Hernandez v. Esso Standard Oil Co. (Puerto Rico)

• Decision Date: 10 July 2008
• Docket Number: Civil No. 03-1485 (GAG).
• Citation: 571 F.Supp.2d 305
• Parties: Carmen Elizabeth Marrero HERNANDEZ, et al., Plaintiffs, v. ESSO STANDARD OIL CO. (PUERTO RICO), et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

571 F.Supp.2d 305

Carmen Elizabeth Marrero HERNANDEZ, et al., Plaintiffs, v. ESSO STANDARD OIL CO. (PUERTO RICO), et al., Defendants.

Civil No. 03-1485 (GAG).

United States District Court, D. Puerto Rico.

July 10, 2008.

COPYRIGHT MATERIAL OMITTED

Jose Hernandez Mayoral, Manuel San Juan, Rafael E. Garcia Rodon, Juan H. Saavedra Castro, San Juan, PR, for Plaintiffs.

John F. Nevares, Xiomara Colon-Rodriguez, San Juan, PR, Lawrence Riff, Jason Levin, Los Angeles, CA, for Defendants.

OPINION AND ORDER

GUSTAVO A. GELPÍ, District Judge.

Plaintiffs, past and present property owners and residents of La Vega Ward, Barranquitas, Puerto Rico, bring this action against Esso Standard Oil Co. (Puerto Rico) and others alleging violations of state and federal environmental laws. Esso has moved for dismissal of all claims arguing that the court lacks subject matter jurisdiction. For the reasons stated herein, the court DENIES Esso's motion to dismiss (Docket Nos. 771, 784).

I. Factual and Procedural Background

Esso owned and operated a service station in La Vega for over fifty years. The service station closed in 1998. During the station's operation, Esso installed four underground storage tanks ("USTs") to store and dispense gasoline and diesel fuel. The USTs released their contents which contaminated, and continue to contaminate, the groundwater, surface water, subsurface area, and soil in La Vega. The contamination caused, and continues to cause, Plaintiffs personal injury and property damage. Esso removed the USTs in late 1991. It has not, however, contained the release or corrected the contamination caused by the old tanks; the contaminating materials remain in the area.

On July 8, 2002, Plaintiffs, through their attorney, sent notice of their intent to commence a civil action pursuant to the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992k. Plaintiffs sent the letter to Esso's Guaynabo, Puerto Rico office; the letter was not addressed to any Esso individual. Plaintiffs also sent the letter to Exxon Mobil Corporation's Chairman and CEO, the Administrator of the Environmental Protection Agency ("EPA"), the Commonwealth of Puerto Rico, and the Environmental Quality Board ("EQB") of the Commonwealth of Puerto Rico. The letter alleges CWA and RCRA violations. It states, in pertinent part:

The station was registered in the list of Leading Underground Storage Tanks (LUST). Leaks from these underground storage tanks have been detected since 1990 and the contamination from the contamination from the petroleum products stored in them has affected the Pinon[e]s river and the subsurface area and the soil of adjoining properties and groundwater therein. This contamination, which has caused considerable damages to La Vega Community remains unabated for the petroleum has not been satisfactorily removed as no meaningful remedial action has been undertaken.

This matter has been the subject of numerous orders from the Environmental Quality Board of the Commonwealth of Puerto Rico, the latest—Addendum B—of May 21, 2001. (UST-86-1381).

The La Vega Community intends to file, after 90 days from your receipt of this notice, in the United States District Court for the District of Puerto Rico a citizen suit under 42 USC 6972(a)(1)(A) and/or (B) for enforcement or injunctive relief against Esso Standard Oil de Puerto Rico, Inc. And Exxon Mobil Corporation as violators of regulations, conditions, requirements, prohibitions, or orders, and/or as owners of storage and disposal facilities who have contributed or are contributing to the past or present handling, storage, treatment or disposal of solid or hazardous waste under 42 USC 6972(a)(1)(B) which may present imminent and substantial end[a]ngerment to health or to the environment and/or under violations of orders issued by the Commonwealth of Puerto Rico with respect to effluent standards or limitations under 33 USC 1365(a)(1).

The La Vega Community will also seek damages under supplemental jurisdiction and civil penalties and the award of the costs of litigation, including attorney and expert witness fees under RCRA and CWA.

Esso's and Exxon['s] actions are violation[s] of regulations, conditions, requirements, prohibitions or orders which are enforced in Puerto Rico pursuant to the cooperative agreement entered into by the Commonwealth and the Environmental Protection Agency under 42 USC 6991 b(H)(7)(A). The specific provisions which have been violated of the Underground Storage Tank Regulations are Rules 301(B); 305(A); 501; 503; 504; 602; 603; 604; 605; 702; 703; and 705 and art. 6.1.1 of the Water Quality Standards Regulations. The violations are, amongst other [sic], as follows: failing to report, investigate, or clean up spills from underground gasoline storage tanks; failing to take immediate action to prevent additional spills or to identify and mitigate or mitigate danger of fire explo[s]ions, or toxic vapors; failure to undertake initial characterizations of the affected properties and quality of waters; failure to remove the free product; failure to notify closing or modification of operations and contaminating the waters of Puerto Rico.

The imminent and substantial endangerment to health or to the environment is caused by at least 12 years of contamination by gasoline of the properties and environment of La Vega Community and of the water underground and of the Piñon[a]s river which runs through the community. No clean up of the properties has been undertaken by Esso or Exxon and therefore residents of La Vega Community are continually exposed to the toxic and carcinogenous [sic] components of gasoline such as benzene, toululene, or lead which endanger their lives and poison their land, waters and the environment. This situation is the result of Esso's and Exxon's negligent actions in the past and present as owner of a storage disposal facility and as such contributing to the past and present handling, storage, treatment or disposal of solid or hazardous waste.

Docket No. 772, Exh. A. Addendum A includes the names of ninety-plus plaintiffs and omits the names of eight plaintiffs. The letter also provides Plaintiffs' counsel's address and telephone number.

Plaintiffs filed their federal complaint on May 2, 2003, nearly one year after sending the notice letter. The complaint asserts claims under the CWA and RCRA. It contains factual allegations also included in the notice letter.

Plaintiffs eventually sought leave to amend their complaint. They proposed sending another statutory notice letter and then submitting an amended complaint. The court instructed Esso to file any objections to Plaintiffs' proposed course of action. Esso did not object.

On November 4, 2004, Plaintiffs' counsel sent another notification letter to Esso and all relevant state and federal entities. This letter renotified its RCRA and CWA claims and notified Esso of Plaintiffs' intent to pursue a Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675, claim. On April 13, 2005, Plaintiffs amended their complaint to include a CERCLA claim and to add new parties.

Esso moved for dismissal of the entire action on February 15, 2008. In its motion, Esso alleged that the court lacks subject matter jurisdiction over the federal claims because Plaintiffs failed to provide pre-litigation notice. In response, Plaintiffs directed Esso's and the court's attention to the 2002 notice letter. The court held the motion to dismiss in abeyance pending the resolution of issues related to the notice letter.

Esso eventually moved to reinstate its motion to dismiss. In its reinstated motion, Esso acknowledges that Plaintiffs sent the 2002 letter.¹ Esso contends, however, that Plaintiffs' notice failed comply with the applicable EPA regulations' service and content requirements. Esso argues that the defective notice deprives the court of subject matter jurisdiction. Plaintiffs opposes the motion arguing that Esso's motion is procedurally defective and substantively unsupported.

II. Standard of Review

Rule 12(b)(1) of the Federal Rules of Civil Procedure is the proper vehicle for challenging the court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1); see also Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362-63 (1st Cir.2001). As courts of limited jurisdiction, the court never presumes jurisdiction. Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998). The burden to demonstrate the existence of federal jurisdiction falls upon the party asserting jurisdiction. Id.

In deciding a Rule 12(b)(1) motion to dismiss, the court must construe the complaint liberally, treating well-pleaded fasts as true and indulging reasonable inferences in plaintiffs favor. Aversa v. United States, 99 F.3d 1200, 1209-10 (1st Cir. 1996). The court is not, however, limited to what is set forth in the pleadings. It may accept evidence to determine whether sufficient facts support its jurisdiction. See id. at 1210. The court should not however, resolve disputes concerning jurisdictional facts intertwined with the merits of plaintiffs claim. Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 163 (1st Cir.2007).

III. Discussion

Subject matter jurisdiction cannot be waived and can be raised at any time by the parties or the court. See Fed.R.Civ.P. 12(h)(3); see also Am. Fiber & Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 138-39 (1st Cir.2004) (noting challenge to federal subject matter jurisdiction may be raised for first time on appeal). Nearly five years into this litigation, Esso mounts a factual challenge to Plaintiffs' asserted basis for subject matter jurisdiction. See Torres-Negron, 504 F.3d at 162-63 (explaining difference between sufficiency and factual challenge to court's subject matter jurisdiction). Plaintiffs' complaint asserts, "Notice requirements have been satisfied pursuant to ...