RICHARD D. BENNETT, District Judge.
This case is yet another lawsuit challenging the siting and construction of the Horseshoe Casino in Baltimore, Maryland.
This Court accepts as true the facts alleged in the plaintiffs' complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir.2011).
This lawsuit concerns various tracts of land in Baltimore City, Maryland where the Horseshoe Casino is currently under construction ("the Site").
Plaintiff Ruth Sherrill ("Sherrill") is the original lead plaintiff in this case and is joined in the suit by another seven (7) named plaintiffs (collectively, the "Plaintiffs"). The other named plaintiffs are Elizabeth Arnold ("Arnold"), Merab Rice ("Rice"), Sherry Moore-Edmonds ("Moore-Edmonds"), Tim Bull ("Bull"), Julia Dinkins ("Dinkins"), Bruce Goldfarb ("Goldfarb"), and Michael Gallagher ("Gallagher"). Goldfarb is "an avid photographer and journalist" who enjoys biking and taking photographs of the flaura and fauna along the Gwynns Falls Trail. Id. ¶ 12. Due to the contamination at the Site, however, Goldfarb does not stop for photographs near the Waterfront Parcel and refrains from bringing his children to bike along that portion of the Trail as well. Id. ¶ 13. Goldfarb alleges that, were the Waterfront Parcels safer for human use, he would visit those portions of the Trail. Id. ¶ 14.
Gallagher is a resident of the Westport neighborhood of Baltimore City and uses the Gwynns Falls trail to travel into downtown Baltimore on occasion. Id. ¶ 15. Gallagher also uses the Trail "for exercise and for its waterfront views" and is concerned about the health risk posed by "repeated exposure to contamination" at the Site. Id. ¶ 15. Gallagher "would like to see clean and fishable waters in the Middle Branch" and "would recreate and use the portion of the Gwynns Falls Trail on and around the Waterfront Parcels more often" if the Site were remediated. Id. ¶ 16.
Bull is a resident of Baltimore City and "enjoys fishing and boating in and around the Baltimore Harbor" and the Middle Branch area. Id. ¶ 17. Allegedly, Bull "currently recreates and/or fishes in the Middle Branch area of the Patapsco River approximately every five (5) months." Id. ¶ 18. Although "he enjoys fishing with his son and teaching his son to fish," he travels to more distant locations to do so "because of his fears and concerns regarding the adverse health effects associated with his son's exposure to the contamination of the Middle Branch." Id. ¶ 17. If Bull knew the Middle Branch "was safe for recreational use, he would feel comfortable teaching his son to fish [there]." Id. ¶ 18.
Sherrill, Moore-Edmonds, and Rice are residents of the Westport neighborhood of Baltimore City. Id. ¶¶ 19-23. According to the Complaint, Sherrill "enjoys the greenery and water views in and around the Gwynns Falls Trail." Id. ¶ 19. Moore-Edmonds "has used the portion of the Trail along the Waterfront Parcels and the open space area in and around its vicinity for recreation purposes." Id. ¶ 20. Meanwhile, "Rice's children frequently use and recreate along the Gwynns Falls Trail." Id. ¶ 21. All three are concerned about the health risks posed by the contamination at the Site.
Arnold and Dinkins are also residents and property owners in nearby parts of Baltimore City. Neither alleges any specific usage of the area in the immediate vicinity of the Site, but both profess concern
Plaintiffs have sued Maryland Chemical Company, Inc. ("Maryland Chemical"), the Mayor and City Council of Baltimore (the "City"), the City of Baltimore Development Corporation ("Baltimore Development Corp."), CBAC Gaming, LLC ("CBAC Gaming"), and CBAC Borrower, LLC ("CBAC Borrower").
Maryland Chemical is the past operator of a portion of the Site.
The City is the present owner of the Russell Street Properties and the Waterfront Parcels. Id. ¶ 28. The City "acquired the parcels comprising the Waterfront Parcel in three (3) separate transactions on or around March 13, 1978, October 26, 1993, and April 24, 1996." Id. ¶ 29. The Site parcels were acquired in four (4) separate transactions on or around April 27, 1976, October 26, 2005, May 5, 2008, and December 4, 2009. Id. ¶ 30. Baltimore Development Corp. is a 501(c)(3) corporation that was organized to facilitate public and private development projects in Baltimore City and was the past operator of the Site during the period of the City's ownership.
CBAC Gaming is the present operator of the Site, while CBAC Borrower is the present owner of a portion of the Site.
As noted above, Maryland Chemical performed "chemical manufacturing and/or bulk chemical storage, repackaging and distribution" operations at the Site from at least 1952 until 2008. Id. ¶ 49. These operations involved a variety of chemical compounds, including "chlorinated
Plaintiffs allege that Maryland Chemical failed to take "any action to control, mitigate, abate, remediate or remove the groundwater and soil contamination at the Russell Street Properties." Id. ¶ 55. Plaintiffs further allege that these contaminants continue to migrate off-site and pollute the Waterfront Parcels and the Middle Branch. Id. ¶ 56.
After the City acquired the Waterfront Parcels, it allegedly planned to restore wetlands on those properties. Id. ¶ 57. In connection with that plan, the Maryland Department of the Environment conducted an environmental assessment of the Waterfront Parcels around October 2005. Id. ¶ 59. The assessment included groundwater and soiling sampling, which indicated that the surface and subsurface soils as well as the groundwater at the Waterfront Parcels were contaminated with various semivolatile organic compounds including PAHs, and heavy metals at "concentrations above the applicable federal and state cleanup standards and/or regulatory limits."
Plaintiffs allege that, in response to the assessment, the Maryland Department of the Environment recommended extensive remediation at the Site. Id. ¶ 64. However, the City instead abandoned the wetland restoration project and "did not address, mitigate, abate, remediate or remove the contaminated soils from the Waterfront Parcels." Id. ¶¶ 65, 66. Plaintiffs further allege that the Maryland Department of the Environment directed the City "to fully assess the nature and extent of the contamination at the Waterfront Parcels" in January 2009, but that the City refused to conduct any further assessments and simply proposed remediation activities that were somewhat less intensive than the Department had originally suggested.
On May 5, 2010, the Department allegedly sent a letter to the City stating that the City's proposed remediation was inadequate and that there was "insufficient oil gas and groundwater sampling data to determine whether the [volatile organic compound] contamination identified ... at the upgradient Casino Site was migrating into the [Waterfront Parcels] at levels of concern." Id. ¶¶ 69, 70 (internal quotations omitted). Again, the City allegedly took no action to control, mitigate, abate, remediate, or remove the contaminated soil or groundwater or to further assess the potential migration of volatile organic compounds. Id. ¶ 71.
After acquiring the various properties constituting the Site, the City sought to enter those properties into the Maryland Voluntary Cleanup Program. Id. ¶ 72. The City submitted an application for the Russell Street Properties on April 25, 2008 and for the Warner Street Properties on June 4, 2009. Id. ¶ 72. The Voluntary Cleanup Program is administered by the Maryland Department of the Environment and was designed to help alleviate the problem of abandoned industrial properties that were contaminated by past activities and uses. The program is codified at Md.Code, Envir. § 7-503 et seq. The program allows individuals who have not contributed to contamination at a particular programeligible site to apply for "Inculpable Person" status. After acquiring inculpable person status, the individual may acquire an interest in an eligible property
These applications for the Voluntary Cleanup Program allegedly contained further environmental assessments demonstrating that "the unremediated spills and/or releases of VOCs and petroleum compounds containing DROs and PAHs during Maryland Chemical's past operations at the Russell Street Properties are continuing sources of contamination in the groundwater, soil and/or soil vapor at and around the Casino Site at levels well above applicable federal and state cleanup standards and/or regulatory limits." Id. ¶ 73. Specifically, Plaintiffs allege that the assessments reflected the following contamination:
Furthermore, Plaintiffs allege that "the PCE plume at the Russell Street Properties has caused `hot spots' ... in the surface and subsurface soils throughout the Russell Street Properties which would render the soils to be considered `hazardous waste', as defined under applicable federal and state hazardous waste laws, once excavated."
Plaintiffs allege that, between May 2008 and December 31, 2009, the City "allowed illegally stored and/or abandoned drums containing hazardous wastes to leak, spill and/or otherwise release into the Casino Site." Id. ¶ 91. In addition, Plaintiffs assert that the City "moved, mixed, stockpiled, backfilled and/or graded contaminated soils and groundwater at the Casino Site in order to, among other things, address abandoned pits used during previous industrial operations which contained contaminated groundwater and/or rainwater and remove at least one (1) UST located at the Russell Street Properties." Id. ¶ 92. These activities, according to the Complaint, occurred "in and around known hot spots of PCE, TCE and heavy metals." Id. ¶ 93.
Around October 2012, CBAC Gaming entered into an agreement with the City to develop the Horseshoe Casino. Id. ¶ 181. Under the terms of those agreements, CBAC Gaming was required to participate in the Voluntary Cleanup Program and to remediate the Site. Id. ¶ 81. CBAC Gaming filed its Voluntary Cleanup Program application and proposed a Response Plan Amendment, which the Plaintiffs allege was less protective of the environment.
Around March 2013, CBAC Gaming began construction and remediation activities at the Site. Id. ¶ 94. In connection to these activities, Plaintiffs allege that "CBAC Gaming has excavated, moved, mixed, stockpiled, backfilled and/or graded contaminated soils and groundwater at the Casino Site in order to, among other things, investigate and remove at least thirteen (13) historic USTs at the Casino Site, remove existing utilities and foundations (including building footers and concrete slabs) and install new utilities and foundations at the Casino Site."
Additionally, Plaintiffs allege that the planned parking garage and plantings on the Waterfront Parcels will involve the excavation, movement, and grading of known contaminated soils. Id. ¶¶ 99-100. The Plaintiffs note that neither the City nor CBAC Gaming has enrolled or sought enrollment of the Waterfront Parcels into the Voluntary Cleanup Program and that there are no remediation activities planned for those parcels. Id. ¶ 100.
Plaintiffs allege that "the VOC, PAH and heavy metal contamination in the soils and groundwater at the Casino Site, which have migrated and will continue to migrate in the soils, soil vapors and/or groundwater off-site and into the surrounding areas, including the Waterfront Parcels and the Middle Branch, presents a[n] imminent and substantial risk to human health and the environment." Id. ¶ 102. In particular, Plaintiffs allege that the presence of volatile organic compounds presents an imminent and substantial risk to the health of workers and visitors in the areas and buildings around the Russell Street Properties. Id. ¶ 103. According to the Complaint, the "human health effects associated with breathing small amounts of VOCs include headaches, nausea, lung irritation, dizziness, confusion, poor coordination, and difficulties with speaking, walking, and concentrating," while longer exposure can cause "nerve, kidney and liver damage, impaired heart function, unconsciousness and death." Id. ¶ 104. Meanwhile, Plaintiffs also allege that "[l]ong terms [sic] exposure to TCE, vinyl chloride, and 1,2-dichloroethene, which are known or probable human carcinogens, may also cause cancer." Id. ¶ 105.
Plaintiffs also allege that more recent testing conducted in April 2013 indicates that the Waterfront Parcels are still polluted at unsafe levels. Specifically, Plaintiffs allege that sampling conducted "along the shoreline of the Middle Branch and immediately downgradient from the Waterfront Parcels" revealed that "the soils and groundwater in the channel ward of the Waterfront Parcels are contaminated with the same PAHs, DROs and heavy metals which have been identified as sources of contamination at and under the Casino
The Complaint also explains the human health risks associated with PAH contamination:
Id. ¶¶ 114-15. Plaintiffs also expressly note the dangers of PAH contamination to aquatic invertebrates that live in aquatic sediments, which is where such contamination generally concentrates. Id. ¶ 110. According to the Complaint, PAH contamination can cause "inhibited reproduction, delayed emergence, sediment avoidance, liver neoplasms and other abnormalities and mortalities" in such creatures. Id. ¶ 111. Meanwhile, "[h]eavy metals bioaccumulate in muscle tissue and therefore heavy metal contamination in the aquatic environment can cause various adverse health effects to the aquatic ecosystem and to humans through fish consumption." Id. ¶ 112.
The Plaintiffs filed this suit on or about September 19, 2013, asserting two counts under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. Count I asserts a claim under § 6972(a)(1)(A) against the City, CBAC Gaming, and CBAC Borrower. Count II asserts a claim under § 6972(a)(1)(B) against Maryland Chemical, the City, CBAC Gaming, and CBAC Borrower. In redress of their claims, Plaintiffs request this Court to:
Id. ¶ a-h. On October 15, 2013, the Defendants filed a number of motions to dismiss. Defendants CBAC Borrower and CBAC Gaming filed a Motion to Dismiss (ECF No. 11) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendant Maryland Chemical filed its own Motion to Dismiss (ECF No. 13) for failure to state a claim pursuant to Rule 12(b)(6). Finally, Defendants Baltimore Development Corp. and Baltimore City filed a Motion to Dismiss (ECF No. 15) pursuant to Rules 12(b)(1) and 12(b)(6). After the motions were fully briefed, Plaintiff filed a Motion for Leave to File Sur-Reply (ECF No. 33) with respect to the CBAC Defendants' Motion.
When a defendant moves to dismiss a plaintiff's claim for lack of standing, courts commonly address the motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Payne v. Chapel Hill North Properties, LLC, 947 F.Supp.2d 567 (M.D.N.C.2013) ("Generally, challenges to standing are addressed under Rule 12(b)(1) for lack of subject matter jurisdiction."); see also Nat'l Alliance for Accessibility, Inc. v. Rite Aid of N. Carolina, Inc., 1:10CV932, 2011 WL 4499294 (M.D.N.C. Sept. 27, 2011) ("Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may assert that a court lacks subject matter jurisdiction over a plaintiff's complaint, including by challenging a plaintiff's standing."); Food & Water Watch v. United States Envtl. Prot. Agency, CV 12-1639(RC), 5 F.Supp.3d 62, 72, 2013 WL
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction challenges a court's authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D.Md. 2005). This challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting "that the jurisdictional allegations of the complaint [are] not true." Kerns v. United States, 585 F.3d 187, 192 (4th Cir.2009) (citation omitted). With respect to a facial challenge, a court will grant a motion to dismiss for lack of subject matter jurisdiction "where a claim fails to allege facts upon which the court may base jurisdiction." Davis, 367 F.Supp.2d at 799. When addressing such a facial challenge, "the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Kerns v. United States, 585 F.3d 187, 192 (4th Cir.2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982)). Where the challenge is factual, the district court may look beyond the pleadings and "decide disputed issues of fact with respect to subject matter jurisdiction." Kerns, 585 F.3d at 192; see also Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D.Md.2003) ("[T]he court may look beyond the pleadings and `the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.'"). A plaintiff carries the burden of establishing subject matter jurisdiction. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.1999).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is "to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006).
The Supreme Court's recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), "require that complaints in civil actions be alleged with greater specificity than previously was required." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). The Supreme Court's decision in Twombly articulated "[t]wo working principles" that courts must employ when ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. First, while a court must accept as true all the factual allegations contained in the complaint, legal conclusions drawn from those facts are not afforded such deference. Id. (stating that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to plead a claim); see also Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir.2012) ("Although we are constrained to take the facts in the light most favorable to the plaintiff, we need not accept
Second, a complaint must be dismissed if it does not allege "a plausible claim for relief." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Under the plausibility standard, a complaint must contain "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although the plausibility requirement does not impose a "probability requirement," id. at 556, 127 S.Ct. 1955, "[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." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; see also Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir.2012) ("A complaint need not make a case against a defendant or forecast evidence sufficient to prove an element of the claim. It need only allege facts sufficient to state elements of the claim." (emphasis in original) (internal quotation marks and citation omitted)). In making this assessment, a court must "draw on its judicial experience and common sense" to determine whether the pleader has stated a plausible claim for relief. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. "At bottom, a plaintiff must nudge [its] claims across the line from conceivable to plausible to resist dismissal." Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir.2012) (internal quotation marks omitted).
Under Article III of the United States Constitution, federal courts may only adjudicate "actual cases and controversies." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The doctrine of standing is designed to give effect to this requirement by "ensur[ing] that a plaintiff has a sufficient personal stake in a dispute to render judicial resolution appropriate." Piney Run Preservation Ass'n v. Cnty. Com'rs of Carroll Cnty., Md., 268 F.3d 255, 262 (4th Cir.2001) (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 153 (4th Cir.2000)). In order to establish standing to sue, the plaintiff must demonstrate three basic elements: (1) the plaintiff must have suffered an "injury in fact," (2) the injury must be caused by or "fairly traceable" to the defendant's challenged conduct, and (3) it must be likely that the plaintiff's injury would be redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). When assessing standing before a federal court, "[t]he party invoking federal jurisdiction bears the burden of establishing these elements." Id. at 561, 112 S.Ct. 2130.
In this case, the City argues that the Plaintiffs' allegations are inadequate to establish this Court's jurisdiction. As such, the City's Motion raises a facial challenge, and this Court will determine whether the allegations in the Complaint, when taken as true, are sufficient to establish standing under the plausibility standard of Rule 12(b)(6) and Iqbal/Twombly. See Davis, 367 F.Supp.2d at 799; Zander v. U.S., 786 F.Supp.2d 880, 883 (D.Md.2011) (applying Iqbal/Twombly standard to motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)); see also Kerns, 585 F.3d at 192.
The City's main challenge to Plaintiffs' standing arises under the injury in fact prong; specifically, the City contends that the Plaintiffs have failed to adequately allege injury in fact "because they allege
Under the established injury in fact requirements in environmental cases, Plaintiffs need not "show environmental harm"; rather, they must allege "a direct nexus" between themselves and the "area of environmental impairment." Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 394-95 (4th Cir. 2011). Specifically, they must allege that they "use the affected area" (rather than an area "roughly in the vicinity") and "are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Id. at 397 (internal quotation marks omitted); see also EarthReports, Inc. v. U.S. Army Corps of Engineers, No. 8:10-cv-1834-AW, 2011 WL 4480105, at *4 (D.Md. Sept. 26, 2011) ("To establish an imminent threatened or future injury to his/her use of an area, a plaintiff must assert concrete plans to use the area rather than a vague, `some day' desire to use the area.").
The City asserts that the Plaintiffs have failed to adequately allege injury in fact. The City characterizes the Plaintiffs' allegations as "speculative conclusions" concerning mere "general interests." See Def. City's Mem. Supp. Mot. Dismiss 21-22.
The Complaint details the various uses of several specific Plaintiffs. Plaintiff Bruce Goldfarb, "an avid photographer" and cyclist, bikes along the portions of the Gwynns Falls Trail on the Waterfront Parcels and takes pictures of the flaura and fauna. See Pls.' Compl. ¶ 12. Plaintiff Michael Gallagher walks along the portion of the Trail on the Waterfront Parcels for exercise and to reach downtown Baltimore from his home in the Westport neighborhood. See id. ¶ 15. Plaintiff Tim Bull fishes in the Middle Branch area near the Site "approximately every five (5) months," but has avoided teaching his son to fish in the area due to the alleged contamination. See id. ¶ 17. All three — Goldfarb, Gallagher, and Bull — allege that they are concerned about the contamination at the Site and that their specific usages of the areas surrounding the Site would increase if the contamination were remedied. Accordingly, with respect to Plaintiffs Bruce Goldfarb, Michael Gallagher, and Tim Bull, the Complaint alleges sufficient nexus due to the alleged diminished aesthetic and recreational value of the area to these Plaintiffs.
With respect to Plaintiffs Ruth Sherrill, Sherry Moore-Edmonds, Merab Rice, Elizabeth Arnold, and Julia Dinkins, the analysis is somewhat different. All five live in surrounding areas relative to
Just as in Richardson v. Mayor and City Council of Baltimore, Civ. A. No. RDB-13-1924, 2014 WL 60211 (D.Md. Jan. 7, 2014) — another case before this Court relating to the Casino Site — Plaintiffs have failed to allege either the nature or type of their planned use. Moreover, with the exception Moore-Edmonds, Plaintiffs have merely alleged that they use or recreate on the "Gwynns Falls Trail" but make no mention of the specific portion of the Trail running through the Waterfront Parcels. This general statement fails to allege any nexus with the affected area itself rather than an area that is simply in the general vicinity of the Site. See Richardson, 2014 WL 60211, at *4. Therefore, Plaintiffs Ruth Sherrill, Sherry Moore-Edmonds, Merab Rice, Elizabeth Arnold, and Julia Dinkins have failed to adequately allege facts to support their standing to sue and, accordingly, their claims are dismissed.
With respect to the remaining Plaintiffs Goldfarb, Gallagher, and Bull, the City obliquely references the causation prong, arguing that Plaintiffs have failed "to explain how the City's alleged RCRA violations at the Casino Site impact the Waterfront Parcels, the Gwynns Falls Trail, and the Middle Branch or lessen the Plaintiffs' use of ... [those areas]." Def. City's Mem. Supp. Mot. Dismiss 23. However, the Complaint alleges that the City "moved, mixed, stockpiled, backfilled and/or graded contaminated soils and groundwater at the Casino Site." Id. ¶ 92. In addition, Plaintiffs allege that the City failed to control or remediate known contamination at the Site or prevent the migration of the contamination to the Waterfront Parcels. See id. ¶ 71. These activities have allegedly "contribute[d] to and/or exacerbate[d] the contamination in the soils and groundwater at the Casino Site and the Waterfront Parcels." Id. ¶ 101. Finally, Plaintiffs allege that many of the contaminants at the Site migrate into the Middle Branch on an ongoing basis. See, e.g., id. ¶ 87. Regardless of whether Plaintiffs' allegations are sufficient to state a claim under RCRA, the allegations summarized above are sufficient to establish the causation or traceability required to establish standing for these three Plaintiffs.
Although RCRA provides for suits by private citizens, the Plaintiffs Goldfarb, Gallagher and Bull must comply with the notice requirements of the statute. Under both § 6972(a)(1)(A) and § 6972(a)(1)(B), plaintiffs must provide notice to the EPA
40 C.F.R. § 254.3(a). The regulation also requires the notice to "state the name, address, and telephone number of the legal counsel, if any, representing the person giving the notice." Id. § 254.3(c).
Under current United States Supreme Court precedent, the notice requirements of the statute are to be strictly construed. See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 26, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989). In fact, if a plaintiff fails to satisfy the notice requirements, a district court is without subject matter jurisdiction to hear the case. See Blumenthal Power Co. v. Browning-Ferris, Inc., No. 94CV2612, 1995 WL 1902124, at *4 (D.Md. Apr. 19, 1995). In this case, Defendants have challenged both the timing and content of Plaintiffs' notice.
Plaintiff Bull originally sent notice to CBAC Gaming, Maryland Chemical, the City, Daniel China (General Counsel for Whiting Turner), and officials at the EPA and the Maryland Department of the Environment on May 3, 2013.
The City contends that Plaintiffs Goldfarb and Gallagher are not properly before the Court because they filed suit less than sixty days after first providing notice of their claim. See City's Mem. Supp. Mot. Dismiss 20 n. 15. Plaintiffs' Notice, however, clearly states that Plaintiffs' claims pertained to "hazardous waste violations."
Both the CBAC Defendants and the City assert that the content of Plaintiffs' Notice is deficient. The CBAC Defendants argue that, although the "Notices state that Plaintiffs intend to sue Defendants under § 6972(b)(1)(A)," they have only referenced "general provisions of RCRA, rather than specific references to how CBAC Gaming has violated RCRA." Def. CBAC's Mem. Supp. Mot. Dismiss 16. Additionally, the CBAC Defendants argue that the Notice fails to identify "the specific hazardous waste being treated, stored and/or disposed of as well as the dates of any alleged violation." Id. Meanwhile, the City contends that:
Def. City's Mem. Supp. Mot. Dismiss 19.
As discussed above, federal law requires the notice to include (1) the permit, regulation, or requirement allegedly violated, (2) the alleged illegal activity, (3) the alleged responsible individual, (4) the date(s) of the violation, (5) the name, address, and telephone number of the plaintiff, and (6) the name, address, and telephone number of plaintiff's counsel. 40 C.F.R. § 254.3. Turning to Plaintiffs' September 2013 Notice, it is clear that Plaintiffs Goldfarb, Gallagher, and Bull have satisfied their duties. The September Notice identifies a number of substantive hazardous waste regulations in the Code of Federal Regulations and the Code of Maryland Regulations. See September NOI 14-16; see also supra note 23. The Notice also identifies the City and the CBAC Defendants as those entities responsible for the violations, and it states that the "excavating, stockpiling, grading and/or backfilling contaminated soils and groundwater" caused the spread of a number of expressly identified contaminants at the Site.
Before turning to the merits of the Defendants' arguments with respect to liability under the Resource Conservation and Recovery Act, this Court addresses Plaintiffs' Motion for Leave to File Sur-Reply (ECF No. 33). As this Court has previously indicated, surreplies are not usually part of this Court's usual briefing schedule:
MTB Servs., Inc. v. Tuckman-Barbee Const. Co., Civ. A. No. RDB-12-02109, 2013 WL 1224484 (D.Md. Mar. 26, 2013).
Here, Plaintiffs contend that the Defendants raised three new arguments and/or theories regarding the interplay between the Maryland Voluntary Cleanup Program, the federal Resource Conservation and Recovery Act, and the discharge permit issued under the Clean Water Act.
The CBAC Defendants did in fact include some argument as to the effect of the nonduplication provision of RCRA in their opening brief. See Def. CBAC's Mem. Supp. Mot. Dismiss 13-15 (including section titled "Counts I and II should be Dismissed Pursuant to Rules 12(b)(1) & 12(b)(6) Because CBAC Gaming's NPDES Permit Shields CBAC from Liability Under RCRA"). Nevertheless, this Court finds that the CBAC Defendants' Reply brief articulates new, alternative theories that were not fully developed in its opening brief. Moreover, the Proposed Sur-Reply provides argument and discussion that is relevant and will aid the Court in reaching a decision. See Minter v. Wells Fargo Bank, N.A., 283 F.R.D. 268, 270 n. 3 (D.Md.2012) ("The Court finds, however, that the filing of a surreply is warranted because it addresses evidence raised for the first time in the reply. The surreply provides context for this evidence that will aid the Court in reaching a just decision. As such, the Court will grant the motion for leave to file a surreply."). Accordingly, this Court will grant Plaintiffs' Motion for Leave to File Sur-Reply.
The Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., ("RCRA") is a comprehensive regulatory scheme designed to govern the treatment, disposal, and storage of solid and hazardous wastes from their creation to their destruction or ultimate disposal. Plaintiffs contend that the Defendants' activities at the Site subject them to liability under the Act. Defendants dispute their liability and proffer several different arguments in support of their position. First, the CBAC Defendants assert that their stormwater discharge permit shields them from any RCRA liability. Second, all Defendants argue that Plaintiffs have failed to allege plausible claims against them.
The CBAC Defendants contend that the Site's stormwater discharge permit shields them from any RCRA liability. Specifically, the CBAC Defendants contend the Site has been included under the Maryland Department of the Environment General Permit for Stormwater Associated with Construction Activity ("Maryland General Construction Stormwater Permit" or "the Permit"), a general National Pollutant Discharge Elimination System (a "NPDES permit") industrial discharge permit.
In their Sur-Reply, Plaintiffs present several different arguments in an attempt to thwart Defendants' reliance upon the NPDES permit, the CBAC Defendants' inculpable person status,
The anti-duplication provision of the Resource Conservation and Recovery Act provides that "nothing in [this Act] shall be construed to apply to (or to authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.) ... except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts." 42 U.S.C. § 6905(a). In cases where this provision is applicable, "Defendants have the burden `to show that ... an inconsistency would result.'" Raritan Baykeeper, Inc. v. NL Industries, Inc., Civ. A. No. 09-cv-4117, 2013 WL 103880, at *27 (D.N.J. Jan. 8, 2013) (quoting Legal Environmental Assistance Foundation, Inc. v. Hodel, 586 F.Supp. 1163, 1167 (E.D.Tenn.1984)).
Meanwhile, the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. — commonly known as the Clean Water Act — regulates the discharge of pollutants from point sources into the navigable waters of the United States. Of note in this case is the permit requirement for stormwater discharges "associated with industrial activity." 40 C.F.R. § 122.26(a)(1)(ii); see also 40 C.F.R. § 122.26(b)(14)(x) (defining "storm water discharge associated with industrial activity" and identifying "industrial activity" as, inter alia, "[c]onstruction
Turning to the facts of this case, this Court recognizes that the Maryland Voluntary Cleanup Program is — as its name implies — a voluntary program imposing no legal requirements of its own. Nevertheless, this Court cannot simply ignore the language of the NPDES permit applicable in this case. NPDES permits are interpreted in the same manner as contracts and, "if the language is plain and capable of legal construction, the language alone must determine the permit's meaning." Piney Run Preservation Ass'n v. County Com'rs of Carroll Cnty., MD, 268 F.3d 255, 269-70 (4th Cir.2001) (internal quotation marks omitted). Notably, the Maryland General Construction Stormwater Permit
Def. CBAC's Mem. Supp. Mot. Dismiss Ex. 17, Part II.A.3. Moreover, the Permit requires the implementation of control measures sufficient "to meet applicable water quality standards" and notes that "stormwater controls developed, implemented, and updated consistent with the laws and regulations cited in Part II.A." — i.e., the sediment control and stormwater management provisions cited above — are generally considered sufficient to meet "applicable water quality standards." Id. at Part IV.A.1. Most importantly, the Permit requires the CBAC Defendants to "comply with erosion and sediment control and stormwater management plans approved in accordance with the laws and regulations cited in Part II.A.3 above." Id. at Part VI.A.
In turn, the approved erosion and sediment control and stormwater management plans for the Site expressly refer to the Response Action Plan. For example, the "Initial Conditions Sediment Controls Plan," under the "Maryland Department of the Environment Response Action Plan(s)(RAP) General Construction Notes" section, states that "the contractor shall follow all guidelines set forth in the RAP and its amendments for all construction related activities on the Site." Def. CBAC's Mem. Supp. Mot. Dismiss Ex. 6 C-30-1; see also, e.g., id. at C 50-06 ("Construction specifications shall be subject to the provisions in the Final RAP Report and the Final Geotechnical Report."). As such, the erosion and sediment control and stormwater management plans for the Site expressly incorporate the remedial measures identified in the Response Action Plan and expressly state that compliance with and performance of these measures is a requirement of the sediment control and stormwater management plans.
Thus, in summary, the general NPDES permit, under which the Site is now included, requires compliance with the sediment control and stormwater management plans and, in turn, those plans require compliance with the "voluntary" Response Action Plan. In assessing whether the Response Action Plan imposes any legal obligations upon the CBAC Defendants in light of this regulatory chain, it is worth noting that the Response Action Plan and the sediment control and stormwater management plans were approved by different regulatory entities. The Maryland Department of the Environment oversees Response Action Plans under the Maryland Voluntary Cleanup Program, while the City oversees the sediment control and stormwater management plans. Thus, it was the City's decision to include compliance with the MDE-formulated Response Action Plan
In an attempt to trigger the "no inconsistency" exception of the anti-duplication provision, Plaintiffs emphasize that NPDES permits typically regulate discharges from point sources rather than point sources themselves. In support of their position, Plaintiffs also highlight RCRA's definition of "solid waste" in an attempt to limit the effect of the antiduplication provision in this case. In particular, Plaintiffs cite 40 C.F.R. § 261.4 and accompanying comment, which states:
Pls.' Mem. Supp. Mot. Leave File Sur-Reply 12-13 (citing 40 C.F.R. § 261.4).
While the cited regulations are indeed relevant in determining whether the materials washing off the Site are "solid waste" for purposes of RCRA, they are not fully determinative of this Court's analysis of the applicability of RCRA's anti-duplication provision.
In this case, of course, any stormwater discharge from the Site is clearly covered by the Maryland General Construction Stormwater Permit. The somewhat closer question is whether the CBAC Defendants' construction activities themselves are regulated under the Clean Water Act and could be further regulated under RCRA without the creation of a regulatory inconsistency.
Moreover, a ruling in Plaintiffs' favor would require this Court to simply ignore express provisions in the Maryland General Construction Stormwater Permit and the sediment control and stormwater management plans. Plaintiffs have not directly challenged the inclusion of the specific provisions regarding movement or removal of contaminated soils as part of a NPDES permit,
Having dismissed the CBAC Defendants, this Court will now address the adequacy of Plaintiffs' substantive claims as to the remaining Defendants Maryland Chemical and the City.
Plaintiffs first count asserts a claim against the City and the CBAC Defendants
The Complaint identifies a number of regulations that the Defendants have allegedly violated.
The Complaint states that various environmental assessments identified "`hot spots' (i.e., highly concentrated concentrations of contaminants at various depths and various locations) in the surface and
Id. ¶¶ 91-93. In the Plaintiffs' view, these activities constitute the generation of "`solid waste' and/or `hazardous waste,' as those terms are defined in 40 C.F.R. § 261.2; Md.Code Ann., Envir., § 7-201; COMAR 26.13.01.03B, COMAR 26.13.02.02 and COMAR 26.13.02.03."
Of course, these specific allegations must be viewed in light of the over-arching claims in this case. Notably, Plaintiffs allege that the City's construction activities were conducted "in order to, among other things, address abandoned pits used during previous industrial operations which contained contaminated groundwater and/or rainwater and remove at least one (1) UST located at the Russell Street Properties." Id. ¶ 92. Plaintiffs provide no factual allegations to explain how the removal of contaminated soil and/or sources of potential contaminants actually exacerbated or contributed to contamination at the Site. Similarly, Plaintiffs have
Plaintiffs' second count asserts a claim against all Defendants pursuant to 42 U.S.C. § 6972(a)(1)(B), which creates liability for entities that contribute to the contamination of sites with hazardous waste that poses a special danger to the public or environment.
42 U.S.C. § 6972(a)(1)(B). Thus, a proper defendant to a § 6972(a)(1)(B) claim must have contributed to the situation giving rise to the health or environmental hazard. While "contribution" under § 6972(a)(1)(B) is generally broadly construed, the case law interpreting the term requires some degree of active human conduct. See SPS Limited Partnership, LLLP v. Severstal Sparrows Point, LLC, 808 F.Supp.2d 794, 806-07 (D.Md.2011) (summarizing cases and concluding that migration of contaminants from coke ovens was insufficient to state a § 6972(a)(1)(B) claim).
The "imminent and substantial endangerment" requirement is the other key component of a § 6972(a)(1)(B) claim. "An endangerment is a `reasonable cause for concern that someone or something may be exposed to a risk of harm ... if remedial action is not taken.'" Adams v. NVR Homes, Inc., 135 F.Supp.2d 675, 688 (D.Md.2001) (quoting Foster v. U.S., 922 F.Supp. 642, 661 (D.D.C.1996)), reconsideration granted on other grounds 142 F.Supp.2d 649 (D.Md.2001). As explained in Meghrig v. KFC Western, Inc., 516 U.S. 479, 485-86, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996), "an endangerment can only be imminent if it threatens to occur immediately,... and the reference to waste which may present imminent harm quite clearly excludes waste that no longer presents such a danger." Id. at 485-86, 116 S.Ct. 1251 (internal citations and quotations omitted). Moreover, an endangerment is "substantial" if it is "`serious' and `there [is] some necessity for action.'" Adams, 135 F.Supp.2d at 688 (quoting Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir.1994)).
All Defendants argue that the Plaintiffs have not adequately pled a claim under § 6972(a)(1)(B) because Plaintiffs have not pled any facts demonstrating affirmative action that would constitute "contribution." Def. CBAC's Mem. Supp. Mot. Dismiss 20; Def. City's Mem. Supp. Mot Dismiss 28; Def. MD Chem's Mem. Supp. Mot. Dismiss 14. The Complaint alleges various actions by each of the Defendants. Plaintiffs allege "contribution" on the part of Maryland Chemical due to "spilling, releasing, and/or disposing of hazardous wastes" at the Site. See Pls.' Compl. ¶¶ 51, 134. Plaintiffs provide no further factual details concerning the events that precipitated these alleged releases.
With respect to the City, Plaintiffs allege contribution by means of the "excavating, moving, mixing, backfilling and/or grading contaminated soils and/or groundwater" performed at the Casino Site. Pls.' Compl. ¶ 137. Essentially, Plaintiffs contend that the City contributed to the contamination hazard by redistributing the contaminated soils and/or groundwater around the Site by means of their earth-moving activities. Several courts have held that similar types of activities constitute "active" conduct that may give rise to liability under § 6972(a)(1)(B). See, e.g., Raritan Baykeeper, Inc. v. NL Industries, Inc., Civ. A. No. 09-cv-4117 (JAP), 2013 WL 103880, at *13 (D.N.J. Jan. 8, 2013) (holding that defendants' activities at site, including on-site remediation, excavation, and capping, constituted active conduct). Nevertheless, as explained in Part IV.B.1, Plaintiffs have failed to state any plausible factual allegations with respect to disposal of hazardous waste (as opposed to removal of contaminated soil and other remedial activities) at the Site. Accordingly, Plaintiffs have failed to state a claim under § 6972(a)(1)(B) as to the City as well.
For the reasons stated above, Plaintiffs' Motion for Leave to File Sur-Reply (ECF No. 33) is GRANTED. In addition, Defendants CBAC Gaming, LLC and CBAC Borrower, LLC's Motion to Dismiss (ECF No. 11), Defendant Maryland Chemical Company, Inc.'s Motion to Dismiss (ECF No. 13), and Defendants Mayor and City Council of Baltimore and Baltimore Development Corporation's Motion to Dismiss (ECF No. 15) are GRANTED.
A separate Order follows.
For the reasons stated in the foregoing Memorandum Opinion, it is this 16th day of July, 2014, ORDERED that:
The 2005 environmental assessment, however, did not test for volatile organic compounds (such as PCE, TCE, etc.) which had previously been identified by testing at the Russell Street Properties. Id. ¶ 62.
Pls.' Mot. File Sur-Reply 2-3, ECF No. 33.
Under Maryland law, the definition is similar: "Industrial wastewater discharges that are point source discharges permitted pursuant to § 402 of the Clean Water Act, as amended, or permitted pursuant to Environment Article, §§ 9-324-9-332, Annotated Code of Maryland" "are not solid wastes for the purpose of [the Identification and Listing of Hazardous Waste chapter]." COMAR 26.13.02.04A(2).
Pls.' Compl. ¶¶ 117-124 (emphasis added).
Notably, the parties agree that Maryland's regulatory requirements are the applicable standards in this case due to the fact that EPA has approved a state-run hazardous waste program pursuant to 42 U.S.C. § 6926. See Def. CBAC's Reply 4 & n. 4, ECF No. 30; Pls.' Resp. 32 n. 9, ECF No. 24.
Section 26.13.02.03 states that "[a] solid waste, as defined in [COMAR 26.13.02.02], is a hazardous waste if (1) it is not excluded from regulation as a hazardous waste under [COMAR 26.13.03.04-1]; and (2) ... (b) it is listed in [COMAR 26.13.02.15-19] and has not been excluded from the lists by COMAR 26.13.01.04A and C.
Both sides point to Potomac Riverkeeper, Inc. v. National Capital Skeet & Trap Club, Inc. in support of their arguments. In that case, the plaintiff asserted a claim under § 6972(a)(1)(A), alleging that the wash out of spent lead shot constituted a violation of EPA regulations prohibiting disposal of solid waste in a flood plain. The defendant club argued that the Plaintiff had failed to state a claim because the Plaintiff had not alleged that "additional lead shot [had] been introduced into the environment" by the club or its members for some time. Judge Quarles of this Court rejected this argument, noting that "[t]he movement of previously disposed solid waste may constitute a violation of RCRA." Nat'l Capital Skeet & Trap, 388 F.Supp.2d. 582, 587 (D.Md.2005). Judge Quarles noted:
Id. Having noted conflicting evidence on the issue whether the continuous washouts posed a threat to wildlife, land, and water resources, Judge Quarles ultimately denied summary judgment. Id. at 587-88.
In their papers, Plaintiffs rely upon National Capital Skeet & Trap as support for the legal principle that passive migration qualifies as an ongoing violation. The City, however, asserts that the case actually supports its own position; in the City's view, the cases are distinguishable because the defendant club in National Capital Skeet & Trap had dumped the waste in question, whereas the City has not dumped or added any waste to the Site. Def. City Reply 9-10, ECF No. 32. In light of Plaintiffs' failure to plausibly allege any disposal on the part of the City, this Court need not resolve the applicability of National Capital Skeet & Trap in this case.
