United States District Court, D. South Carolina, Spartanburg Division
Jay Easler, individually and as class representative of others similarly situated, Plaintiff,
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
TIMOTHY M. CAIN, District Judge.
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.
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 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 community:
(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. 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.) 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 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).
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.
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 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 ...