South Road Assoc. v. Int'l Business Machines
| Decision Date | 01 August 1999 |
| Docket Number | No. 99-9072,D,No. 1322,1322,99-9072 |
| Citation | 216 F.3d 251 |
| Parties | (2nd Cir. 2000) SOUTH ROAD ASSOCIATES, Plaintiff-Appellant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant-Appellee. ocket |
| Court | U.S. Court of Appeals — Second Circuit |
ROBERT J. ALESSI, Albany, New York (Susan L. Taylor, LeBoeuf, Lamb, Greene & MacRae, L.L.P., on the brief), for appellant.
NANCY MacKIMM, Dallas, Texas (Mark R. Seiden, Jones, Day, Reavis & Pogue, New York, New York, on the brief), for appellee.
Before: KEARSE and JACOBS, Circuit Judges, and KORMAN, Chief District Judge.*.
South Road Associates ("SRA") as landlord has sued International Business Machines Corporation ("IBM"), the former long-term lessee of its property, under the citizen-suit provisions of the Resource Conservation and Restoration Act ("RCRA"), 42 U.S.C. §6901 et seq., alleging that IBM's storage of chemical wastes on the site resulted in contamination of the surrounding soil, bedrock and groundwater, and amounted to a violation of RCRA's open-dumping provisions. SRA appeals from the judgment of the United States District Court for the Southern District of New York (McMahon, J.) granting IBM's motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). We affirm.
Citizen suits under RCRA can be brought only against persons engaged in RCRA violations that are ongoing. Challenged on that ground in IBM's motion to dismiss, SRA argued that the continued presence--or the present leaching--of contaminants deposited in the past amounts to an ongoing violation. The district court disagreed, ruled (in essence) that ongoing conduct by the defendant is an element of a citizen suit under RCRA, and dismissed for failure to state a claim.
On appeal, SRA argues that the district court misreads RCRA to impose a blanket requirement that the defendant be engaged in ongoing conduct. We agree that the district court's holding was overbroad, and decide that a requirement of present conduct must be found in the wording of the specific provision alleged to be violated. After performing that analysis, however, we affirm because, as the district court ruled, this complaint fails to state an ongoing violation of RCRA.
Because the district court dismissed SRA's complaint on the pleadings, we assume that all of SRA's factual allegations are true and draw all reasonable inferences in SRA's favor. See Hayden v. County of Nassau, 180 F.3d 42, 47 (2d Cir. 1999); Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996).
From the mid-1950s until spring 1994, IBM leased and occupied a parcel of real property in Poughkeepsie, New York. South Road Associates acquired the property around 1979. In 1981, SRA and IBM entered into a five-year lease, which was renewed for additional periods until it was allowed to expire on February 28, 1994. See Complaint ¶¶ 6-10, South Road Assocs. v. IBM, No. 99 CV 0664 (CM) (S.D.N.Y. Jan. 29, 1999) ("Compl.").
IBM used the property for manufacturing, parts-cleaning, storage, shipping and other commercial operations. RCRA classifies certain substances as "solid wastes" in 42 U.S.C. §6903(27), and classifies a subset of solid wastes as "hazardous wastes" in 42 U.S.C. §6903(5). At the Poughkeepsie site, IBM used some chemicals classified as solid wastes and some that were also classified as hazardous wastes. IBM stored these solid and hazardous wastes on the property, some of them in underground storage tanks that are alleged to be leaking the wastes into the surrounding soil, bedrock and groundwater. See Compl. ¶¶ 12-18.
IBM first discovered the leakage in or about 1981. An internal investigation from 1982 to 1984 showed contamination of soil, bedrock and groundwater. In 1987, the New York State Department of Environmental Conservation ("NYSDEC") declared the site to be a Class 2 environmental hazard, i.e., a "significant threat to the public health and environment," pursuant to N.Y. Envtl. Conserv. Law §27-1301 et seq. Compl. ¶¶ 18-21.
During the 1980s, beginning before the intervention of the NYSDEC, IBM conducted a remediation program to reduce contamination on the property. SRA alleges that this remediation program:
(1) failed to discover (or remedy) all of the contamination, so that contamination levels continued at the time of the suit to exceed the maximum contaminant levels ("MCLs") allowable under 40 C.F.R. §257.3-4(a), (c)(2)(i)-(ii); and
(2) used contaminated soil as fill in a soil excavation project that was part of the remediation program, thereby worsening rather than fixing the contamination.
In March 1993, however, IBM successfully petitioned the NYSDEC to modify the status of the site from Class 2 to Class 4, which relieved IBM of any state-imposed environmental obligation at the site except for continued monitoring. At the time of the filing of this suit, IBM continued to monitor the site under the New York State Inactive Hazardous Waste Disposal Site Program. See Compl. ¶¶ 22-26.
SRA retook possession of the property on March 1, 1994. See id. at ¶ 31.
SRA sued IBM in December 1998, alleging (1) a violation of RCRA's statutory and regulatory prohibitions against "open dumping," (2) common law breach of contract, and (3) common law unjust enrichment. The action was commenced in New York State Supreme Court, Dutchess County, and timely removed by IBM to federal court.
After removal of the action, IBM filed a motion to dismiss. After oral argument, Judge McMahon dismissed the federal claims pursuant to Fed. R. Civ. P. 12(b)(6), on the ground that current acts of contamination must be pleaded to maintain a citizen suit under RCRA, and that the complaint pleads no such allegation against IBM. The district court declined to exercise jurisdiction over the pendent state claims. SRA appeals.
We review de novo the district court's dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). See Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000). To survive a motion for dismissal under Rule 12(b)(6), the complaint must allege facts that, if true, would create a judicially cognizable cause of action. See Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999).
SRA brought its federal claims in the form of a citizen suit under RCRA, pursuant to 42 U.S.C. § 6972(a)(1)(A),2. which provides that "any person may commence a civil action on his own behalf" "against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order" under the solid waste disposal provisions. Id. (emphasis added).
In the course of its oral dismissal of SRA's complaint (and at oral argument on the motion), the district court read this Court's decision in Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 989 F.2d 1305 (2d Cir. 1993) ("Remington Arms"), to mean that a defendant is not in violation of §6972(a)(1)(A)--i.e., is not "in violation of" RCRA's enforcement scheme--unless the defendant is still actively engaged in contaminating the site. The district court thus treated as dispositive that (according to the complaint) IBM's lease and occupancy ended early in 1994, and that at the time of suit IBM was no longer doing anything at the site other than monitoring.
Remington Arms was a citizen suit under the same RCRA section invoked by SRA, 42 U.S.C. §6972(a)(1)(A), and under the substantially identical provision of the Clean Water Act ("CWA"), 33 U.S.C. §1365(a)(1). The Connecticut Coastal Fishermen's Association sued the Remington Arms Company, which owned a gun club on Long Island Sound, alleging that the club's land and the waters of the Sound had been polluted with lead and clay by 70 years of skeet shooting. See Remington Arms, 989 F.3d at 1308-10. The RCRA claim was that Remington was operating a hazardous waste storage and disposal facility without a permit, in violation of 42 U.S.C. §6925(a). Remington Arms determined that the Fishermen's Association had no cognizable RCRA claim because the property was no longer used for shooting skeet, but adopted no blanket requirement that current action be alleged. See id. at 1315-16. Instead, Remington Arms considered each allegation of unlawful disposal and storage and tested its sufficiency against the wording of the statute:
(1) As to whether the defendant was operating a hazardous waste disposal facility, we ruled that since shooting had ended, the "disposal" of hazardous waste was over as well. Thus the disposal claim pleaded a violation that was "wholly past" and therefore barred. Id. at 1315 (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 57, 108 S.Ct. 376, 381 (1987)) (internal quotation marks omitted).
(2) As to whether Remington was "operating a hazardous waste storage facility," we ruled that the requirement of an ongoing violation was satisfied because "the alleged 'violation' would continue as long as the lead shot and clay targets are 'stored' in the waters of Long Island Sound," Remington Arms, 989 F.2d at 1315, but dismissed the claim nevertheless because the statutory definition of "storage" made it a term of art limited to "interim measure[s]" that therefore does not include the act of leaving waste "with no intention of taking additional action." Id. at 1316 (citing 42 U.S.C. §6903(33); 40 C.F.R. §260.10).
As this summary illustrates, Remington Arms employed no blanket test...
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