United States District Court, W.D. Missouri, Western Division
STEPHEN R. BOUGH, JUDGE UNITED STATES DISTRICT COURT.
this Court is Defendant Kansas City Power & Light
Company's Motion to Dismiss Plaintiff's Complaint.
(Doc. #13). On June 5, 2019, the Court held a hearing on
Defendant's motion. For reasons discussed at the hearing
and below, the motion is granted in part and denied in part.
brings its motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6).Under Rule 12(b)(6), a court may dismiss a
claim for “failure to state a claim upon which relief
can be granted.” “To survive a motion to dismiss
[for failure to state a claim], a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations
and quotation marks omitted) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)); Zink v.
Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015). “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.” Ash v. Anderson Merchs., LLC, 799
F.3d 957, 960 (8th Cir. 2015) (internal citation quotation
marks omitted) (quoting Iqbal, 556 U.S. at 678). The
Court must accept all facts alleged in the complaint as true
when deciding a motion to dismiss. Data Mfg., Inc. v.
United Parcel Serv., Inc., 557 F.3d 849, 851 (8th Cir.
2009) (noting “[t]he factual allegations of a complaint
are assumed true and construed in favor of the plaintiff,
even if it strikes a savvy judge that actual proof of those
facts is improbable”). However, allegations that are
“legal conclusions or formulaic recitation of the
elements of a cause of action . . . may properly be set
aside.” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009) (internal quotation marks
omitted) (quoting Iqbal, 556 U.S. at 677)
Substation K, Inc.'s Complaint alleges the following
facts, which the Court accepts as true in deciding
Defendant's motion. Data Mfg., 557 F.3d at 851.
Plaintiff seeks relief for alleged environmental law
violations and state-law claims relating to a facility in
Kansas City, Missouri (the “Site”). (Doc. #1,
¶ 2). Defendant “owned and operated the Site
beginning in or about 1911 and continuously thereafter
through on or about January 1, 1961.” (Doc. #1, ¶
2). During these five decades, Defendant “operated the
Site as a Sub-Station for its railway and electrical
conversion and distribution businesses.” (Doc. #1,
¶ 2). These operations “included the use of
significant quantities of toxic chemicals, ” including
polychlorinated biphenyl (“PCB”). (Doc. #1,
¶ 2). Plaintiff has owned the Site since December 1996.
(Doc. #1, ¶ 3). From December 1996 through July 2017,
Plaintiff “utilized the Site as commercial office space
supporting its video production and post production
business.” (Doc. #1, ¶ 3). “Preliminary
investigative activities” conducted in May and June
2017 revealed “the presence of PCB and various
chlorinated solvents or volatile organic compounds . . . in
the soils and groundwater in, at, on, underlying, emanating
from and in the vicinity of the Site.” (Doc. #1,
¶¶ 41-42). “Because of their toxicity, each
of these substances is subject to comprehensive federal
regulations.” (Doc. #1, ¶¶ 5). Samples taken
at the Site “confirmed” levels of these
substances “in soil and groundwater at the Site which
exceed standards established by the United States
Environmental Protection Agency and the State of
Missouri.” (Doc. #1, ¶ 42). “The PCB,
hazardous waste and solid waste abandoned, discharged and
disposed of by [Defendant] . . . may present an imminent and
substantial endangerment to health or the environment.”
(Doc. #1, ¶ 45).
September 6, 2018, Defendant received a letter from Plaintiff
titled “Notice of Violation and Intention to Sue
Pursuant to 15 U.S.C. § 2619 and 42 U.S.C. §
6972” (“Notice”). (Doc. #14-1). On January
15, 2019, Plaintiff filed this lawsuit, bringing claims for
violation of the Toxic Substances Control Act
(“TSCA”), 15 U.S.C. § 2601 et seq.
(Count I); violations of the Resource Conservation and
Recovery Act (“RCRA”), 42 U.S.C. § 6901
et seq. (Counts II and III); public nuisance per
se (Count IV); recovery of nuisance abatement costs
(Count V); and negligence (Count VI). (Doc. #1). Regarding
Defendant's alleged TSCA and RCRA violations, Plaintiff
“seeks mandatory, prospective injunctive
relief.” (Doc. #1, ¶¶ 2). Defendant
brings the present motion to dismiss, arguing that the Court
lacks subject-matter jurisdiction over Counts I-III because
Plaintiff failed to comply with the notice requirements under
TSCA and RCRA and that all of Plaintiff's Counts fail to
state a claim upon which relief can be granted. (Doc. #14).
Plaintiff's Notice of Violation
and RCRA both include citizen suit provisions, under which
any person has standing to sue for violations. 15 U.S.C.
§ 2619; 42 U.S.C. § 6972. These citizen suit
provisions each impose notice and delay requirements that a
person must satisfy before bringing a citizen suit. 15 U.S.C.
§ 2619(b); 42 U.S.C. § 6972(b); Hallstrom v.
Tillamook County, 493 U.S. 20, 23, 31 (1989)
that TSCA's and RCRA's notice and delay requirements
are “patterned after” those in the Clean Water
Act and holding that RCRA notice and delay requirements
“are mandatory conditions precedent to
commencing” a RCRA citizen suit and that “the
district court must dismiss” an action “where a
party suing under the citizen suit provisions of RCRA fails
to meet” these requirements). Under TSCA, this notice
include sufficient information to permit the recipient to
identify: (1) The specific provision of TSCA or of the rule
or order under TSCA alleged to have been violated. (2) The
activity alleged to constitute a violation. (3) The person or
persons responsible for the alleged violation. (4) The
location of the alleged violation. (5) The date or dates of
the alleged violation as closely as the citizen is able to
specify them. (6) The full name, address, and telephone
number of the citizen giving notice.
40 C.F.R. § 702.62. Under RCRA, the required content for
notices is nearly identical to that under TSCA. Defendant argues
that the statutory notice requirements are jurisdictional
prerequisites and that, because Plaintiff failed to
sufficiently comply with these notice requirements, this
Court lacks subject-matter jurisdiction over Plaintiff's
TSCA and RCRA claims. (Doc. #14, pp. 7-10). Plaintiff argues
that the notice requirements are not jurisdictional and that
it has satisfied them. (Doc. #22, pp. 6-8).
without answering the jurisdictional question, the Court
finds that Plaintiff satisfies each statute's notice
requirement. The Notice states that Plaintiff's
“suit will allege a violation, among other things,
of” several sections of TSCA, RCRA, and related
regulations. (Doc. #14-1, p. 8-10). The Notice also discusses
Defendant's alleged activities that constitute the
violations, the person responsible for the alleged
violations, the location and dates of the alleged violations,
and the contact information of the citizen giving notice.
(Doc. #14-1, pp. 81-3, 8-10). Insufficient notice ...