Opinion
Civil No. 3:00-CV-2029-H
April 19, 2002
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant QuikTrip's Motion to Dismiss, filed November 20, 2001; Plaintiffs' Response filed December 10, 2001; and Defendant QuikTrip's Reply filed December 19, 2001. Also before the Court is Plaintiffs' Brief on Supplemental Jurisdiction, filed April 8, 2002; and Defendant's Response thereto, filed April 12, 2002. The Court heard oral argument on Defendant's Motion to Dismiss on March 22, 2002. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Defendant's Motion to Dismiss should be DENIED.
Also before the Court is Defendant QuikTrip Corporation's Motion to Dismiss Complaint in Intervention, filed March 22, 2002 in which Defendant raises substantially the same arguments asserted in the Motion to Dismiss filed against the Plaintiffs. The Court's instant Memorandum Opinion and Order will address Defendant's March 22, 2002 Motion, unless Defendant provides sufficient reasons otherwise within 10 days of the filing of this Order.
I. BACKGROUND
This case derives from an alleged spill of 600,000 gallons of methyl tertiary butyl ether ("MTBE") treated gasoline into East Caddo Creek and Lake Tawakoni, the atmosphere, and the properties of the Plaintiffs on or about March 9, 2000. (Pls. Second Am. Compl. at 3). All Plaintiffs reside in Hunt County, Texas. Plaintiffs allege that Defendant QuikTrip Corporation ("QuikTrip") owned the MTBE treated gasoline and assert claims against QuikTrip under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972 (a)(1)(B), and various state law causes of action, including nuisance, trespass, gross negligence, and strict liability/defective product. (Compl. at 14-17). Plaintiffs assert jurisdiction pursuant to 28 U.S.C. § 1331.
Defendant moves to dismiss claims against it under the Oil Pollution Act ("OPA"), 33 U.S.C. § 2701, et seq., but Plaintiffs state that they did not assert claims against Defendant QuikTrip under the OPA. The Court, therefore, need not reach this issue.
Title 42 U.S.C. § 6972 (a)(1) provides:
Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf —
(B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transported, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent or substantial endangerment to health or the environment.
Defendant moves to dismiss Plaintiffs' claims under RCRA asserting that they are barred under the statute because removal and remediation has begun and that the remaining state law claims should be remanded for lack of subject matter jurisdiction. See FED. R. Civ. P. 12(b)(1). Plaintiffs contend that their RCRA claims are not barred because the State of Texas has not engaged in a removal action pursuant to the RCRA statutory requirements. In the alternative. Plaintiffs assert that if the Court finds that the RCRA claims are barred, the Court may assert supplemental jurisdiction over the state law claims.
II. ANALYSIS
A. Standard
Plaintiffs bear the burden of proving jurisdiction. Boudreau v. United States, 53 F.3d 81, 82 (5th Cir. 1995); Gaitor v. Peninsular Occidental Steamship Co., 287 F.2d 252, 253 (5th Cir. 1961). A District Court properly grants a motion to dismiss for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. John Corp. v. City of Houston, 214 F.3d 573, 576 (5th Cir. 2000) (citation omitted). Plaintiffs plead federal jurisdiction pursuant to 29 U.S.C. § 1331. (Compl. at 2).
Plaintiffs' claims pursuant the Resource Conservation and Recovery Act clearly involve federal questions. The question before the Court, then, is whether Plaintiffs' pleadings state a cause of action upon which any relief may be granted. "Dismissal [for want of subject matter jurisdiction] is proper only when it appears certain that the Plaintiffs cannot prove any set of facts in support of their claim which would entitle them to relief." Robinson v. TCI/US West Communications, Inc., 117 F.3d 900, 904 (5th Cir. 1997) (quoting Saraw Partnership v. United States, 67 F.3d 567 (5th Cir. 1995)). In determining whether subject matter jurisdiction exists, the Court may evaluate (1) the complaint; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts. See Robinson, 117 F.3d at 904. This Court must accept all the factual allegations in Plaintiffs' Complaint as true. See Den Norske Stats Oljeselskap As v. Heeremac Vof, 241 F.3d 420, 424 (5th Cir. 2001).
B. Whether Plaintiffs' RCRA claims are barred
Defendant argues that Plaintiffs' RCRA claims are barred under 42 U.S.C. § 6972 (b)(2)(C) because the State of Texas has begun removal and/or remediation. The statute provides in relevant part:
No action may be commenced under subsection (a)(1)(B) of this section if the State, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment. . . .
(ii) 15 actually engaging in removal action under section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 [ 42 U.S.C. § 9604]; or
(iii) has incurred costs to initiate a Remedial Investigation and Feasibility Study under section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and is diligently proceeding with a remedial action under that Act [ 42 U.S.C. § 9601, et seq.].42 U.S.C. § 6972 (b)(2)(C).
Plaintiffs assert that their claims are not barred because 1) the State of Texas is not engaging in a removal action under Section 104 of CERCLA; 2) that QuikTrip did not provide any evidence of the State's authority to supervise or require a clean-up; and 3) that RCRA citizen suits are only barred to the extent of the scope and duration of the CERCLA order requiring clean-up. (Resp. at 2). At oral argument, Defendant also asserted that there is no injury redressable by an injunction because there is little to no contamination at the site. Each of these arguments will be addressed below.
1. Whether the State is engaged in Removal Action pursuant to CERCLA Section 104
Under 42 U.S.C. § 6972 (b)(2)(C)(ii), Plaintiffs suit would be barred if the State is engaged in removal activities pursuant to Section 104 of Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9604. Section 9604(a) provides that
the President is authorized to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time . . ., or take any response measure consistent with the national contingency plan which the President deems necessary to protect the public health or welfare or the environment.
Section 9604(d) explains the States' role: "If the President determines that the State . . . has the capacity to carry out any or all of such actions . . . the President may enter into a contract or cooperative agreement with the State . . . to carry out such actions." The Court must also read Section 9604 in conjunction with 42 U.S.C. § 9613 (h), which provides that "No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 . . . to review any challenges to removal or remedial action under section 9604 of this title . . . ." Thus, the question of whether the State acted pursuant to Section 104 of CERCLA is proper under a FED. R. Civ. P. 12(b)(1) motion.
Defendant contends that because the State, via the Texas Natural Resource Conservation Commission ("TNRCC"), supervised a removal action at the site, Plaintiffs' claims are barred. See Clinton County Comm'rs v. EPA, 116 F.3d 1018, 1024 (3d Cir. 1997) (noting that 42 U.S.C. § 9613 (h)(4) prohibits District Courts from exercising jurisdiction over citizen suits that challenge EPA remedial actions even where impending irreparable harm is alleged). Plaintiffs conceded at oral argument that the State was supervising Defendant Explorer Pipeline Company's removal efforts, but argues that the State was not acting pursuant to Section 104 of CERCLA. This argument has merit. Although no Court in this Circuit has addressed the issue raised by Plaintiffs, several District Courts in other Circuits have held that to find a claim barred under 42 U.S.C. § 6972, Defendant must show that the State was engaged in a removal action specifically under the authority Section 104 of CERCLA. See, e.g., Orange Environment, Inc. v. County of Orange, 860 F. Supp. 1003, 1026 (S.D.N.Y. 1994) ("The fact that [the State] may have engaged in removal actions is insufficient alone to satisfy the requirements of § 6972(b)(2)(C)(ii) if Defendants cannot establish that [the State's] efforts constituted removal action under CERCLA § 104."). Therefore, the relevant inquiry is whether the State's supervisory efforts constituted removal under Section 104 of CERCLA.
Removal means "the cleanup or removal of released hazardous substances from the environment." 42 U.S.C. § 9601 (23). The term "removal" is to be construed broadly, see Geraghty Miller Inc. v. Conoco, Inc., 234 F.3d 917, 926 (5th Cir. 2000), and "includes those activities that are deemed necessary to prevent hazardous releases from adversely affecting the public health." United States v. Lowe, 118 F.3d 399, 403 (5th Cir. 1997). In addition, "the monitoring provided for under the `removal' definition relates to an evaluation of the extent of the `release or threat of a release of hazardous substances.'" See id. Any removal action, however, does not satisfy the requirements of Section 104 of CERCLA. "For the State action to be conducted pursuant to Section 104 of CERCLA, there must be an agreement between the State and the Federal government pertaining specifically to the action and to the site." Interfaith Community Organization, et al. v. AlliedSignal, Inc., 928 F. Supp. 1339, 1348 (D.N.J. 1996); see also 42 U.S.C. § 9604 (d)(1)(A). Defendant has provided no proof of such an agreement here.
The State of Texas received authorization for its hazardous waste management program in 1984 and changes were authorized on several occasions through the year 2000. See, e.g., 65 Fed. Reg. 43246 (Sept. 11, 2000); 49 Fed. Reg. 48300 (Dec. 12, 1984). This authorization does not conclusively show, however, that the State was using Superfund money under Section 104 of CERCLA to supervise removal at this site. See Department of Toxic Substances v. Interstate Non-Ferrous Corp., et al., 99 F. Supp.2d 1123, 1141 n. 8 (E.D.Cal. 2000) ("State agencies can recover their own resources applied for cleanup without the use of Superfund money."). Without proof of an agreement or contract regarding this specific site, this Court cannot find that the State was supervising Explorer Pipeline Company's activities pursuant to Section 104 of CERCLA and cannot find that Plaintiffs' claims are barred under 42 U.S.C. § 6972 (b)(2)(C)(ii) of RCRA. In addition, this same analysis and conclusion applies to any argument that Plaintiffs' claims are barred under 42 U.S.C. § 6972 (b)(2)(C)(iii), which bars a citizen suit where the State has incurred costs to initiate a Remedial Investigation and Feasibility Study (RI/FS). See Orange Environment, Inc., 860 F. Supp. at 1026-27 (finding that because the State did not enter into a cooperative agreement with the EPA, the State could not have engaged in a removal action or incurred costs to initial an RI/FS under 42 U.S.C. § 9604).
Given the Court's ruling that the State was not engaged in removal activity pursuant to Section 104 of RCRA, it is unnecessary to reach Plaintiffs' other arguments.
2. Whether Plaintiffs claims should be dismissed for lack of redressable injury
Defendant asserted in oral argument that Plaintiffs cannot proceed with their claims under RCRA because there is little to no contamination at the site and therefore no injury redressable by an injunction. Defendant supports its argument with a report, prepared for the Plaintiffs by Environmental Technologies Inc., which was submitted to the Court during oral argument. Defendant argues that because the report only identifies contamination in one sampling, out often, there is no injury that could be redressed by an injunction. See Exh. 1, at 12.
Plaintiff argues that the report was only a preliminary sampling and does not purport to be the kind of comprehensive analysis that would be required to determine conclusively if contamination was present on the properties. In addition, the Plaintiffs assert that the contamination found at the one location could and may have moved down stream to the Plaintiffs' properties causing damage. Plaintiffs' argument is sufficient to overcome the jurisdictional requirements. All Plaintiffs must allege at the pleading stage is that the waste "may present an imminent and substantial endangerment to the health or the environment." 42 U.S.C. § 6972 (a)(1)(B). Defendant asserts that under the Supreme Court's ruling in Mehrig, et al. v. KFC Western, Inc., 516 U.S. 479 (1996) the Plaintiff must prove injury at the motion to dismiss stage. The Court disagrees with Defendant's analysis of Mehrig. Mehrig's holding emphasized that Plaintiffs cannot recover costs for past remediation, and in that vein, cannot claim that contaminated land "previously posed a `imminent and substantial endangerment to the health or the environment.'" Mehrig v. KFC Western, Inc., 516 U.S. at 482, 487, 488. Plaintiffs allege, however, that present contamination to the land and water surrounding their property continues to pose "imminent and substantial endangerment" and this allegation is sufficient. Whether the contamination is an "imminent and substantial endangerment" is a fact question that is not appropriate for analysis at this stage of the proceedings. See Robinson v. TCI/US West Communications, Inc., 117 F.3d 900, 904 (5th Cir. 1997).
C. Supplemental Jurisdiction
Because the Court finds that Plaintiffs may proceed with their RCRA claims against Defendant QuikTrip, the Court asserts supplemental jurisdiction over Plaintiffs state law claims. See 42 U.S.C. § 1367 (a).
III. CONCLUSION
For the reasons stated above, Defendant's Motion to Dismiss is DENIED. If there is any reason why this Memorandum Opinion and Order should not also apply to Defendant's Motion to Dismiss Complaint in Intervention, filed March 22, 2002, the Parties should file a statement with the Court no later than noon. May 10, 2002 .
SO ORDERED.