LOZAR v. BIRDS EYE FOODS, INC.

• Decision Date: 22 December 2009
• Docket Number: Case No. 1:09-cv-10.
• Citation: 678 F. Supp.2d 589
• Parties: Randall & Heather LOZAR, Juan & Erica Cortez, Randy T. Baker & Marcy Baker, Sonny & Deanna Bustillos, Juanita & Juan Rodriguez, Dale Zuidema, David Nauta, Daniel & Nyoka Martinez, Harold & Deana Hicks, Jennifer Hicks & Clifton Hicks, Janice Reed, Stephen Martin and Frances Martin, Jane Jacobson and Leon Stam, Noemi Diaz Miguel, Sigfredo Arriola, San Juan Benevides, Martin De Lucas, Felipa Diaz, Anne Hanson, Vicente James, Eleno Dias, Roger and Michelle Martin, and Francisco and Maria Rodriguez, Plaintiffs, v. BIRDS EYE FOODS, INC., Defendant.
• Court: U.S. District Court — Western District of Michigan

678 F.Supp.2d 589

Randall & Heather LOZAR, Juan & Erica Cortez, Randy T. Baker & Marcy Baker, Sonny & Deanna Bustillos, Juanita & Juan Rodriguez, Dale Zuidema, David Nauta, Daniel & Nyoka Martinez, Harold & Deana Hicks, Jennifer Hicks & Clifton Hicks, Janice Reed, Stephen Martin and Frances Martin, Jane Jacobson and Leon Stam, Noemi Diaz Miguel, Sigfredo Arriola, San Juan Benevides, Martin De Lucas, Felipa Diaz, Anne Hanson, Vicente James, Eleno Dias, Roger and Michelle Martin, and Francisco and Maria Rodriguez, Plaintiffs, v. BIRDS EYE FOODS, INC., Defendant.

Case No. 1:09-cv-10.

United States District Court, W.D. Michigan, Southern Division.

December 22, 2009.

Marlo D. Smith, M D Smith Law Office PLLC, Kalamazoo, MI, for Plaintiffs.

Douglas A. Donnell, Brian M. Andrew, Mika Meyers Beckett & Jones PLC, Grand Rapids, MI, for Defendant.

OPINION and ORDER

PAUL L. MALONEY, Chief Judge.

"Lozar 3"

Granting in Part and Denying in Part the Motion to Dismiss Parts of Count One and Two:

Dismissing Count 1 (Negligence) for Failure to State a Claim to the Extent that it Relies on Negligence Per Se Consisting of Alleged Violation of the SDWA

Declining to Dismiss Count 1 (Negligence) for Failure to State a Claim to the Extent that it Relies on Negligence Per Se due to Alleged Violation of CERCLA, RCRA, and/or Michigan NREPA

Dismissing Count 2 (Remediation/Response Costs) for Failure to State a Claim to the Extent that it Relies on Violation of the SDWA

Declining to Dismiss Count 2 (Response/Remediation Costs) to the Extent that it Seeks Costs Attributable to Alleged Violation of CERCLA, RCRA, and/or Michigan NREPA

Permitting the Plaintiffs to File a Third Amended Complaint Providing Sufficient Specific Allegations Regarding Each Plaintiff's Actual Past Incurrence of Response Costs and Regarding their Compliance with the National Contingency Plan

Randall and Heather Lozar and thirty-three other plaintiffs (collectively "the Lozars") reside or own property near a fruit-processing plant owned and operated by defendant Bird's Eye Foods, Inc. ("BEF") in Fennville, Michigan. See 2d Am Comp ¶¶ 1-29 and 40. BEF has not denied that it meets any pertinent federal or state statutory definitions of owner/operator of the Fennville facility. See, e.g., 42 U.S.C. § 9601(20)(A) (CERCLA definition of owner or operator, "in the case of an onshore facility", simply as "any person owning or operating such facility"); 42 U.S.C. § 9601(20)(D) (excluding units of State or local government from definition of owner/operator under certain circumstances).

BEF's operations at the Fennville facility creates wastewater which contains organic matter from the fruit, such as dissolved sugar and suspended solids, and it disposes of this wastewater by spraying it onto its fields ("spray irrigation"), which are east of the facility and south of the road called M-89. See 2d Am Comp ¶¶ 40 and 50. The Lozars allege that since the BEF facility opened, its spray irrigation has caused elevated levels of "contaminants" in the soil and "groundwater" on and around the facility premises. See 2d Am Comp ¶¶ 40 and 51. See also 42 U.S.C. § 9601(12) (CERCLA definition of groundwater as "water in a saturated zone or stratum beneath the surface of land or water"). CERCLA explains that a pollutant or contaminant includes, but is not limited to,

any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction), or physical deformations, in such organisms or their offspring. . . .

42 U.S.C. § 9601(33). CERCLA provides that the term contaminant does not include "petroleum, including crude oil or any fraction thereof which is not otherwise specifically designated or listed or designated as a hazardous substance" under 42 U.S.C. § 9601(14)(A)-(F), nor does it include "natural gas, liquified natural gas, and synthetic gas of pipeline quality (or mixtures of natural gas and such synthetic gas)." 42 U.S.C. § 9601(33).

In addition to the spray irrigation, the Lozars also allege that there are at least two other potential sources of contaminants emanating from the BEF facility, including iron, manganese, arsenic, chloride, and sodium: at least one allegedly unpermitted and undocumented landfill on BEF's property, created and used by BEF; and cans, fruit-pit waste, and other debris that BEF has buried in the soil of the facility. See 2d Am Comp ¶¶ 41-43.

The Lozars allege that the spray irrigation at the facility has caused a phenomenon known as "groundwater mounding," which they describe as "an outward and upward expansion of the free water table caused by shallow reinjection which can alter flow rates and direction." The groundwater mounding has allegedly caused the contaminants to spread in directions different than they would have spread otherwise. See 2d Am Comp ¶¶ 45-46. As a result of the spray irrigation and other causes of contaminant emission and migration, the Lozars allege, residential wells belonging to plaintiffs and others "down-gradient" from the BEF facility do not meet accepted residential water-quality criteria, and the water has also developed odors, coloration, and fixture staining which would not have occurred otherwise. See 2d Am Comp ¶ 47; id. ¶ 311 (San Juan-Benevides' water has a bad taste, an odor like rotten eggs and sulfur, and is often brown);

By letters dated between May 8, 2008 and July 24, 2008, BEF notified plaintiffs and other Fennville residents that water had migrated from their facility off their premises, and in some cases plaintiffs received MDEQ letters stating that their drinking water is contaminated, see 2d Am Comp ¶¶ 49 and 59 (Lozars); id. ¶ 155 (Deana and Harold Hicks received BEF letter dated July 24, 2008); id. ¶ 130 (Nauta received BEF letter 4-5 months before 2d amended complaint filed); id. ¶ 184 (Reed received letter from BEF on unspecified date); id. ¶ 195 (Stephen Martin received MDEQ letter stating water is contaminated); id. ¶ 211 (Jacobson and Stam received MDEQ letter stating water is contaminated); id. ¶ 283 (Noemi Miguel received MDEQ letter in May or June 2008 stating water is contaminated); id. ¶ 383 (the Martins received MDEQ letter on unspecified date regarding contamination); id. ¶ 398 (Francisco and Maria Rodriguez received BEF letter cautioning that water might be contaminated).

The Lozars acknowledge that there may be a layer of "glacial till"—poorly sorted sand, silt, and clay of glacial origin—which may act as a confining layer between the upper and lower aquifers, thereby ruling out BEF as the source of some of the contaminants, but they point out that environmental investigation of the affected land is ongoing. See 2d Am Comp ¶¶ 44 and 49. After sampling both groundwater and the drinking water of plaintiffs and other Fennville residents, BEF notified them (on unspecified dates) that groundwater sampling has revealed elevated levels of arsenic and manganese which exceed the State of Michigan's drinking standards. See 2d Am Comp ¶¶ 52, 54, 65 (arsenic in Lozars' drinking water), 70 (testing of Lozars' drinking water).

The Lozars allege that their water emits a foul odor and causes rust stains to accumulate on everything it touches, while the Cortezes allege that their drinking water smells like rotten eggs and is very discolored and dirty-looking, see 2d Am Comp ¶¶ 67, 80, and the Martinezes likewise allege that their drinking water is yellow, cloudy and smells like rotten eggs, and they had to replace their water heater, plumbing and water lines due to the contaminated water, id. ¶¶ 144-46. The Rodriguezes allege that their water has a high iron content and stains everything that it touches, id. ¶ 105, while DeLucas alleges that his water "has a strange color and flavor" and cannot be used for drinking or any other purpose, id. ¶¶ 327-328.

As for symptoms allegedly related to groundwater contamination, Mr. Lozar complains that he developed chest pains while living at his home near the BEF facility and that the pains stopped after he stopped drinking the water from his well. See 2d Am Comp ¶¶ 71-72. Plaintiff Erica Cortez alleges that she suffered clotting in her ovaries and an inflamed liver and pancreas and that her physician was unable to identify the cause of these conditions, and that the Cortezes' dog developed a massive lump in his neck after drinking their water. See 2d Am Comp ¶¶ 82-83. Plaintiff Juanita Rodriguez has recurring joint problems, has lost a significant amount of weight, and developed very dry skins and "large bumps" shortly after moving in; her husband Juan has developed a severe rash on his hands and all over his body; her daughter Jsenia lost large amounts of hair while living at the residence; her granddaughter M.V. has developed skin blemishes which her physician has been unable to diagnose and treat; and several of their pets who drank their water became sick and died. See 2d Am Comp ¶¶ 107-112 and 114. About seven or eight years before this complaint was filed, plaintiff Nyoka Martinez developed clogged arteries and both of her legs had to be amputated, but her physicians were unable to determine the cause of her medical conditions. Id. ¶ 147-48. Plaintiff Felipa Diaz alleges that she has suffered heart disease, thyroid problems, heartburn, a swollen liver, and hair loss; her relative Martha has suffered heartburn and high cholesterol; and Juvencio has suffered twenty years of hair loss, as well as dementia symptoms which she believes may be Alzheimer's, id. ¶ 342. Finally, the Rodriguezes have suffered hair loss, heartburn, and heart disease. Id. ¶¶ 402-403.

For more than 18...