Ebert v. Gen. Mills, Inc., Civil No. 13–3341 DWF/JJK.

48 F.Supp.3d 1222

Karl EBERT, Carol Krauze, and Jackie Milbrandt, individually and on behalf of others similarly situated, Plaintiffs

v.GENERAL MILLS, INC., Defendant.

Civil No. 13–3341 DWF/JJK.

United States District Court, D. Minnesota.

Signed Sept. 4, 2014.

Edward J. Manzke, Esq., and Shawn M. Collins, Esq., The Collins Law Firm PC; Michael D. Hayes, Esq., and Norman B. Berger, Esq., Varga Berger Ledsky Hayes & Casey; and Anne T. Regan, Esq., and J. Gordon Rudd, Jr., Esq., Zimmerman Reed, PLLP; and Mark H. Thieroff, Esq., Siegel Brill, P.A., counsel for Plaintiffs.

Benjamin W. Hulse, Esq., Corey Lee Gordon, Esq., Emily A. Ambrose, Esq., Jerry W. Blackwell, Esq., and Wendy M. Carlisle, Esq., Blackwell Burke PA; and Jeffrey Fowler, Esq., O'Melveny & Myers LLP; and Mark J. Carpenter, Esq., Carpenter Law Firm PLLC, counsel for Defendant.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, District Judge.

INTRODUCTION

This matter is before the Court on Defendant General Mills, Inc.'s (“GMI” or “Defendant”) Motion to Dismiss the Second Amended Complaint (“SAC”). (Doc. No. 97.) For the reasons set forth below, the Court denies the motion.

BACKGROUND

Plaintiffs Karl Ebert (“Ebert”), Carol Krauze (“Krauze”), and Jackie Milbrandt (“Milbrandt”), individually and on behalf of others similarly situated (collectively, “Plaintiffs”), allege that GMI owned and operated an industrial facility (the “GMI Facility”) in the Como neighborhood of Minneapolis from 1930 to 1977. (Doc. No. 87, “SAC” ¶¶ 2, 6.) From 1947 to 1962, GMI disposed of thousands of gallons of hazardous substances per year by burying it in perforated drums in the ground at the GMI Facility. (Id. ¶¶ 2, 12–14.) The hazardous substances included the toxic chemical trichloroethylene (“TCE”), a known human carcinogen. (Id. ¶ 12.) Plaintiffs allege that TCE and other chemicals in the form of toxic vapors have migrated “beneath, inside or immediately adjacent to” the surrounding area (the “Area” or the “GMI Site”), including all of the homes in the Class area, and that the Area has been contaminated by the vapors as a result. (Id. ¶¶ 2, 12, 15.)

According to GMI, the GMI Facility was listed on the United States Environmental Protection Agency's (“USEPA”) National Priorities List in 1984. (Doc. No. 99 at 4.) GMI then entered into a Response Order by Consent (“Consent Order”) with the Minnesota Pollution Control Agency (“MPCA”) to fulfill its obligations to remediate environmental hazards at the GMI Facility. (Doc. No. 100 (“Hulse Decl.”) ¶ 4, Ex. 1 (“Consent Order”); see also Doc. No. 99 at 4.) The Consent Order includes the following language:

This RESPONSE ORDER BY CONSENT (Order) is issued pursuant to the authority vested in the Minnesota Pollution Control Agency (MPCA) by the Environmental Response and Liability Act of 1983 (ERLA), Minn.Stat. Ch. 115B, and Minn.Stat. Chs. 115 and 116.

(Id. at 1.) Since then, GMI has been implementing remedial actions with respect to groundwater, subject to five-year reviews by the MPCA. (See Hayes Decl. ¶ 5, Ex. 3.)

The MPCA and USEPA entered into other agreements addressing the remedial actions at the GMI Facility, including: a Superfund Memorandum of Agreement (“SMOA”) in 1994 (Doc. No. 110, (“Second Hulse Decl.”) ¶ 3, Ex. A (“SMOA”)), and an Enforcement Deferral Pilot Project (“Deferral Project”) in 1995 (Doc. No. 108, (“Hayes Decl.”) ¶ 6, Ex. 4 (“Deferral Project”)). The SMOA “delineate [s] the respective roles and responsibilities of [USEPA, Region V(EPA), and the State of Minnesota by its MPCA] as they relate to the conduct of a Superfund program to clean up hazardous waste sites in the State.” (SMOA at 1.) The Deferral Project related to thirteen sites, and deferred authority over all remedial actions to the MPCA, which had “full responsibility” to administer, “investigate and clean up” the sites in the program “through its authority under MERLA.” (Deferral Project at 50–51.) The GMI Facility was on the original Deferral Pilot Project list and remains on the list today. (Hayes Decl. ¶ 5, Ex. 3.)

In 2014, the MPCA and GMI modified the Consent Order (the “2014 Modification”) to require:

[GMI] to conduct vapor sampling beneath buildings in the vicinity of its former facility, install mitigation systems in qualifying homes, conduct a comprehensive vapor intrusion investigation ... and identify and evaluate the feasibility of potential remedial technologies to address soil, soil gas and groundwater as necessary to adequately protect human health and the environment.

(Hulse Decl. ¶ 5, Ex. 2 (“2014 Modification”).)

Ebert, Krauze, and Milbrandt own residential property in the Area. (SAC ¶¶ 7–8.) Plaintiffs brought this suit individually and on behalf of all others similarly situated. (See id. ¶¶ 1–8.) Plaintiffs allegedly first learned of the TCE vapor contamination in and around their homes in 2013. (Id. ¶ 15.) Plaintiffs allege that the vapors threaten the health of residents in the Area, have negatively impacted the value of homes in the Area, and have affected the Area residents' reasonable use and enjoyment of their properties. (Id. ¶¶ 2–3, 15–16, 38, 42.) Plaintiffs also allege that upon learning of the TCE vapor contamination, Ebert and Krauze incurred out-of-pocket costs to gauge the threat of any released vapors inside of their home and to assess any structural issues related to interim remedial measures. (Id. ¶ 32.) Milbrandt alleges she incurred out-of-pocket expenses to install an air filtration system and mitigate any health threats posed by the TCE vapors. (Id. )

Plaintiffs further allege that GMI has failed to adequately investigate and remediate the contamination, and, as a result, the vapors continue to migrate into the Area. (Id. ¶¶ 4–5, 15, 17, 34, 36, 38–39, 41–42, 45–46.) GMI is installing vapor mitigation systems (“VMS”) at Ebert's and Krauze's homes to address any threat posed by TCE vapor contamination and as required in the 2014 Modification. (Id. ¶ 7; see 2014 Modification.) However, Plaintiffs allege that VMS systems are only remedial measures and will not substantially remediate the relevant properties. (SAC ¶ 7.)

Plaintiffs seek damages and injunctive relief for the alleged past and present contamination of the entire Area by the continued migration of TCE released from the GMI Facility, as well as Defendant's alleged failure to properly remediate the contamination. (Id. ¶¶ 1–5.) In the SAC, Plaintiffs assert the following claims: (1) “response costs” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a) ; (2) negligence; (3) private nuisance; (4) willful and wanton misconduct; and (5) violation of the Resources Conservation and Recovery Act (“RCRA”), § 6972(a)(1)(b). (Id. ¶¶ 26–61.) Defendant now moves to dismiss Plaintiffs' claims in their entirety. (Doc. No. 97.)

DISCUSSION

I. Legal Standard

A. Rule 12(b)(1)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the Court's subject matter jurisdiction. To survive a motion to dismiss for lack of subject matter jurisdiction, the party asserting jurisdiction has the burden of proving jurisdiction. VS Ltd. P'ship v. Dep't of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir.2000) (citation omitted). “Subject matter jurisdiction is a threshold requirement which must be assured in every federal case.” Kronholm v. Fed. Deposit Ins. Corp., 915 F.2d 1171, 1174 (8th Cir.1990).

A motion to dismiss for lack of subject matter jurisdiction may challenge a plaintiff's complaint either on its face or on the factual truthfulness of its averments. Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.1990) (citations omitted). When a defendant brings a facial challenge—a challenge that, even if truthful, the facts alleged in a claim are insufficient to establish jurisdiction—a court reviews the pleadings alone, and the non-moving party receives the same protections as it would defending against a motion brought pursuant to Rule 12(b)(6). Id. (citation omitted).

In a factual challenge to jurisdiction, the court may consider matters outside the pleadings, and the non-moving party does not benefit from the safeguards of Rule 12(b)(6). Id. at 729–30, n. 4 (citations omitted) (holding that on a Rule 12(b)(1) motion challenging subject-matter jurisdiction, the court “has authority to consider matters outside the pleadings”).

B. Rule 12(b)(6)

In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). In doing so, however, a court need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir.1999), or legal conclusions drawn by the pleader from the fact alleged. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). A court may consider the complaint, matters of public record, orders, materials embraced by the complaint, and exhibits attached to the complaint in deciding a motion to dismiss under Rule 12(b)(6). Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.1999).

To survive a motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although a complaint need not contain “detailed factual allegations,” it must contain facts with enough specificity “to raise a right to relief above the speculative level.” Id. at 555, 127 S.Ct. 1955. As the United States Supreme Court reiterated, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). In sum, this standard “calls for enough fact[s...