MEMORANDUM AND ORDER RE: MOTION TO DISMISS

WILLIAM B. SHUBB, District Judge.

The City of West Sacramento, California ("the City") and the People of the State of California initiated this action to address toxic levels of soil and groundwater contamination in the environment within the City. Before the court is defendant Richard Leland's Motion to Dismiss the Second Amended Complaint. (Docket No. 37.)

I. Factual and Procedural Background

This court's prior two orders dismissing complaints as against defendant Richard Leland (Docket Nos. 18 & 33) describe the parties and detail much of the procedural and factual background to this lawsuit. In its most recent order issued on September 4, 2018, the court granted defendant Richard Leland's motion to dismiss in full and gave plaintiffs twenty days to file an amended complaint. (Docket No. 33.)

On September 20, 2018, plaintiffs filed the Second Amended Complaint, which alleges the following causes of action against Leland: (1) violation of the Resource Conservation and Recovery Act ("RCRA") § 7002(a), 42 U.S.C. § 6972(a)(1)(B); (2) violation of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") § 107(a), 42 U.S.C. § 9607(a); (3) violation of The Gatto Act, California Health & Safety Code §§ 25403-25403.8; (4) statutory indemnity; and (5) declaratory relief and costs allegedly incurred in response to soil and ground water contamination at and around the property. (Second Am. Compl. ("SAC") (Docket No. 34).) Defendant Richard Leland moves to dismiss the SAC against him in full.

II. Discussion

A. Legal Standard

On a Rule 12(b)(6) motion, the inquiry before the court is whether, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor, the plaintiff has stated a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "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." Id. A complaint that offers mere "labels and conclusions" will not survive a motion to dismiss. Id. (internal quotation marks and citations omitted).

B. CERCLA and RCRA Claims

Plaintiffs contend that Leland qualifies an "operator" under CERCLA and RCRA1 such that he is liable for his individual conduct in causing the alleged contamination.2

CERCLA defines "owner or operator" as "any person owning or operating such facility" but excludes any "person, who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest in the vessel or facility." 42 U.S.C. § 9601 20(A)(ii).

Given the circular definition of "operator" in the statute, the Supreme Court clarified that "under CERCLA, an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility." United States v. Bestfoods, 524 U.S. 51, 66 (1998). In other words, an operator in the CERCLA context "must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations." Id. at 66-67. The Ninth Circuit has further interpreted operator liability to extend to any party with "authority to control the cause of the contamination at the time the hazardous substances were released into the environment." Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1341 (9th Cir. 1992); see also San Pedro, 635 F.3d at 452 n.9 (restating this interpretation of operator liability).

Plaintiffs rely on three separate allegations in their complaint to support a theory of operator liability.3 First, plaintiffs allege that Leland "was responsible for approving purchase orders for chemicals and supplies, arranging for delivery of the chemicals and supplies, and creating invoices for the plating operation at the Property." (SAC ¶ 52.) Second, plaintiffs contend that Leland "was responsible for waste permitting and environmental compliance," which "included obtaining permits for the transportation of hazardous material." (SAC ¶ 46.) Third, plaintiffs argue that Leland's authority to lease the property suggests he had authority to control the source of contamination. (Pls.' Opp'n to Mot. to Dismiss at 8.)

Plaintiffs' first two allegations are based on information and belief. While facts may be alleged on information and belief, conclusory allegations asserted on such a basis are insufficient to state a claim. Blantz v. Cal. Dep't of Corr. & Rehab., 727 F.3d 917, 927 (9th Cir. 2013) (citing Iqbal, 556 U.S. at 686). A complaint will not survive a motion to dismiss if it "tenders naked assertions devoid of further factual enhancement." Iqbal, 556 U.S. at 678. The SAC does not detail any of the factual predicates to support plaintiffs' conclusion that Leland was responsible for environmental compliance or that he arranged for delivery of chemicals to the property.4 Instead, these allegations read like conclusions because they simply plead requirements for a person to be an operator under CERCLA. See also id. at 662 ("[T]he tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))).

None of Leland's statements that plaintiffs rely on support these allegations. Those statements merely show that Leland had knowledge after-the-fact about environmental contamination at the property, not that he had control over the source of the contamination. (See SAC ¶¶ 46, 63-64.) Until plaintiffs provide a factual basis for these two allegations, they cannot support a theory of operator liability that can survive a motion to dismiss.5 To be sufficient, any additional allegations would have to directly connect Leland to operations at the site specifically related to pollution.

Finally, Leland's mere status as a lessee of the property cannot support a theory of operator liability. As this court previously observed, this allegation does not demonstrate that Leland participated in the disposal of hazardous wastes or that he "had the authority to control the cause of contamination at the time the hazardous substances were released into the environment." Kaiser Aluminum, 976 F.2d at 1341. Execution of a lease does not necessarily imply control of "operations specifically related to pollution." See Bestfoods, 524 U.S. at 66.

Accordingly, the court will grant Leland's motion to dismiss plaintiffs' CERCLA and RCRA claims based on "operator" liability.

B. State Law Claims

Plaintiffs' third and fourth causes of action are state law claims that, as the court's two prior orders indicated, require plaintiffs to allege facts indicating that Leland owned or operated the facility, or that he created the alleged contamination. Plaintiffs have failed to carry that burden, and as such all state law claims will be dismissed.

C. Declaratory Relief

Plaintiffs also request declaratory relief, contending that because they have alleged a CERCLA claim, they are entitled to declaratory relief under 42 U.S.C. § 9613(g)(2). In the absence of a valid claim for recovery under CERCLA, declaratory relief is unavailable. See Coppola v. Smith, 935 F.Supp.2d 993, 1005 (E.D. Cal. 2013) (Ishii, J.) (holding the same).

IT IS THEREFORE ORDERED that Leland's Motion to Dismiss Plaintiffs' Second Amended Complaint (Docket No. 37) be, and the same hereby is, GRANTED.

Plaintiffs have twenty days from the date this Order is signed to file a Third Amended Complaint, if they can do so consistent with this Order.6 This will be the last time plaintiffs are given leave to amend. Plaintiffs have had three opportunities to amend their complaint as to this defendant and the court has clearly stated the deficiencies in plaintiffs' complaint each time.