Substation K, Inc. v. Kan. City Power & Light Co.

• Decision Date: 07 June 2019
• Docket Number: Case No. 4:19-cv-00031-SRB
• Court: U.S. District Court — Western District of Missouri
• Parties: SUBSTATION K, INC., Plaintiff, v. KANSAS CITY POWER & LIGHT COMPANY, Defendant.

SUBSTATION K, INC., Plaintiff, v. KANSAS CITY POWER & LIGHT COMPANY, Defendant.

Case No. 4:19-cv-00031-SRB

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

June 7, 2019

ORDER

Before this Court is Defendant Kansas City Power & Light Company's Motion to Dismiss Plaintiff's Complaint. (Doc. #13). On June 5, 2019, the Court held a hearing on Defendant's motion. For reasons discussed at the hearing and below, the motion is granted in part and denied in part.

I. Legal Standard

Defendant brings its motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).¹ Under Rule 12(b)(6), a court may dismiss a claim for "failure to state a claim upon which relief can be granted." "To survive a motion to dismiss [for failure to state a claim], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ash v. Anderson Merchs., LLC, 799 F.3d 957, 960 (8th Cir. 2015) (internal citation quotation marks omitted) (quoting Iqbal, 556 U.S. at 678). The Court must accept all facts alleged in the complaint as true when deciding a motion to dismiss. Data Mfg., Inc. v. United Parcel Serv., Inc., 557 F.3d 849, 851 (8th Cir. 2009) (noting "[t]he factual allegations of a complaint are assumed true and construed in favor of the plaintiff, even if it strikes a savvy judge that actual proof of those facts is improbable"). However, allegations that are "legal conclusions or formulaic recitation of the elements of a cause of action . . . may properly be set aside." Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 677)

II. Background

Plaintiff Substation K, Inc.'s Complaint alleges the following facts, which the Court accepts as true in deciding Defendant's motion. Data Mfg., 557 F.3d at 851. Plaintiff seeks relief for alleged environmental law violations and state-law claims relating to a facility in Kansas City, Missouri (the "Site"). (Doc. #1, ¶ 2). Defendant "owned and operated the Site beginning in or about 1911 and continuously thereafter through on or about January 1, 1961." (Doc. #1, ¶ 2). During these five decades, Defendant "operated the Site as a Sub-Station for its railway and electrical conversion and distribution businesses." (Doc. #1, ¶ 2). These operations "included the use of significant quantities of toxic chemicals," including polychlorinated biphenyl ("PCB"). (Doc. #1, ¶ 2). Plaintiff has owned the Site since December 1996. (Doc. #1, ¶ 3). From December 1996 through July 2017, Plaintiff "utilized the Site as commercial office space supporting its video production and post production business." (Doc. #1, ¶ 3). "Preliminary investigative activities" conducted in May and June 2017 revealed "the presence of PCB and various chlorinated solvents or volatile organic compounds . . . in the soils and groundwater in, at, on, underlying, emanating from and in the vicinity of the Site." (Doc. #1, ¶¶ 41-42). "Because of their toxicity, each of these substances is subject to comprehensive federal regulations." (Doc. #1, ¶¶ 5). Samples taken at the Site "confirmed" levels of these substances "in soil and groundwater at the Site which exceed standards established by the United States Environmental Protection Agency and the State of Missouri." (Doc. #1, ¶ 42). "The PCB, hazardous waste and solid waste abandoned, discharged and disposed of by [Defendant] . . . may present an imminent and substantial endangerment to health or the environment." (Doc. #1, ¶ 45).

On September 6, 2018, Defendant received a letter from Plaintiff titled "Notice of Violation and Intention to Sue Pursuant to 15 U.S.C. § 2619 and 42 U.S.C. § 6972" ("Notice"). (Doc. #14-1). On January 15, 2019, Plaintiff filed this lawsuit, bringing claims for violation of the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2601 et seq. (Count I); violations of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. (Counts II and III); public nuisance per se (Count IV); recovery of nuisance abatement costs (Count V); and negligence (Count VI). (Doc. #1). Regarding Defendant's alleged TSCA and RCRA violations, Plaintiff "seeks mandatory, prospective injunctive relief."² (Doc. #1, ¶¶ 2). Defendant brings the present motion to dismiss, arguing that the Court lacks subject-matter jurisdiction over Counts I-III because Plaintiff failed to comply with the notice requirements under TSCA and RCRA and that all of Plaintiff's Counts fail to state a claim upon which relief can be granted. (Doc. #14).

III. Discussion

A. Plaintiff's Notice of Violation

TSCA and RCRA both include citizen suit provisions, under which any person has standing to sue for violations. 15 U.S.C. § 2619; 42 U.S.C. § 6972. These citizen suit provisions each impose notice and delay requirements that a person must satisfy before bringing a citizen suit. 15 U.S.C. § 2619(b); 42 U.S.C. § 6972(b); Hallstrom v. Tillamook County, 493 U.S. 20, 23, 31 (1989) (noting that TSCA's and RCRA's notice and delay requirements are "patterned after" those in the Clean Water Act and holding that RCRA notice and delay requirements "are mandatory conditions precedent to commencing" a RCRA citizen suit and that "the district court must dismiss" an action "where a party suing under the citizen suit provisions of RCRA fails to meet" these requirements). Under TSCA, this notice must

include sufficient information to permit the recipient to identify: (1) The specific provision of TSCA or of the rule or order under TSCA alleged to have been violated. (2) The activity alleged to constitute a violation. (3) The person or persons responsible for the alleged violation. (4) The location of the alleged violation. (5) The date or dates of the alleged violation as closely as the citizen is able to specify them. (6) The full name, address, and telephone number of the citizen giving notice.

40 C.F.R. § 702.62. Under RCRA, the required content for notices is nearly identical to that under TSCA.³ Defendant argues that the statutory notice requirements are jurisdictional prerequisites and that, because Plaintiff failed to sufficiently comply with these notice requirements, this Court lacks subject-matter jurisdiction over Plaintiff's TSCA and RCRA claims. (Doc. #14, pp. 7-10). Plaintiff argues that the notice requirements are not jurisdictional and that it has satisfied them. (Doc. #22, pp. 6-8).

Here, without answering the jurisdictional question, the Court finds that Plaintiff satisfies each statute's notice requirement.⁴ The Notice states that Plaintiff's "suit will allege a violation, among other things, of" several sections of TSCA, RCRA, and related regulations. (Doc. #14-1, p. 8-10). The Notice also discusses Defendant's alleged activities that constitute the violations, the person responsible for the alleged violations, the location and dates of the alleged violations, and the contact information of the citizen giving notice. (Doc. #14-1, pp. 81-3, 8-10). Insufficient notice does not provide a ground for dismissal here—whether such dismissal would otherwise have been for lack of subject-matter jurisdiction or for failure to state a claim.

B. Plaintiff's Complaint

i. TSCA Claim (Count I)

Under TSCA's citizen suit provision, "any person may commence a civil action . . . against any person . . . who is alleged to be in violation of" TSCA's substantive provisions and regulations promulgated under them "to restrain such violation." 15 U.S.C. § 2619(a)(1). The Eighth Circuit has not addressed whether TSCA allows mandatory injunctions to remedy past violations as opposed to prohibitory ones to restrain ongoing violations. At least one circuit court and several district courts have addressed this question and answered it in the negative. See Leibhart v. SPX Corp., 917 F.3d 952, 961 (7th Cir. 2019) ("Unlike RCRA, which authorizes mandatory injunctions to compel remediation of previous violations, TSCA authorizes only prohibitory injunctions to stop ongoing violations."); In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 117 F. Supp. 3d 276, 295 (S.D.N.Y. 2015) (holding that plaintiffs bringing TSCA citizen suits "are limited to injunctive relief for ongoing violations"); Arbor Hill Concerned Citizens Neighborhood Ass'n v. City of Albany, N.Y., 250 F. Supp. 2d 48, 59-60 (N.D.N.Y. 2003) (holding that "[b]ecause the word ["restrain"] is in the present tense, and you cannot control, check, limit, or restrict anything that has already stopped, it is implied in the statutory language [of TSCA] that a citizen suit may seek 'to restrain' something that is ongoing or continuous, and that may continue in the future").

In Count I, Plaintiff alleges that Defendant's "handling, management, abandonment, discharge and disposal of PCB, which was and is in violation of" TSCA's substantive provisions and corresponding regulations, "has contaminated soil, surface water, and groundwater" at the Site and "presents an ongoing violation of TSCA." (Doc. #1, ¶ 63). Plaintiff seeks "both mandatory preliminary and permanent injunctive relief requiring [Defendant] to take all action necessary to investigate and abate the ongoing TSCA violations," including "enjoining [Defendant], at its sole cost, to immediately cease, and forthwith abate the consequences of, its past, present and ongoing violations of TSCA and Federal PCB Regulation." (Doc. #1, ¶¶ 65, 109). Plaintiff also requests "all fees and costs incurred by [Plaintiff] in the oversight and monitoring of [Defendant's]...