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Becker v. The City of Fort Myers

United States District Court, M.D. Florida, Fort Myers Division

July 8, 2019

LUETRICIA FREEMAN BECKER, TAMBITHA BANKS, and WILLIE BLANKS, individually, and on behalf of a class of persons similarly situated Plaintiffs,

          OPINION AND ORDER[1]


         Before the Court is Defendants City of Fort Myers' Motion to Dismiss the Second Amended Complaint (Doc. 64) and Plaintiffs Luetricia Freeman Becker, Tambitha Blanks, and Willie Blanks' Response in Opposition (Doc. 83).[2] Most of the issues and facts are unchanged from the last motion to dismiss, and the Order on that motion (the “Order”) (Doc. 61) is referenced where relevant below. For these reasons, the Court again grants and denies in part the dismissal of certain claims in the Second Amended Complaint (the “Complaint”) (Doc. 62).

         BACKGROUND [3]

         This case is about dumping sludge on a parcel of land in Fort Myers' Dunbar neighborhood (the “Site”). (Doc. 62 at 7). As a by-product of its water treatment process, the City produced arsenic-contaminated sludge. (Doc. 62 at 6-7). “[O]ver the course of several years, ” the City dumped sludge on the Site. (Doc. 62 at 7). In all, around 25, 000 cubic yards of sludge were disposed of around the Site, which was neither lined nor covered. (Doc. 62 at 7, 12). Now, the sludge remains on the Site leaking arsenic into the soil and ground water in the area. (Doc. 62 at 8-9, 12-13). Over the years, the Florida Department of Environmental Protection (“FDEP”) took soil and ground water samples in the area, confirming high levels of arsenic. (Doc. 62 at 8-10). Also, there is a risk of nearby residents inhaling arsenic dust from the Site. (Doc. 62 at 14-16). The arsenic poses several serious health concerns for people near the Site such as cancer and birth defects. (Doc. 62 at 13-16). On these facts, the Complaint alleges two claims under the Resource Conservation Recovery Act (“RCRA”) and six state law claims for negligence, strict liability, nuisance, and medical monitoring. (Doc. 62 at 18-32).


         A complaint must recite “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This pleading standard “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). A facially plausible claim allows a “court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.So the pleading must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.


         A. Count 1: Open Dumping Under RCRA

         The City moves to dismiss Count 1, which alleges RCRA open dumping. Mostly, the City makes the same argument from the last motion to dismiss-Becker fails to allege any dumping after Congress passed RCRA. (Doc. 64 at 6-9). Becker again counters the sludge disposal is ongoing because of its continued environmental effects. (Doc. 83 at 3-5). But the Complaint still fails to allege any post-RCRA dumping. The Order explained at length why an open dumping claim fails for that reason. (Doc. 61 at 5-11). Because the Court already dismissed Count 1 for the same reason, this dismissal is with prejudice. See Almanza v. United Airlines, Inc., 851 F.3d 1060, 1074-75 (11th Cir. 2017).

         B. Count 2: Imminent and Substantial Endangerment Under RCRA

         Next, the City seeks to dismiss Count 2, which asserts imminent and substantial endangerment to health or the environment. (Doc. 64 at 11-16). According to the City, the Complaint fails to allege any imminent endangerment. (Doc. 64 at 11-16). Becker responds that the Complaint plausibly alleges an imminent and substantial endangerment to Becker and nearby residents in several ways. (Doc. 83 at 6-8).

         Like the last time around, the allegations are sufficient to survive a motion to dismiss. See (Doc. 61 at 13-15). According to the Complaint, there is still sludge on the Site, and it is leaking arsenic into nearby soil and ground water. (Doc. 62 at 12-13). Some Dunbar residents may still use wells for ground water.[4] (Doc. 62 at 8, 13). There is a risk of people inhaling arsenic dust vented from the Site. (Doc. 62 at 14-16). And the Complaint details the potential health risks to those exposed to the arsenic. (Doc. 62 at 13-14). So the Compliant pleads possible imminent and substantial endangerment to Becker and other neighborhood residents. As the Eleventh Circuit noted, a 42 U.S.C. § 6972(a)(1)(B) claim lies when a plaintiff alleges “solid or hazardous waste may present an imminent and substantial endangerment to health or the environment.” Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1014-15 (11th Cir. 2004) (emphasis added) (interpreting the “operative word in the statute [a]s the word ‘may'”). Although it must be “imminent, ” endangerment “means a threatened or potential harm, and does not require proof of actual harm.” Id. at 1015. Based on the allegations at this stage, Becker plausibly pleads the sludge may present an imminent and substantial endangerment. See id.

         It is necessary to correct Becker's apparent misapprehension of the Court's previous analysis, however. As noted, the Court cannot look past the allegations at this stage, even though the City's cleanup efforts may ultimately affect the disposition of this claim. See (Doc. 61 at 3 n.4, 14-15). Becker now argues that endangerment is analyzed at the timing of filing the complaint, citing two non-binding cases. (Doc. 83 at 5, 7). But that is a tough sell. The statute, Supreme Court, and Eleventh Circuit all mandate an analysis focused on present endangerment. 42 U.S.C. § 6972(a)(1)(B) (allowing suit against polluters when waste “may present an imminent and substantial endangerment”); Meghrig v. KFC W., Inc., 516 U.S. 479, 485-86 (1996) (“[T]he reference to waste which ‘may present' imminent harm quite clearly excludes waste that no longer presents such a danger.”); Parker, 386 F.3d at 1014 (“The section applies retroactively to past violations, so long as those violations are a present threat to health or the environment.”). Consistent with the Order, the allegations of imminent and substantial endangerment today, rather than at some point in the past, are determinative here. See (Doc. 61 at 13-15); see also Black Warrior River-Keeper, Inc. v. Drummond Co., No. 2:16-cv-01443-AKK, 2019 WL 2011396, at *22 (N.D. Ala. May 7, 2019) (“The timing of [plaintiff's] suit is irrelevant to whether there is ‘imminent' endangerment.”).

         Next, the City tests the sufficiency of Becker's injury-in-fact allegations. (Doc. 64 at 16). The City argues none of the remaining Plaintiffs have standing to maintain the imminent and substantial endangerment claim. (Doc. 64 at 16). Becker parries that residents, including the named Plaintiffs, live near the site and adequately state this claim. (Doc. 83 at 9). To plead the injury in fact required by Article III, there must be allegations of “a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical.” Parker, 386 F.3d at 1003 (quoting Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353 (11th Cir. 2003)). Not every plaintiff must have standing on each claim; rather, it is “sufficient if one plaintiff has standing to raise . . . RCRA claims.” Id. at 1003 n.10 (citing Jackson v. Okaloosa Cty., Fla., 21 F.3d 1531, 1536-37 (11th Cir. 1994) (stating “at least one named plaintiff must have standing for each of the claims”)). In Parker, the Eleventh Circuit focused on the first named plaintiff for RCRA standing purposes and held that a showing of leaking underground tanks and migrating waste onto plaintiff's property was sufficient. Id.Here, the allegations are enough for standing as to the three ...

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