Cmty. Ass'n for Restoration of the Env't, Inc. v. George & Margaret LLC

954 F.Supp.2d 1151

COMMUNITY ASSOCIATION FOR RESTORATION OF THE ENVIRONMENT, INC., a Washington Non–Profit Corporation; and Center for Food Safety, Inc., A Washington, D.C. Non–Profit Corporation, Plaintiffs,

v.GEORGE & MARGARET LLC, a Washington Limited Liability Company; and George Deruyter & Son Dairy LLC, a Washington Limited Liability Company, Defendants.

No. 13–CV–3017–TOR.

United States District Court, E.D. Washington.

June 21, 2013.

Brad J. Moore, Stritmatter Kessler Whelan Withey Coluccio, Seattle, WA, Charles M. Tebbutt, Law Offices of Charles M. Tebbutt PC, Eugene, OR, for Plaintiffs.

Debora Kathleen Kristensen, Jeffrey C. Fereday, Preston N. Carter, Givens Pursley LLP, Boise, ID, Brendan Victor Monahan, Dustin E. Yeager, Sean A. Russel, Stokes Lawrence Velikanje Moore & Shore, Yakima, WA, Mathew Lane Harrington, Stokes Lawrence Velikanje Moore & Shore, Seattle, WA, for Defendants.

ORDER DENYING DEFENDANTS' JOINT MOTION TO DISMISS

THOMAS O. RICE, District Judge.

BEFORE THE COURT is Defendants' Joint Motion to Dismiss (ECF No. 26). Also before the Court is Defendants' Motion to Strike Declarations (ECF No. 46). These matters were heard with oral argument on June 7, 2013. Charles M. Tebbutt, Brad J. Moore, and Elisabeth A. Holmes appeared on behalf of the Plaintiffs. Debora K. Kristensen, Dustin E. Yeager, Preston N. Carter, and Mathew L. Harrington appeared on behalf of Defendants. The Court has reviewed the briefing and the record and files herein, had the benefit of oral argument, and is fully informed.

BACKGROUND

Defendants are diaries housing a large number of animals, and must handle significant amounts of manure generated by the herd. ECF No. 25 at ¶¶ 32, 36 (First Amended Complaint). The manure is managed in various ways, including: transforming it into compost and selling it, applying it to agricultural fields as fertilizer, and storing liquid manure in lagoons until it is applied to agricultural fields. Id. at ¶¶ 37–42. Plaintiffs (“CARE”) allege that manure is a solid waste under the Resource Conservation and Recovery Act (“RCRA”) because when applied to agricultural fields at above-agronomic levels and leaked from lagoons storing liquid manure it is discarded; thereby causing high levels of nitrates in underground drinking water. CARE alleges that this action is a violation of the RCRA because (1) it causes an imminent and substantial danger to public health and the environment (42 U.S.C. § 6972(a)(1)(B)); and (2) constitutes illegal open dumping (42 U.S.C. § 6945(a)).

In March 2013, the Environmental Protection Agency (“EPA”) exercised its power under section 1431 of the Safe Drinking Water Act (“SDWA”), and entered a Consent Order with Defendants addressing the high level of nitrates in underground drinking water. ECF No. 26–1; see W.R. Grace & Co. v. EPA, 261 F.3d 330, 338–39 (3d Cir.2001) (EPA Administrator may “take action necessary to protect the public's health from an imminent and substantial endangerment created by contaminants in a public water system or an underground source of drinking water.”). The “goal” of the Consent Order is “to achieve drinking water quality that meets the EPA maximum contaminant level (‘MCL’) for nitrate of 10 mg/L in the drinking water aquifer beneath and downgradient of the Dairy Facilities.” ECF No. 26–1, Appx. B at p. 1.

On February 14, 2013, CARE filed the instant lawsuit alleging violations under RCRA. ECF No. 1. CARE was granted leave to file an Amended Complaint in April 2013. See ECF No. 25. Presently before the Court is Defendants' joint motion to dismiss ¹ and motion to strike declarations.

DISCUSSION

I. Defendant's Motion to Strike Declarations

Defendants ask the Court to strike declarations submitted by CARE as part of their response to Defendants' joint motion to dismiss, including: the Shaw Declaration (ECF No. 36) and the “Standing Declarations” (ECF No. 37–41). However, the Court does not rely on any of this evidence for the substance of its ruling on Defendants' joint motion to dismiss. Rather, the Court relies entirely on the Amended Complaint and additional materials appropriately incorporated by reference or a matter of judicial notice. See United States v. Ritchie, 342 F.3d 903, 907–908 (9th Cir.2003) (generally a court may not consider material beyond the pleadings on a 12(b)(6) motion without converting the motion to dismiss to a motion for summary judgment, however, a court may consider materials including documents attached to the complaint, documents incorporated by reference in the complaint, and matters of judicial notice, without converting the motion). Thus, Defendants' motion to strike these exhibits is denied as moot.

II. Defendant's Joint Motion to DismissA. Standard of Review

To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. (“Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id.

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 678–79, 129 S.Ct. 1937. In assessing whether Rule 8(a)(2) is satisfied, the Court first identifies the elements of the asserted claim based on statute or case law. Id. at 678, 129 S.Ct. 1937. The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:

“[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir.2009) ( quoting Iqbal, 129 S.Ct. at 1950).

B. “Solid Waste” Under RCRA

“RCRA is a comprehensive statute that governs the treatment, storage, and disposal of solid and hazardous waste ... so as to minimize the present and future threat to human health and the environment.” Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). Under the citizen suit provision of RCRA, CARE must establish that Defendants are contributing to the “handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). CARE does not allege that the manure is hazardous waste. Thus, the entire focus of the Court's analysis is whether the manure is a “solid waste” within the meaning of RCRA.

Pursuant to RCRA, “solid waste” is defined as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from ... agricultural operations....” 42 U.S.C. § 6903(27) (emphasis added). RCRA does not define “discarded material.” However, the Ninth Circuit has defined the term, according to its ordinary meaning, as “to cast aside; reject; abandon; give up.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1041 (9th Cir.2004) (finding grass residue was not “solid waste” under RCRA). Further, the court in Safe Air found the reasoning of several extra-circuit cases persuasive in identifying whether a material qualifies as “solid waste,” particularly: “(1) whether the material is ‘destined for beneficial reuse or recycling in a continuous process by the generating industry itself;’ (2) whether the materials are being actively reused, or whether they merely have the potential of being reused; (3) whether the materials are reused by its original owner, as opposed to use by a salvager or reclaimer.” Id. at 1043 (internal citations omitted). Recently, the Ninth Circuit analyzed legislative history and further concluded that “[t]he key to whether a manufactured product is a ‘solid waste,’ then, is whether that product ‘has served its intended purpose and is no longer wanted by the consumer.’ ” Ecological Rights Foundation v. Pacific Gas and Elec. Co., 713 F.3d 502, 515 (9th Cir.2013) ( citingH.R.Rep. No. 94–1491(I) at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6240); see also No Spray Coal., Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir.2001) (finding pesticides are not “discarded” when sprayed in the air with the design of effecting their intended purpose). In Ecological Rights, the court found only that wood preservative that “escaped” from wooden utility poles through normal wear and tear at a...