Stark-Tusc-Wayne Joint Solid Waste Management District et al v. American Landfill, Inc. et al
Filing
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Memorandum Opinion and Order Because Plaintiffs' notice letter failed to provide the Moving Defendants, including WM Ohiothe only Moving Defendant named in the noticewith sufficient information as required by Congress, the Court grants the Moving Defendants' motion as to lack of subject matter jurisdiction and denies the remaining jurisdictional claims as moot. ECF No. 60 . Judge Benita Y. Pearson on 9/26/2012. (S,L)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
STARK-TUSC-WAYNE JOINT SOLID
WASTE MANAGEMENT DISTRICT, et
al.,
Plaintiffs,
v.
AMERICAN LANDFILL, INC., et al.,
Defendants.
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CASE NO. 5:10CV00119
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER (Resolving ECF No. 60)
Plaintiffs1 filed this action against USA Waste-Management Resources, LLC (“WM
Resources”); WM Corporate Services, Inc. (“WM Corporate”); Waste Management National
Services, Inc. (“WM National”); and Waste Management of Ohio, Inc. (“WM Ohio”)
(collectively referred to as the “Moving Defendants”); as well as American Landfill, Inc.
(“ALI”); and Waste Management, Inc.(“WMI”) (collectively “Defendants”) pursuant to 42
U.S.C. § 6972(a)(1)(A) and (B), alleging violations of the Resource Conservation and Recovery
Act (“RCRA”), 42 U.S.C. § 6901, et seq., and Ohio law pertaining to solid waste management.
ECF No. 50. Plaintiffs’ First Amended Complaint alleges that Defendants improperly handled
and disposed of solid and hazardous waste, hazardous waste constituents, landfill gas, leachate,
contaminants and other hazardous substances at ALI. 50 at 3, ¶3. Plaintiffs are seeking
injunctive relief in numerous forms. ECF No. 50 at 32-34.
1
Plaintiffs in the instant matter include: Stark-Tuscarawas-Wayne Joint Solid Waste
Management District; Citizens Against American Landfill Expansion; Jill Van Voorhis; and
Vivian Baier. See ECF No. 50 at 4-7.
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In this environmental action, the Moving Defendants seek to dismiss the matter pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2) for lack of subject matter and personal
jurisdiction. ECF No. 60. Plaintiffs have filed an opposition (ECF No. 78); Moving Defendants
have replied (ECF No. 84). For the following reasons, the Court grants the Moving Defendants’
motion as to lack of subject matter jurisdiction and denies the remaining jurisdictional claims as
moot.
I. Factual and Procedural Background
Plaintiff Stark-Tuscarawas-Wayne Joint Solid Waste Management District is a joint solid
waste management district. ECF No. 50 at 4. It was established pursuant to Ohio law as a
political subdivision for the purposes of preserving and promoting public welfare by providing
safe and sanitary management of solid wastes within all of the incorporated and unincorporated
territory of Stark, Tuscarawas and Wayne Counties. ECF No. 50 at 4. Defendants own and/or
operate a disposal waste facility (“Facility”) in Waynesburg, Ohio, disposing of solid and
hazardous waste.2 ECF No. 50 at 2-3. Plaintiffs are concerned about the operations of the
Facility–specifically, the environmental and human health effects of Defendants’ handling,
storage, treatment, transportation, and disposal of solid or hazardous waste. ECF No. 50 at 3, 5.
2
Plaintiffs explain that the Facility includes all areas operated over the various years
under the names “Breitenstine Landfill,” “ALI,” and/or “American Landfill, Inc.” The term
“Facility” also includes all contiguous land and structures, other appurtenances, and
improvements on the land used for the disposal of solid waste, including, but not limited to:
leachate and/or condensate collection; handling or storage; waste mixing; waste disposal or other
waste handling activities. ECF No. 50 2-3.
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Plaintiffs took action on or about June 30, 2009, by serving a notice of violations of the
RCRA and Ohio’s solid and hazardous waste laws, along with an intent to file a citizen
enforcement suit against ALI, WMI, WM Ohio, and Waste Management Holdings, Inc., as
required by the RCRA notice provisions.3 ECF Nos. 78-2 at 2; 50 at 25, 31-32; see 42 U.S.C. §
6792(b). The notice letter explained that “chemical constituents in the gas and leachate
generated from the hazardous and solid wastes and mixtures of such wastes disposed of at the
Facility . . . are escaping the Facility . . . [and] are contaminating the groundwater, air, soil, and
surface water in the vicinity of the Facility.” ECF No. 78-2 at 4. Further, the notice letter stated
that such contamination is a result of ALI’s and WMI’s “improper handling treatment, storage,
disposal and discharge of pollutants” that may present an imminent and substantial endangerment
to human health and the environment, in violation of 42 U.S.C. § 6972(a)(1) and Ohio law. ECF
No. 78-2 at 4, 8-15. The notice letter also alleged that WM Ohio, Waste Management Holdings,
Inc., and other WMI subsidiaries are further responsible for the current and ongoing violations.
ECF No. 78-2 at 16. In sum, the purpose of the notice was to seek injunctive relief abating the
alleged endangerment and require ALI, WMI, and the WMI subsidiaries to take corrective
measure. ECF No. 78-2 at 16.
3
The RCRA is a “comprehensive environmental statute that governs the treatment,
storage, and disposal of solid and hazardous waste.” Meghrig v. KFC Western, Inc., 516 U.S.
479, 483 (1996) (internal citations omitted). The RCRA’s primary purpose is to “reduce the
generation of hazardous waste” in the first instance, “and to ensure the proper treatment, storage,
and disposal”of whatever waste is nonetheless generated “so as to minimize the present and
future threat to human health and the environment.” Id. (quoting 42 U.S.C. § 6902(b)).
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On January 19, 2010 Plaintiffs filed their original Complaint. ECF No. 1. The
Complaint contained allegations similar to those that Plaintiffs set forth in their notice letter.
Thereafter, Plaintiffs filed an Amended Complaint adding new party defendants, i.e., the Moving
Defendants, on April 8, 2011.4 ECF No. 50. In response, the Moving Defendants motioned to
dismiss the matter for two jurisdictional reasons: (1) lack of subject matter jurisdiction because
Plaintiffs’ notice letter did not sufficiently comply with mandatory statutory notice requirements
and (2) lack of personal jurisdiction.5 ECF No. 60.
II. Discussion
A. Standard of Review
Fed.R.Civ.P. 12(b)(1) provides for dismissal of a claim for lack of subject matter
jurisdiction that may consist of either a “facial attack” or a “factual attack.” O’Bryan v. Holy
See, 556 F.3d 361, 375 (6th Cir. 2009). “A facial attack on the subject-matter jurisdiction
alleged in the complaint questions merely the sufficiency of the pleading.” Id. at 375-76. “A
factual attack, on the other hand, is not a challenge to the sufficiency of the pleading’s
allegations, but a challenge to the factual existence of subject matter jurisdiction.” U.S. v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). In a factual challenge, the pleading itself may have
adequately alleged the presence of subject matter jurisdiction, but the actual facts and allegations
4
The Moving Defendants are all subsidiaries of WMI. ECF No. 50 at 4-11. The docket
reflects that the June 2009 notice was the only notice letter served in the instant matter. See ECF
No. 60-2 at 3.
5
The Moving Defendants’ lack of personal jurisdiction claim is limited to Defendants
WM Resources and WM Corporate. ECF No. 60-1 at 10-17. The Court’s discussion will first
focus upon allegations of the lack of subject matter jurisdiction argument.
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before the court may belie that averment and compel dismissal. See Ohio Nat. Life. Ins. Co. v.
U.S., 922 F.2d 320, 325 (6th Cir. 1990).
In the instant matter, the Moving Defendants’ motion presents a factual attack. ECF No.
60-1 at 8. When the motion presents a factual attack, the allegations in the complaint are not
afforded a presumption of truthfulness and the court weighs the evidence to determine whether
subject matter jurisdiction exists. Ritchie, 15 F.3d at 598 (internal citations omitted). On a
factual attack, the court has broad discretion to consider extrinsic evidence, including affidavits
and documents, and can conduct a limited evidentiary hearing if necessary. See DLX, Inc. v.
Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); Ohio Nat’l Life Ins. Co., 922 F.2d at 325 (6th Cir.
1990). The instant motion lodges a factual challenge.
B. The Notice Requirement
Under the RCRA, any person may commence a civil action on his own behalf against 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[.]” See 42 U.S.C. §
6972(a)(1)(B). Such a claim requires the plaintiff to provide notice of a violation at least ninety
(90) days prior to commencing the lawsuit to the following: (1) the Administrator; (2) the state
in which the alleged violation occurred; and (3) to any person alleged to have contributed or to be
contributing to the past or present handling, storage, treatment, transportation, or disposal of any
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solid or hazardous waste.6 42 U.S.C. § 6972(b)(2)(A)(i-iii). Compliance with the notice
requirements of the RCRA is a mandatory condition precedent for suit. Hallstrom v. Tillamook
Cnty., 493 U.S. 20, 28-9, 33 (1989); see also Walls v. Waste Resource Corp., 761 F.2d 311, 316
(6th Cir. 1985).
The Supreme Court has explained that notice and delay requirements such as these were
designed by Congress “to strike a balance between encouraging citizen enforcement of
environmental regulations and avoiding burdening the federal courts with excessive numbers of
citizen suits.” Hallstrom, 493 U.S. at 29. Requiring citizens to comply with the notice and delay
requirements serves this Congressional goal in two ways:
First, notice allows Government agencies to take responsibility for enforcing
environmental regulations, thus obviating the need for citizen suits. Second,
notice gives the alleged violator “an opportunity to bring itself into complete
compliance with the Act and thus likewise render unnecessary a citizen suit.
This policy would be frustrated if citizens could immediately bring suit without
involving federal or state enforcement agencies.
Hallstrom, 493 U.S. at 29 (citing and quoting Gwaltney of Smithfield, Inc. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 60 (1987)).
1. Contents of Notice
The RCRA does not describe the required content of the notice letter. The Environmental
Protection Agency (“EPA”) has promulgated requirements for proper notice, which are set forth
in Title 40 of the Code of Federal Regulations (“C.F.R.”), Chapter 1, § 254. The Sixth Circuit
6
Suits brought under subsection (a)(1)(A), such as an open dumping claim, are subject to
the same notice requirements; however, the applicable delay period is sixty (60) days instead of
ninety (90) days. 42 U.S.C. § 6972(b)(1)(A).
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has stated that “regulations published in the Code of Federal Regulations have the force and
effect of law . . . . ” Moody v. U.S., 774 F.2d 150, 156 (6th Cir. 1985) (internal citations and
quotations omitted). Pursuant to the regulation, the notice shall include:
sufficient information to permit the recipient to identify the specific permit,
standard, regulation, condition, requirement, or order which has allegedly been
violated, the activity alleged to constitute a violation, the person or persons
responsible for the alleged violation, the date or dates of the violation, and the full
name, address, and telephone number of the person giving notice.
40 C.F.R. § 254.3(a).
Without detailing what constitutes “sufficient information,” the Sixth Circuit held that a
notice letter’s contents must give the appropriate governmental agencies an opportunity to act
and the alleged violator to an opportunity to comply. Walls, 761 F.2d at 317 (“[t]he citizen suit
notice provisions were intended to give the EPA an opportunity to resolve issues regarding the
interpretation of complex environmental standards by negotiation, unhindered by the threat of an
impending private lawsuit.”). The Congressional goals described in Hallstrom and echoed in
Walls are defeated when the notice, due to its vagueness or its lack of essential detail, does not
provide the alleged violator with enough information upon which it can act. Hallstrom, 493 U.S.
at 26, 30-32; Walls, 761 F.2d at 317.
Whether the notice letter satisfies the “sufficient information” requirement with respect to
the Moving Defendants is the principle concern before the Court. In light of the Sixth Circuit’s
statutory guidance, the Court will separately consider each facet of the regulation describing
notice content.
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a. Sufficient Information to Permit the Recipient to Identify the
Specific Permit, Standard, Regulation, Condition, Requirement, or
Order which has Allegedly been Violated
Plaintiffs argue that the following portion of the notice letter provides the Moving
Defendants with sufficient information:
WMI is the sole shareholder of a Delaware corporation named Waste
Management Holdings, Inc. (“WM Holdings”), also headquartered in Houston,
Texas. WM Holdings, in turn, is the sole shareholder of Waste Management of
Ohio, Inc. ([“]WMO”), which is an Ohio corporation. ALI, an Ohio corporation,
is a wholly-owned subsidiary of WMO. WM Holdings, WMO and other WMI
subsidiaries (collectively the “WMI Subsidiaries”) also engaged in and are
responsible for the activities, current and ongoing violations, actual and threatened
human and environmental exposure, and air, soil, groundwater and surface water
contamination described above. The factual and legal details of Waste
Management’s current and past control of these entities are best known by WMI
and such related entities.
ECF Nos. 78 at 10-11; 78-2 at 16. Plaintiffs further contend that the aforementioned information
permits Don Carpenter, Vice President of WMI and WM Ohio and the recipient of the notice
letter, to identify the person or persons responsible for the alleged violations. ECF No. 78 at 4,
11 (“Carpenter, as recipient of the notice, would have no difficulty in understanding that WM
Resources and WM Corporate were the WM subsidiaries responsible for the activities identified
in the notice, given that he was president of both of those entities.”).
The Moving Defendants argue that Plaintiffs’ generic, catch-all reference to the Moving
Defendants does not serve the fundamental purpose of giving the appropriate governmental
agencies an opportunity to act and the alleged violator an opportunity to comply because
Plaintiffs failed to: (1) identify the Moving Defendants by name, not including WM Ohio; and
(2) ascribe any specific, unlawful conduct in violation of a specific regulation to potentially cure.
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ECF No. 84 at 5-6. The Moving Defendants highlight that, in contrast, Plaintiffs devoted
fourteen out of seventeen pages to detailing ALI’s and WMI’s allegedly unlawful conduct in
connection with specific code provisions. ECF Nos. 84 at 5; 78-2. Accordingly, the Moving
Defendants contend that Plaintiffs’ notice letter, as to them, is contrary to the contents notice
provision because it fails to identify a specific regulatory violation. ECF No. 84 at 7.
Plaintiffs’ catch-all, single-sentence assertion fails to satisfy the statute and the
precedential purpose of providing notice. See ECF No. 78-2 at 16 (“[The WMI Subsidiaries]
also engaged in and are responsible for the activities, current and ongoing violations, actual and
threatened human and environmental exposure, and air, soil, groundwater and surface water
contamination described above.”). The specific and numerous regulatory violations discussed
within the first fifteen pages of the notice letter exclusively and narrowly stem from ALI’s and
WMI’s activity, leaving one uninformed which alleged regulatory violations, if any, apply to the
Moving Defendants. See ECF No. 78-2 at 1-15. As a result, Plaintiffs’ notice letter does not
provide the Moving Defendants with sufficient information of a specific regulatory violation.
b. The Activity Alleged to Constitute a Violation
The Moving Defendants argue that Plaintiffs did not clearly allege that the Moving
Defendants’ activity constituted a violation, but rather conclusively stated that the Moving
Defendants engaged in unlawful conduct and relied upon the recipients ability to identify the
subsidiaries responsible for the activity and the activity itself. ECF No. 84 at 6. Stated
differently, generically claiming that “other WMI subsidiaries” are also responsible for alleged
violations without providing any description of unlawful conduct attributable to that entity is
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insufficient information. The recipient must be given enough detail about the alleged violation
so that it can be corrected. Walls, 761 F.2d at 316-317. Plaintiffs’ general reference to air, soil,
groundwater and surface water contamination fails to specifically identify the Moving
Defendants’ activity that constitutes a violation and does not provide the Moving Defendants
with information upon which it can act.7 See 40 C.F.R. § 254.3; see also Sierra Club v. Hamilton
County Bd. of County Com’rs, 504 F.3d 634, 644 (6th Cir. 2007) (detailing the sufficiency of
notice pursuant to the Clean Water Act, relying upon the Code of Federal Regulation’s
“sufficient information” requirement).8
7
Plaintiffs’ notice letter throughly delineates ALI’s and WMI’s alleged unlawful activity.
See 78-2 at 1-15.
8
In Sierra Club, the Sixth Circuit discusses the Congressional compromise between
encouraging citizen enforcement and avoiding an excessive number of citizen suits under the
Clean Water Act (“CWA”). Courts have viewed the CWA notice requirements as analogous to
the RCRA notice requirements, as they are similar in nature and have almost identical language.
See, e.g., 40 CFR § 254.3(a) (RCRA) and 40 CFR § 135.3(a) (CWA). See also Hallstrom, 493
U.S. at 28; Walls, 761 F.2d at 316.
Plaintiffs point out RCRA relies upon the notice provision for citizen suits contained in
42 U.S.C. § 6972(c), while CWA’s notice provision for citizen suits is contained in 33 U.S.C.
§1365(b). Plaintiffs argue these statutory notice provisions are different— the CWA provisions
require notice content to adhere to administrative guidelines, the RCRA statute does not. ECF
No. 78 at 12-3. A reading of the full applicable statutes does not inform the Court conclusively
that this is the case. Rather, the statutes both contain specific notice provisions and require that
“[n]otice under this subsection shall be given in such a manner as the Administrator shall
prescribe by regulation.” 42 U.S.C. § 6972(c); 33 U.S.C. §1365(b).
The “subsection” referred to in the aforementioned sentence appears to be the notice
subsection itself. In a previous sentence, section 6972(c) discusses “paragraph (a)(2);” section
1365(b) discusses “sections 1316 and 1317(b).” Plaintiffs do not believe the notice requirement
in section 1356(b) only applies to sections 1316 and 1317(b) —yet Plaintiffs urge the Court to
read the notice requirement in section 6972(c) as only applying to paragraph (a)(2). ECF No. 78
at 12-3. Without more, the Court declines to do so.
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c. The Person or Persons Responsible for the Alleged Violation
Plaintiffs’ notice letter described the “WMI Subsidiaries” as Waste Management
Holdings, Inc., WM Ohio., and “other WMI subsidiaries.” ECF No. 78-2 at 16. In their response
to the Moving Defendants motion, Plaintiffs explain that the “WMI Subsidiaries” responsible for
the alleged violation include WM Resources and WM Corporate. ECF No. 78 at 3. According
to Don Carpenter’s affidavit, WM Corporate was formed in 2010. ECF No. 60-2 at 2, ¶7.
Plaintiffs sent their notice letter on June 30, 2009. ECF No. 78-2. Plaintiffs are, therefore,
mistaken in their contention that “WMI Subsidiaries” includes WM Corporate because the entity
did not exist at the time Plaintiffs sent the notice letter. Similarly, because WM Resources was
not identified, the Moving Defendants are left to speculate as to the person or persons responsible
for the alleged violation. ECF No. 84 at 5-6. Plaintiffs’ failure to identify and link the individual
Moving Defendants to any particular statutory violation is insufficient and contrary to the
Congressional goals described above.
d. The Date or Dates of the Violation
Plaintiffs’ notice letter does not include specific dates of the WMI Subsidiaries’ alleged
violations. Instead, Plaintiffs stated that the WMI Subsidiaries are engaged in “current and
ongoing violations.” ECF No. 78-2 at 16. In Frilling v. Honda of Am. Mfg., Inc., the court held
that allegations stating that a violation occurred on a “nearly daily” basis and that other violations
occurred on a “continuous” or “intermittent” basis are “insufficient to satisfy the requirement that
the Plaintiffs provide sufficient information to allow the Defendant to identify the date or dates of
the alleged violations.” Frilling, Case No. C-3-96-181, 1996 WL 1619348, *6 (S.D. Ohio Oct.
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21, 1996) (analyzing notice content pursuant to the Clean Water Act). Here, Plaintiffs’ failure to
identify the date or dates of the alleged violations suggests that the WMI Subsidiaries are
required to examine their records within an ambiguous time frame, which is contrary to the
sufficient information requirement described above. Therefore, Plaintiffs’ lack of essential detail
as to specific dates of the alleged violations does not the provide the Moving Defendants with
enough information upon which it can act. 40 CFR § 254.3; Hallstrom, 493 U.S. at 26, 30-32;
Walls, 761 F.2d at 317.
The Court finds that Plaintiffs’ notice letter failed to provide the Moving Defendants with
sufficient information in order to identify the specific regulation they allegedly violated; the
person or persons responsible for the alleged violation; and the date or dates of the violation.
Additionally, the notice letter is contrary to the Congressional goals described in Supreme Court
and Sixth Circuit precedent. As a consequence of the EPA’s duly authorized regulation, the
instant Court does not have subject matter jurisdiction over the Moving Defendants.
Importantly, the dismissal of the Moving Defendants from the action will not prohibit
Plaintiffs from giving appropriate notice to such Defendants and filing its suit in compliance with
RCRA’s notice and delay requirements upon future discovery of potential violations of the
federal environmental laws. See Hallstrom, 493 U.S. at 32.
2. Service of Notice and Personal Jurisdiction
The EPA has also promulgated a service of notice regulation. See 40 C.F.R. 254.2(a). In
addition to a contents of notice claim, the Moving Defendants argue that Plaintiffs’ service of
notice was inadequate. ECF Nos. 60-1; 84. Because the Court has determined that it lacks
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subject matter jurisdiction over the Moving Defendants, the Court need not reach the Moving
Defendants other jurisdictional claims.
III. Conclusion
Because Plaintiffs’ notice letter failed to provide the Moving Defendants, including WM
Ohio–the only Moving Defendant named in the notice–with sufficient information as required by
Congress, the Court grants the Moving Defendants’ motion as to lack of subject matter
jurisdiction and denies the remaining jurisdictional claims as moot. ECF No. 60.
IT IS SO ORDERED.
September 26, 2012
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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