In Datacard, the plaintiff filed suit
before the 90-day waiting period applicable to the complaint’s (a)(1)(B) claim had elapsed, but
the complaint also included an (a)(1)(A) claim respecting a Subchapter III violation, which the
plaintiff “was entitled to bring . . . without delay.” Id. Even though the (a)(1)(A) claim was
ultimately unsuccessful, the Seventh Circuit held that the timely (a)(1)(A) claim exempted the
otherwise-untimely (a)(1)(B) claim from the statutory delay requirement, so the plaintiff “was
25
not required to wait 90 days before filing its hybrid complaint.” Datacard, 106 F.3d at 1351
(adopting the Second Circuit’s reasoning in Dague v. City of Burlington, 935 F.2d 1343, 1352
(2d Cir. 1991)); see also Covington v. Jefferson Cnty., 358 F.3d 626, 637 (9th Cir. 2004) (also
adopting Dague’s rule as to hybrid complaints).
Johnson Controls accepts this premise, but argues that Plaintiffs cannot invoke the hybrid
complaint exception because their (a)(1)(A) claims are too frivolous. In Datacard, the Seventh
Circuit acknowledged the possibility for abuse of the hybrid complaint exception, and qualified
its holding by stating that “it is important to note that although [the plaintiff’s] subsection
(a)(1)(A) hazardous waste claim ultimately proved unsuccessful, it was not frivolous.” 106 F.3d
at 1351.The court thus stated: “If future plaintiffs should attempt an end run around RCRA’s
delay requirements by alleging a meritless hazardous waste claim in a hybrid complaint, the
district court could sanction the plaintiffs under Rule 11 and dismiss the case to ensure full
compliance with the delay period.” Id.
Here, although the Court has dismissed the subsection (a)(1)(A) claim for failure to state
a claim, it does not find that the claim is frivolous or deserving of sanctions under Rule 11, as
would be required to invoke this sanction. Plaintiffs’ complaint did not allege enough facts to
plead a violation of RCRA, but Johnson Controls has not shown that such a claim would be
foreclosed, and it is conceivable that Plaintiffs could adequately plead a RCRA violation in an
amended complaint. Therefore, the Court holds that Count II is timely as part of a hybrid
complaint, and declines to dismiss it for violation of the statutory delay period.
IV. CONCLUSION
As to Johnson Controls’ Motion to Strike or File Sur-Surreply [DE 55], the Court
DENIES the request to strike, but GRANTS leave to file a sur-surreply, and has considered that
filing in resolving the motion to dismiss. As to the Motion to Dismiss [DE 16], the motion is
26
GRANTED as to Count I, which is dismissed without prejudice, and DENIED as to Count II.
The Court GRANTS Plaintiffs leave to file an amended complaint by April 6, 2015.
SO ORDERED.
ENTERED: March 2, 2015
/s/ JON E. DEGUILIO
Judge
United States District Court
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