Easler v. Hoechst Celanese Corporation et al
Filing
61
ORDER denying 18 Motion to Dismiss; denying 20 Motion to Dismiss; denying 21 Motion to Dismiss; denying 22 Motion to Dismiss; denying 23 Motion to Dismiss; denying 24 Motion to Dismiss. Signed by Honorable Timothy M Cain on 8/5/2014.(gpre, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Jay Easler, individually and as class
representative of others similarly situated,
Plaintiff,
v.
Hoechst Celanese Corporation, HNA
Holdings, Inc., CNA Holdings, Inc.,
Hercules, Inc., Ashland, Inc., Hystron
Fibers, Inc., Messer Greishiem, Inc.,
Arteva Specialties S.a.r.l. d/b/a “KoSo,”
Johns Manville Corporation, INVISTA
S.a.r.l. d/b/a “Invista,” Teijin
Monofilament U.S., Inc., Teijin
Holdings USA, Inc., Auriga Polymers
Inc., Indorama Ventures USA, Inc.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 7:14-00048-TMC
ORDER
The plaintiff, Jay Easler (“Easler”), brought this suit against the above named defendants
for violations of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972,
private nuisance, public nuisance, and negligence. Before the court are several motions to
dismiss. (ECF Nos. 18, 20, 21, 22, 23, 24.) The parties have fully briefed these motions and the
court does not see a need for oral argument. See Local Civil Rule 7.08, DSC. For the reasons
that follow, the motions to dismiss are denied.1
I. BACKGROUND
Easler lives in a small community in South Carolina’s upstate called Cannon’s
Campground. Cannon’s Campground is located close to several water sources, including the
1
This excludes Ashland, Inc.’s, motion to dismiss. In his omnibus response to the motions to dismiss, Easler
stipulates to dismissing Ashland, Inc., as a defendant. (ECF No. 48, p. 26.) Accordingly, Ashland, Inc.’s, motion to
dismiss (ECF No. 21) is now MOOT.
1
Pacolet River, Cherokee Creek, and what the parties refer to as “Polluted Creek,” an unnamed
tributary of the Pacolet River. Just north of Cannon’s Campground is an industrial site that,
according to the complaint, has been operational since 1966. Easler alleges that the defendants,
Hoechst Celanese Corporation, HNA Holdings, Inc., and CNA Holdings, Inc. (collectively
“Hoechst”); Hercules, Inc. (“Hercules”); Ashland, Inc. (“Ashland”); Hystron Fibers, Inc.
(“Hystron”); Messer Greishiem, Inc.; Arteva Specialties S.a.r.l. d/b/a “KoSa” (“Arteva”); Johns
Manville Corporation (“Johns Manville”); INVISTA S.a.r.l. d/b/a “Invista” (“Invista”); Teijin
Monofilament U.S., Inc.; Teijin Holdings, USA, Inc.; Auriga Polymers Inc. (“Auriga”); and
Indorama Ventures USA, Inc. (“Indorama”), are previous or current owners or operators of the
site or are otherwise responsible for damages resulting from toxic waste entering surrounding
surface waters and the groundwater.
Based on the defendants’ alleged responsibility for the contamination, Easler has brought
the following causes of action on behalf of himself and the Cannon’s Campground community2:
(1) RCRA injunctive relief under § 6972, specifically (a) cessation of all activities contributing
to the contamination of the groundwater and surface water in the Cannon’s Campground
community, (b) commencement of a comprehensive and diligent program of delineation and
remediation of existing contamination, and (c) institution of community medical monitoring; and
(2) state causes of action for (a) public nuisance, (b) private nuisance, and (c) negligence.
The majority of the defendants have moved to dismiss Easler’s complaint, raising various
grounds.3 Hoechst has moved to dismiss the complaint in its entirety pursuant to Federal Rule of
Civil Procedure 12(b)(6) and South Carolina Rule of Civil Procedure 12(b)(6). (ECF No. 18.)
2
Easler brings this case as a proposed class action. As a motion for class certification is not yet before the court, the
court will reserve judgment as to the class allegations in the complaint.
3
The docket reflects that Easler voluntarily dismissed Teijin Monofilament US, Inc., and Teijin Holdings USA, Inc.,
on January 27, 2014. (See ECF No. 6.) In addition, although both appear on Easler’s list of defendants for service
(ECF No. 4-1), the docket does not indicate that Hystron Fibers, Inc., or Messer Greishiem, Inc., has accepted
service of the complaint or appeared in this case.
2
In its motion, Hoechst asserts that the court should dismiss (1) Easler’s RCRA claims because (a)
Easler has failed to properly plead imminent and substantial danger to health or the environment
and (b) medical monitoring is not available as a remedy under RCRA and (2) Easler’s state law
claims because (a) Easler has not pled damages to or interference with his property and (b) those
claims are barred by South Carolina’s statute of limitations. Hoechst also raises a question as to
Easler’s standing to bring this suit and, specifically, whether he has suffered an injury in fact.
Hercules, Invista, Arteva, Auriga, Indorama, and Johns Manville have joined in Hoechst’s
motion. (See ECF Nos. 20, 22, 23, 24.)
In addition to joining in Hoechst’s motion, Hercules and Johns Manville have asserted
independent grounds for dismissal. Both Hercules and Johns Manville contend that Easler has
not alleged enough facts regarding their conduct or contribution to the alleged contamination to
state claims under RCRA or state law. Johns Manville also asserts that Easler did not provide
sufficient notice under 42 U.S.C. § 6972.
II. LEGAL STANDARD
Under the federal rules, each pleading must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Accordingly,
pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim should be dismissed when the
complaint fails to allege facts upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When
considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, “the pleading standard . . . demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). Thus, the rules require more than “labels and conclusions,” “a formulaic
3
recitation of the elements of a cause of action,” or “naked assertions devoid of further factual
enhancement.” Id. at 678.
In sum, “[t]o 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.’” Id. (quoting Bell
Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). And, for a claim to have facial plausibility, the
plaintiff must plead “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
III. DISCUSSION
A.
Standing4
Before addressing the adequacy of Easler’s complaint, the court must first determine
whether Easler has standing to bring this suit. Article III of the Constitution restricts federal
courts to the adjudication of cases and controversies.
The standing doctrine upholds this
restriction by “ensur[ing] that a plaintiff has a personal stake in the outcome of a dispute, and
that judicial resolution of the dispute is appropriate.” Friends of the Earth, Inc. v. Gaston
Copper Recycling Corp., 629 F.3d 287, 396 (4th Cir. 2011) (“Gaston II”). Thus, “[t]o meet the
constitutional requirement for standing, a plaintiff must prove that: 1) he or she suffered an
‘injury in fact’ that is concrete and particularized, and is actual or imminent; 2) the injury is
fairly traceable to the challenged action of the defendant; and 3) the injury likely will be
redressed by a favorable decision.” Id.
4
The court recognizes that the majority of cases cited in this section, if not all of them, were claims brought under
the Clean Water Act’s (“CWA”) citizen suit provision, rather than under RCRA. However, like they have for the
CWA’s citizen suit provision, courts have interpreted the RCRA’s provision for citizen enforcement to grant
standing to the full extent allowed under Article III. See, e.g., Maine People’s Alliance and Natural Res. Def.
Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir. 2006) (“Because there is nothing in RCRA’s text or
history that suggests a congressional intent to erect statutory standing barriers beyond those imposed by Article III
of the Constitution . . . , we focus on what is essential to establish Article III standing.”). Thus, under either act, the
court analyzes standing pursuant to Article III’s requirements.
4
However, “[i]n the environmental litigation context, the standing requirements are not
onerous.” American Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th Cir. 2003).
Rather, “[i]f the plaintiff can show that his claim to relief is free from excessive abstraction,
undue attenuation, and unbridled speculation, the Constitution places no further barriers between
the plaintiff and adjudication of his rights.” Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp., 204 F.3d 149, 155 (4th Cir. 2000) (“Gaston I”).
Here, the defendants have voiced concerns about Easler’s assertion of an injury in fact.
“[E]nvironmental 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.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528
U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). Further, “[t]he
Supreme Court has consistently recognized that threatened rather than actual injury can satisfy
Article III requirements.” Gaston I, 204 F.3d at 160; see e.g., Babbitt v. United Farm Workers
Nat’l Unions, 442 U.S. 289, 298 (1979) (“one does not have to await the consummation of
threatened injury to obtain preventative relief. If the injury is certainly impending that is
enough.”); Covington v. Jefferson Cnty., 358 F.3d 626, 638-39 (9th Cir. 2004) (landowners who
lived across from county landfill satisfied Article III injury-in-fact requirement by showing the
risks RCRA sought to minimize threatened their enjoyment of life and security of home if
landfill not operated as required by RCRA). Thus, “[c]itizens may . . . rely on circumstantial
evidence such as proximity to polluting sources, predictions of discharge influence, and past
pollution to prove both injury in fact and traceability.” Id. at 163.
That is exactly what Easler has done here. While Easler’s property itself has not yet
tested positive for contamination, the complaint painstakingly details exactly the type of
5
circumstantial evidence discussed in Gaston I. After describing the exact location of Easler’s
property in relation and proximity to the site, the complaint spends the next fifty-eight pages
outlining the site’s history of pollution, including the exact chemicals discharged and where
those chemicals have been found in the surrounding area over the thirty-one years since the site
has been operational. The clear presumption from the complaint’s allegations is that over the
years, the contamination from the site has migrated and continues to migrate toward Cannon’s
Campground and Easler’s property. Further, the complaint alleges that the contamination has
reached Polluted Creek, which directly abuts Easler’s property, and that a monitoring well on
land adjacent to Easler’s tested positive for bedrock contamination. In addition, Easler alleges
that, should the contamination reach his property, his well will be unusable and his property will
diminish in value. In light of the circumstantial evidence presented, the court finds that Easler
has shown an injury in fact fairly traceable to contamination from the site that could be redressed
by granting the relief sought in this case.
B.
Statute of Limitations
In addition to challenging Easler’s standing, the defendants assert that his state law
claims are barred by South Carolina’s three year statute of limitations for injuries to person or
property. See S.C. Code Ann. § 15-3-350(3), (5).
“[A] motion to dismiss filed under Federal
Rule of [Civil] Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot
reach the merits of an affirmative defense, such as the defense that the plaintiff’s claim is timebarred.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). However, a court may
address a statute of limitations defense in a motion to dismiss “in the relatively rare
circumstances where facts sufficient to rule on [the defense] are alleged in the complaint.” Id.
The defendants believe this is one of those rare occasions.
6
In support of this argument, the defendants point specifically to paragraph 108 of the
complaint. That paragraph alleges, in its entirety:
The residents of the Cannon’s Campground community were
unaware of any of the details discussed in this notice until
November 16, 2010. On that date, WSPA-TV reporter Chris
Cato—an employee of the Spartanburg, South Carolina CBS
affiliate—began airing a series of reports entitled “Shadow of
Sickness” related to cancer rates in the community and the possible
relation to pollution emanating from the Site. “Shadow of
Sickness” was a five-part series that aired intermittently through
May of 2011.
(Compl., ECF No. 1, p. 50, ¶ 108.) Thus, according to the defendants, if the residents of
Cannons Campground, including Easler, became aware of the potential violations discussed in
the complaint on November 6, 2010, then they had until November 6, 2013, to file a complaint
and this complaint was not filed until January 7, 2014.
However, the court does not agree that the complaint presents all of the facts necessary to
decide the defendants’ statute of limitations defense. For instance, the complaint does not
describe the content of each part of the series. And, the description it does give—that the series
addressed cancer rates in the community—shows that the report did not directly relate to the
claims at issue in this case. The complaint also does not state when or if Easler viewed the series
or if the series should have informed him that pollution potentially threatened his property. In
sum, despite defendants’ assertion, stating that the “residents of the Cannon’s Campground
community were unaware of any of the details” in the complaint until November 16, 2010, is not
equivalent to stating that on November 16, 2010, the residents of Cannon’s Campground became
aware of enough details alleged in the complaint to trigger the statute of limitations.
Accordingly, the court will not address the potential statute of limitations issue at this juncture.
7
C.
RCRA Claims
“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).
RCRA’s primary purpose is to “reduce the generation of hazardous waste and to ensure the
proper treatment, storage, and disposal of that waste which 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)). To help further that purpose, RCRA contains a citizen suit provision, which
provides that “any person may commence a civil action on his own behalf . . . against any person
. . . , including any past or present transporter, or past or present owner or operator of a
treatment, storage, or disposal facility, who has contributed to 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).
The defendants raise two primary challenges to Easler’s claims under RCRA: (1) that he
has not properly pled an imminent and substantial danger to health or the environment and (2)
that his claim for medical monitoring is not an available remedy under the RCRA.
1.
Imminent and Substantial Danger to Health or the Environment
The majority of courts that have addressed RCRA’s imminent and substantial
endangerment language have found that it creates a broad standard, “which is intended to confer
upon the courts the authority to grant affirmative equitable relief to the extent necessary to
eliminate any risk posed by toxic wastes.” Dague v. City of Bulington, 935 F.2d 1343, 1355 (2d
Cir. 1991) (emphasis in original); see also Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199,
210 (2d Cir. 2009) (“We have indicated that the ‘imminent and substantial endangerment’
8
standard is a broad one.”); Mallinckrodt, 471 F.3d at 288 (noting that “at least four of our sister
circuits have construed [§ 6972(a)(1)(B)] expansively” and that “all four courts have emphasized
the preeminence of the word ‘may’ in defining the degree of risk needed to support [§
6972(a)(1)(B)’s] liability standard”). However, the plain language of the act still requires a
plaintiff to show an “imminent” and “substantial” “endangerment.”
In its motion to dismiss, Hoechst collapses its standing argument into its assertion that
Easler has not properly pled an imminent and substantial danger to health or the environment.
Specifically, Hoechst avers that because Easler does not allege an injury in fact, he “does not
have standing to assert a claim for imminent and substantial danger.” (Hoechst Mot. to Dismiss,
ECF No. 18-1, p. 10.)
The court agrees that Article III’s injury in fact requirement and RCRA’s imminent and
substantial danger standard rely on almost identical considerations. Much like an injury in fact
for environmental plaintiffs, “a finding that an activity may present an imminent and substantial
harm does not require actual harm.” Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir. 1994)
(citing United States v. Waste Indus., Inc., 734 F.2d 159 (4th Cir. 1984)). Rather, “[t]he RCRA
provision implies that there must be a threat which is present now, although the impact of the
threat may not be felt until later. Also, endangerment must be substantial and serious, and there
must be some necessity for the action.” Id. (emphasis in original).
Thus, as the court has already found that the complaint sufficiently pleads a present threat
of a serious harm to Easler and his property for standing purposes, it also finds that the complaint
has presented sufficient evidence of an imminent and substantial danger to health or the
environment to state a claim under RCRA.
9
2.
Medical Monitoring
In addition, the defendants contend that Easler’s claim for medical monitoring must fail
because medical monitoring is not a recognized remedy under RCRA. Easler pleads his request
for medical monitoring as a cause of action under RCRA for injunctive relief. Specifically, the
complaint states: “Because of the long term exposure of the members of the community to
numerous hazardous materials due to the actions of the defendants, it is necessary for the Court
to establish a court-administered community medical monitoring program through which
members of the proposed class may receive periodic health screening for illnesses caused by the
hazardous materials identified within this complaint.” (Compl., ECF No. 1, p. 86, ¶ 192.) The
defendants contend that this cause of action is really a claim for future damages wrapped in
equitable relief’s clothing. The question for this court, then, is whether medical monitoring is the
type of remedial injunctive relief RCRA envisions.5 After a review of relevant statutory and case
law, the court concludes that, like many in law, it depends.
The RCRA authorizes a court to “restrain 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 referred to in paragraph (1)(B), [or] to order such person to take such
other action as may be necessary.” 42 U.S.C. § 6972(a). Thus, “a private citizen suing under §
6972(a)(1)(B) could seek a mandatory injunction, i.e., one that orders a responsible party to ‘take
action’ by attending to the cleanup and proper disposal of toxic waste, or a prohibitory
injunction, i.e., one that ‘restrains’ a responsible party from further violating RCRA.” Meghrig,
516 U.S. at 485.
5
The court notes that if Easler intended to plead medical monitoring as a state law claim, this claim would fail
because South Carolina has yet to recognize a cause of action for medical monitoring. See Rosmer v. Pfizer, Inc.,
No. CIV. A. 9:99-2280-18RB, 2001 WL 34010613, *5 (D.S.C. March 30, 2001).
10
A number of courts have considered the appropriateness of ordering defendants to
implement or support some sort of medical monitoring program in response to a release of
environmental contaminants potentially harmful to human health. As the defendants note, the
most relevant case here is Werlein v. United States, 746 F. Supp. 887 (D. Minn. 1990), vacated
in part on other grounds, Werlein v. United States, 793 F. Supp. 898 (D. Minn. 1992). In
Werlein, like here, the plaintiffs requested medical monitoring as a form of injunctive relief
under RCRA. The proposed program required the defendants to pay a lump sum of cash into a
fund, and that persons eligible for medical monitoring use that pot of cash to obtain
reimbursement costs incurred as the result of medical screening examinations. The court made
short work of the plaintiffs’ claim, finding that “[p]ayment of cash by one party to reimburse
other parties for costs incurred is not injunctive relief.” Id. at 895.
In Werlein, the court also carefully distinguished the plaintiffs’ proposed medical
monitoring fund from one approved by the Northern District of California in Barth v. Firestone
Tire & Rubber Co., 661 F. Supp. 193 (N.D. Cal. 1987). In the court’s view, the two funds
differed in their purpose and degree of necessity. Barth involved a group of plaintiffs exposed to
benzene, a toxin about which not much was known at the time the case was filed, and the
proposed fund “would provide for a Medical Monitoring Program which will gather and forward
to treating physicians information relating to the diagnosis and treatment of diseases which may
result from the plaintiff’s exposure to toxins.” Barth, 661 F. Supp. at 203. In response to the
plaintiffs’ reliance on Barth, the court in Werlein conceded that “[i]n a case where a number of
persons are exposed to a toxin about which little is known, and it is necessary to gather and share
information regarding diagnosis and treatment through screening, the Court would consider
framing a medical monitoring and information sharing program as injunctive relief.” Werlein,
11
746 F. Supp. at 895. But, because the consequences of exposure to the toxin at issue in Werlein
were well-documented, the court reasoned that the proposed fund would merely screen for early
signs of those consequences, and thus could not be authorized as injunctive relief under RCRA.
Id.
After reviewing these cases and others, the Western District of New York concluded that
“[a] court-administered fund which goes beyond payment of the costs of monitoring an
individual plaintiff’s health to establish pooled resources for the early detection and advances in
treatment of the disease is injunctive in nature rather than ‘predominantly money damages.’”
Gibbs v. E.I. DuPont de Nemours & Co., Inc., 876 F. Supp. 475, 481 (W.D.N.Y. 1995).
The court finds that this view comports with RCRA’s purpose and its grant of expansive
equitable authority to the courts to carry out that purpose. See U.S. v. Waste Indus., Inc., 734
F.2d 159, 163-66 (4th Cir. 1984); U.S. v. Price, 688 F.2d 204, 210-12 (3rd Cir. 1982). However,
in this order, the court finds only that Easler’s claim for medical monitoring is not subject to
summary dismissal. The court offers no opinion at this point in the litigation as to whether it will
withstand future scrutiny or prove an appropriate remedy on the facts presented in the case of
RCRA liability.6
D.
State Law Claims
In addition to his RCRA claims, Easler has brought three state law causes of action: (1)
public nuisance, (2) private nuisance, and (3) negligence. The defendants move to dismiss all
6
In addition, the defendants assert that the Fourth Circuit has already resolved this issue by stating that “[a] claim
for medical surveillance costs is simply a claim for future damages.” Ball v. Joy Techs., Inc., 958 F.2d 36, 39 (4th
Cir. 1991). Much like the program proposed in Werlein, the medical surveillance in Ball would have required the
defendants to cover the costs of periodic medical examinations designed to monitor the plaintiffs’ health and
facilitate early detection of disease caused by the plaintiffs’ exposure to toxic chemicals. However, the primary
question before the Fourth Circuit in Ball was whether, under West Virginia or Virginia common law, the plaintiffs
could recover the reasonable value of future medical expenses where they failed to show any present, physical
injury. Thus, the court does not find that Ball is dispositive of the relevant question in this case—whether medical
monitoring can be a proper form of injunctive relief.
12
three causes of action because Easler has failed to allege any damage to or interference with his
property.
“A nuisance is ‘anything which works hurt, inconvenience, or damages; anything which
essentially interferes with the enjoyment of life or property.’” Strong v. Winn-Dixie Stores, Inc.,
125 S.E.2d 628, 632 (S.C. 1962) (quoting State v. Columbia Water Power Co., 63 S.E. 884, 889
(S.C. 1909)). In addition, “[a] private person may bring a private civil suit for a public nuisance
only if he suffered a special injury to his real or personal property.” Carnival Corp. v. Historic
Ansonborough Neighborhood Ass’n, 753 S.E. 2d 846, 852 (S.C. 2014). “A special injury is
‘individual or specific damage in addition to that suffered by the public’ and must be ‘of a
special character, distinct and different from the injuries suffered by the public generally.’” Id.
(internal citations omitted). And, to state a viable clam for negligence, a landowner must plead
some damage to his property. See Ravan v. Greenville Cnty., 434 S.E.2d 296, 307 (S.C. Ct. App.
1993).
“A well-known principle of property law is that property consists of a bundle of rights.”
Babb v. Lee Cnty. Landfill SC, LLC, 747 S.E.2d 468, 474-75 (S.C. 2013). For owners of land
abutting a body of water, that bundle of rights includes a “special right[],” “distinct from those
rights that may be enjoyed by the public at large,” to make reasonable use of the water
surrounding their property. White’s Mill Colony Inc. v. Williams, 609 S.E.2d 811, 817 (S.C. Ct.
App. 2005). Further, a landowner’s interest in use and enjoyment of his property includes an
interest in being free “from discomfort and annoyance while using [his] lands.” Babb, 747
S.E.2d at 473 (quoting Restatement (Second) of Torts § 821D (1979)).
Damage to or
interference with any of these rights may constitute tort damages under a nuisance or negligence
theory.
13
The defendants assert that Easler has not successfully pled interference with his property
rights because his complaint does not state specifically that he uses the stream next to or the
groundwater under his property. In addition, relying on one sentence in one Fourth Circuit
opinion, the defendants assert that Easler’s state law claims cannot survive because he has not
identified enough contamination on his property to rise to the level of toxicological concern.
And, without any of these additional bases, the defendants claim Easler cannot rely on alleged
diminution of property value.
The court finds these arguments unavailing, especially at the motion to dismiss stage. In
deciding this motion, the court is tasked with evaluating the plausibility of Easler’s claims, not
their precise factual nature, and must construe the allegations and all reasonable inferences
therefrom in a light favorable to Easler. With this in mind, the court finds that Easler has
sufficiently pled that the surface and ground water next to and possibly under his property is
sufficiently contaminated to plausibly interfere with his property rights.
In addition, the court does not find In re Wildewood Litig., 52 F.3d 499 (4th Cir. 1995),
either controlling or persuasive at this point in the litigation. The court decided In re Wildewood,
after a motion for summary judgment and the presentation of expert testimony on contamination
and diminution of property value. As nuisance and negligence claims are both fact-intensive
inquiries, the court is not convinced to discard these claims based on the somewhat similar facts
of another case without further factual development of the record in this matter.
E.
Hercules
In addition to joining in Hoechst’s motion to dismiss, Hercules has moved separately for
the court to dismiss all claims against it. Hercules asserts that Easler’s RCRA claims fail as to
Hercules because the complaint does not allege that Hercules has contributed to waste disposal
14
on the site. Further, because the complaint does not allege wrongful conduct by Hercules,
Easler’s state law claims must fail. And, in particular, Easler’s nuisance claims fail because the
complaint does not allege that Hercules had control of the property at the time the alleged
nuisance was created. In addition, Hercules contends that it cannot be subject to a mandatory
injunction to cease activities or conduct remediation on a property it has not had any relation to
in forty years.
According to the complaint, on September 30, 1965, Hercules sought permission to
dispose of industrial wastewater from the site into the Pacolet River. Then, in 1966, Hercules
constructed a dimethyl terephthalate (“DMT”) production facility on the southeastern part of the
property.
On May 22, 1970, Hercules sold a portion of the site to Hystron Fibers, Inc.
Sometime thereafter, but in the “early 1970s,” American Hoechst Corporation purchased the site
and constructed a fiber production area. In 1978, American Hoechst Corporation ceased all onsite DMT production and partially dismantled the DMT facility. On November 13, 2008,
Ashland, Inc., acquired Hercules. Those are the only allegations in the complaint directly
pertaining to Hercules.
Thus, Hercules asserts that the complaint does not specify the when, where, what, or how
of Hercules’s contribution to hazardous waste at the site. The court disagrees. While the
complaint does not contain additional allegations regarding Hercules itself, it does clearly allege
that a portion of the contamination stemmed from Hercules’s DMT plant, even after it was
deactivated and partially disassembled. The court finds that these allegations are enough to
sustain Easler’s claims against Hercules at the motion to dismiss stage. In addition, having
found that Easler has sufficiently pled that Hercules may have contributed to the disposal of
waste at the site, the court finds that, if proven, the court would have authority under RCRA to
15
enjoin Hercules in some way. The exact parameters or necessity of that injunction are not
properly before the court at this time.
F.
Johns Manville
Like Hercules, Johns Manville moves to dismiss Easler’s claims against it on the grounds
that the complaint does not tie any of Johns Manville’s alleged conduct to any of the alleged
wrongs. In addition, Johns Manville asserts that Easler is barred from bringing RCRA claims
against it because he failed to provide sufficient notice under 42 U.S.C. § 6972 and 40 C.F.R. §
254.3.
With regard to Johns Manville, the complaint alleges that: (1) “[d]uring or about 2000,
KoSa sold a portion of the Site to Johns Manville Corporation” and (2) “Johns Manville
discharges wastewater into the Site’s wastewater treatment plant to the present day.” (Compl.,
ECF No. 1, ¶ 12.) In addition, while the complaint acknowledges that the site is subject to an
NPDES permit and DHEC regulation, it also alleges multiple violations of the NPDES permit.
In particular, the complaint alleges at least one violation resulting directly from the wastewater
treatment facility only three years after Johns Manville allegedly acquired a portion of the site
from KoSa and began discharging its wastewater there. (See ECF No. 1, ¶¶ 89-90.) The court
finds that the complaint alleges sufficient facts on which to base Easler’s RCRA and state law
claims against Johns Manville.
Likewise, the court finds that Easler’s pre-suit notice satisfied the relevant statutory and
regulatory conditions. Pursuant to 40 C.F.R. § 254.3, the notice
shall include sufficient information to permit the recipient to
identify . . . 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.
16
40 C.F.R. § 254.3(a). Here, Easler’s pre-suit notice, just like the complaint, alleged that Johns
Manville owned a portion of the property and discharged wastewater there. Thus, it clearly
alleged the conduct constituting the claimed violation. In addition, the notice alleges that the
identified alleged conduct has taken place from 2000 to the present. And, although the notice did
not attempt to connect each defendant to each contaminant, it did include a list of the
contaminants on which Easler intended to base his suit. The court concludes that Easler’s notice
included sufficient information regarding the basis for his intent to sue Johns Manville.
IV. CONCLUSION
For the forgoing reasons, the defendants’ motions to dismiss (ECF Nos. 18, 20, 21, 22,
23, 24) are DENIED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
August 5, 2014
Anderson, South Carolina
17
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?