MEMORANDUM OPINION AND ORDER
The plaintiffs here are residents or owners in a housing development subject to severe groundwater contamination allegedly caused by the defendants’ unpermitted and unlawful dumping of industrial solvents and other hazardous waste. In addition to a toxic tort suit in Indiana state court, they filed a five count complaint in this court. Counts I and II seek treble damages under the Racketeer Influenced and Corrupt Practices Act (“RICO”) for an alleged scheme of mail and wire fraud and obstruction of justice designed to conceal the violations and responsibility from the EPA and the public. Counts III and IV seek injunctive relief under the Resource Conservation and Recovery Act (“RCRA”). In Count V, plaintiff Fred Lands, who owns the site on which defendants allegedly dumped their hazardous waste, seeks damages under the Indiana Responsible Property Transfer Law (“RPTL”). The various defendants have filed motions to dismiss all of the counts. This order addresses those motions relating solely to Counts III, IV, and V [DE 65, 66, 68, 69, 71, 72, 73, 91],
I. BACKGROUND
The plaintiffs’ complaint tells a story of flagrant violations of environmental laws, substantial contamination of groundwater with toxic, carcinogenic chemicals, and a concerted cover-up effort — though the last aspect does not enter much into today’s chapter. Back in 1983, David Dygert (a defendant in the RICO counts, but not in Counts III-V) and his wife purchased vacant farmland adjacent to the Meadow Farms Subdivision in Elkhart Indiana. See Redacted First Amended Complaint, DE 24, ¶ 105. They leased the property to Dygert’s business, Dygert Seating, Inc., which began manufacturing activities on two adjacent tracts of land — 23542 Cooper Drive and 53381 Marina Drive. Id. ¶ 107. (These, together, are referred to as “the site” throughout this order, except in Part V). The Cooper Drive facility was used for metalwork in connection with seat-manufacturing; the Marina Drive facility was used to manufacture foam seats that were attached to metal frames. Id. ¶¶ 109, 110.
In the mid-1990s, Dygert Seating began to experience financial difficulties and, in early 1997, filed for bankruptcy. Id. ¶¶ 113-119. Shortly after, Dygert Seating sold substantially all its assets and transferred the site to Flexsteel Industries,
From the mid-1980s until May 2007,
In January 2005, Flexsteel sold the Cooper Drive property to plaintiff Fred Lands. The purchase agreement stated that Flexsteel was not required to provide a disclosure under Indiana’s Responsible Property Transfer Law, and Flexsteel did not deliver such a disclosure or otherwise inform Lands of the past disposal practices and widespread dumping of hazardous chemicals.
In August 2007, plaintiff Darlene Knoll had her tap water tested after reading an article about groundwater contamination in the newspaper. Id. ¶¶ 127-130. The results revealed TCE contamination at levels as high as 1,360 ug/L — 272 times the federal maximum containment level for TCE in groundwater. Id. ¶¶ 131, 136. Subsequent tests detected levels as high as 330 ug/L in various plaintiffs’ drinking water. Id. ¶ 135. An environmental health supervisor for the Elkhart County Health Department advised the plaintiffs to immediately stop using their water — not to drink the water, cook with it, or even bathe with it, and to use only cold water when necessary to avoid vapors. Id. ¶ 138-140. According to the Federal Agency for Toxic Substances and Disease Registry (“ATSDR”), “[ojccupational exposure to TCE also has been associated with adult cancers such as kidney cancer, liver and biliary cancer and non-Hodgkin’s lymphoma.” Id. ¶ 143.
That same month, the U.S. Environmental Protection Agency and Indiana Department of Environmental Management (“IDEM”) responded by entering into a Cooperative Agreement to investigate, monitor, and evaluate the site. See DE 67-2. IDEM tested wells throughout the area and reported to the EPA that “elevated levels of volatile organic compounds were present in 13 of the water samples,” and that “water in 10 of the wells sampled had [TCE] levels above the maximum containment level. See DE 67-5 at 3-4. IDEM provided residents with bottled wa
The following April, IDEM conducted a site inspection to determine whether the site should be placed on the National Priorities List (“NPL”) as a “Superfund” site. See DE 67-7 at 10. In September 2008, the site inspection report concluded that “[t]he drinking water in residential wells continues to contain elevated levels of [volatile organic compounds] (some above [the federal maximum containment levels]) pri- or to filters, and additional private wells have the potential to become contaminated because ground water flow is toward more residential wells which are not currently impacted.” Id. at 61-62. Within two months, the EPA had connected 26 homes, including the plaintiffs’, to municipal water. See DE 67-8 at 3.
In 2009, IDEM notified EPA that it supported including the site on the NPL to “enable the U.S. EPA to determine cleanup alternatives to the impacted areas.” DE 67-8 at 2. The EPA proposed the site for listing on the NPL in April, see 74 Fed. Reg. 67 at 16162-69 (Apr. 9, 2009), and finalized the determination in September, see 74 Fed. Reg. 183 at 48412-21. The EPA then began conducting the investigatory phase of its “Superfund” clean-up process, known as Remedial Investigation/Feasibility Study (“RI/FS”). The latest investigatory activities shown in the record are the EPA’s intention, in May 2011 to initiate field work to determine the extent and source of the ground water contamination, see DE 67-8 at 3, and an August 2011 Public Health Assessment for the Site by the ATSDR, labeling the site as a “past public health hazard, see DE 67-10 at 6. On March 6, 2012, however, the ATSDR informed residents that “[t]here is still no concern about current exposures near Lane Street because no one is known to be drinking water from contaminated private wells.” DE 67-11 at 2.
In March 2011, the plaintiffs to this action (excluding Fred Lands) filed a complaint in Elkhart Circuit Court seeking damages and injunctive relief under theories of trespass, nuisance, negligence, negligent infliction of emotional distress, punitive damages, and for relief under Indiana’s Environmental Legal Action statute. DE 24 ¶540, 544. Two months later, they served the defendants with notice of intent to file a RCRA citizen suit in federal district court once the 90-day statutory notice period ended. Id. ¶ 545. On December 15, 2011, they filed this action to assert two citizen suit claims under RCRA against Flexsteel and Dygert Seating, over which federal courts have exclusive jurisdiction, as well as plaintiff Fred Land’s diversity action under Indiana’s RPTL against Flexsteel. See DE 1. On May 15, 2012, the plaintiffs filed a 130 page first amended complaint pleading two RICO claims against Flexsteel and Dygert Seating, as well as David Dygert, Greg Lucchese, Tris Gour, Gerald Alexander, PBD Corporation, Lux Steel, Inc., and Dylux Technology, Inc. See DE 18. Two days later, the first amended complaint was sealed to protect the identities of two minor plaintiffs, and a redacted version of the amended complaint was filed. See DE 24. The Court refers to the redacted first amended complaint throughout this order.
Through their two RCRA claims, the plaintiffs seek to obtain injunctive relief forcing Flexsteel (the only entity defendant that is still active) to develop a corrective plan, conduct investigation and evaluation, implement an abatement plan, and provide the plaintiffs with the funds necessary to oversee the work. They also seek reasonable attorney and expert witness fees. Plaintiff Fred Lands separately seeks to recover consequential damages,
II. STANDARD OF REVIEW
The parties dispute the proper standard of review. Some of the defendants’s arguments assert that the plaintiffs have failed to state a claim upon which relief may be granted, under Federal Rule of Civil Procedure 12(b)(6). They also claim, under Rule 12(b)(1), that the Court lacks subject matter jurisdiction over the RCRA claims due to CERCLA § 113(h)’s “blunt strip of jurisdiction” for any challenges to EPA removal actions until after they are complete. See 42 U.S.C. § 9613(h). Finally, the defendants ask the Court to consider their motion as a motion for summary judgment, if it is necessary to consider matters outside the complaint to dismiss the matter.
A. Rule 12(b)(1) Motion to Dismiss
Rule 12(b)(1) authorizes dismissal of claims over which the court lacks subject matter jurisdiction. In analyzing a motion to dismiss, the court must accept as true all well-pled factual allegations and must draw all reasonable inferences in favor of the plaintiff. Long v. Shorebank Dev. Corp.,
B. Rule 12(b)(6) Motion to Dismiss
Rule 12(b)(6) authorizes dismissal of a complaint when it fails to set forth a claim upon which relief can be granted. Generally speaking, when considering a Rule 12(b)(6) motion to dismiss, courts must inquire whether the complaint satisfies the “notice-pleading” standard. Indep. Tr. Corp. v. Stewart Info. Servs. Corp.,
In recent years, the Supreme Court has adopted a two-pronged approach when considering a Rule 12(b)(6) motion to dismiss. Ashcroft v. Iqbal,
“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.” McCauley v. City of Chi,
Rule 10(c) describes the type of materials that can be considered to be part of a pleading:
A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.
Fed.R.Civ.P. 10(c). This means that a court can consider for purposes of a Rule 12 motion, documents that are attached to a motion to dismiss if they are referred to in the complaint and are central to the plaintiffs claims. McCready v. eBay, Inc.,
C. Summary Judgment
Throughout their briefs, the defendants refer to numerous materials not attached to or referred to in the amended complaint, which are outside the “pleadings” identified in Rule 10(c). Under Rule 12(d), the Court must convert the motion to dismiss under Rule 12(b)(6) into a motion for summary judgment under Rule 56 if “matters outside the pleadings are presented to and not excluded by the Court.” When extraneous materials are presented, it is within the Court’s discretion to either exclude the materials and handle the case as a straightforward motion to dismiss, or to consider the materials and convert to summary judgment. See Levenstein v. Salafsky,
The defendants’ primary position is that the motion can be decided in their favor
The Court exercises its discretion to decide the defendants’ motion as a straightforward motion to dismiss, rather than converting it to a motion for summary judgment. As noted in the discussion that follows, the extraneous materials (some of which, such as the public agency documents, the plaintiffs concede is appropriate for judicial notice) are not necessary to resolve the RCRA claim under 42 U.S.C. § 6972(a)(1)(A) and not sufficient to resolve the RCRA claim under § 6972(a)(1)(B). With regard to plaintiff Fred Lane’s RPTL claim in Count V, the additional evidence would not, by itself, defeat the plaintiffs claim. Moreover, the Court agrees with the plaintiffs that fairness demands they be allowed a reasonable period of discovery on issues raised by their federal claims that were not wholly present in their state law claims.
III. COUNTS III & IV: FEDERAL RCRA CLAIMS
The Resource Conservation and Recovery Act enacted a “cradle-to-grave” set of
A. The Plaintiffs Do Not Plausibly Allege Any Continuing or Intermittent RCRA Violations
Count III of the plaintiffs’ amended complaint asserts a claim under 42 U.S.C. § 6972(a)(1)(A), which permits private citizens to bring suit “against any person ... who is alleged to be in violation of any permit, standard, regulations, condition, requirement, prohibition, or order which has become effective pursuant to [RCRA].” The plaintiffs allege numerous violations of RCRA and implementing regulations during the period in which the various defendants owned and operated the facility and property. While they admit that no defendant has owned or operated a facility on the property in several years, they assert that the past violations “are continuing violations because the improperly discharged waste remains in the ground and continues to insidiously infect the groundwater resources of the Plaintiffs and other residents and occupants of Elkhart County.” DE 24, ¶ 782. In addition, in their response to the motion to dismiss, the plaintiffs also present an alternative theory that the defendants are currently in violation because they remain under regulatory obligations to remediate contamination caused by previous violations, despite the cessation of operations and sale of the property. The defendants contend that this claim must be dismissed because all of the violations that the plaintiffs allege in their complaint occurred “wholly in the past.”
1. The Continuing Effects of Wholly Past Violations Do Not Constitute Ongoing or Intermittent Violations.
The plaintiffs’ argument that their allegations of a continued presence of illegally disposed of pollutant meet § 6972(a)(l)’s threshold requirement that the defendants be “in violation of’ RCRA is one that has troubled and divided district courts. The plaintiffs concede that they cannot bring a claim under § 6972(a)(1)(A) for violations that are “wholly past.” The Seventh Circuit has not addressed the requirements of this particular provision, but the Supreme Court interpreted very similar language in the Clean Water Act’s citizen suit provision to mean that citizen suits alleging “wholly past” violations could not be brought under provisions authorizing suits against persons alleged “to be in violation” of required standards. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,
In the absence of any binding precedent specifically on point, the place to begin is the language of § 6972(a)(1)(A) itself— that, not a “majority” or “minority” position tallied from various courts and various regulatory schemes, is what authorizes RCRA citizen suits and confers jurisdiction on the Court. That language authorizes suits only against persons “alleged to be in violation” of RCRA or its implementing regulations and standards. As the Supreme Court reasoned in Gwaltney, “[t]he most natural reading of ‘to be in violation,’ is a requirement that citizen-plaintiffs allege a state of continuous or intermittent violations — that is, a reasonable likelihood that a past polluter will continue to pollute in the future.” Gwaltney,
It appears that the only courts of appeals that have interpreted § 6972(a)(1)(A) have agreed that allegations of violations that had ceased by the time of the citizen suit do not confer jurisdiction on the court — though none of the them expressly discussed the contention that present, remediable pollution in the environment constitutes a continuing violation even if the culprit has ceased its unlawful disposal. See Ascon Properties, Inc. v. Mobil Oil Co.,
Looking at other cases in this circuit, the Court finds Judge Pallmeyer’s recent well reasoned decision in Forest Park Nat’l Bank & Trust v. Ditchfield,
Judge Pallmeyer also perceptively noted that her interpretation that plaintiffs could not use § 6972(a)(1)(A) to force a past violator to remediate the ongoing harm caused by its violation did not mean there is no recourse for past violations. She pointed out that RCRA’s other citizen suit provision, § 6972(a)(1)(B), authorizes suit against any past or present owner or operator that “ ‘contributed to’ the handling of hazardous waste that ‘may present an imminent and substantial endangerment to health or the environment.’ ” Forest Park,
The Court agrees with these observations and to them would add another. In addition to the “imminent and substantial endangerment” requirement, Congress was also careful to limit the availability of citizen suits under § 6972(a)(1)(B) when the EPA'or a State is already engaged in removal or remediation efforts. -See 42 U.S.C. ' § 6972(b)(2)(B). ' For § 6972(a)(1)(A) suits, on the other hand, Congress chose to bar suits only when the EPA or State is prosecuting a civil or criminal action in federal court. Allowing plaintiffs to use § 6972(a)(1)(A) to remediate current effects of wholly past violations, rather than merely to abate ongoing and prevent future violations, would erase this carefully drawn distinction between the two complementary citizen suit provisions.
The plaintiffs counter that what they call the “majority rule” among the courts that have considered the issue, is consistent with their position that where contamination from past violations remains in the environment and is remediable, a citizen plaintiff may proceed under § 6972(a)(1)(A). They do cite an impressive number of cases from districts around the country interpreting both § 6972(a)(1)(A) and the corresponding provision of the Clean Water Act. But aside from the inherent weakness of a majority rule that has apparently not been adopted by a single court of appeals, this purported majority rule is undermined by the distinct statutory or regulatory regime in which the various cases arise.
Many of the cases cited fall into two categories: (1) Dredge fill (or similar) cases under the Clean Water Act, see, e.g., Stillwater of Crown Point Homeowner’s Ass’n. v. Kovich,
First, the Clean Water Act, unlike RCRA, has no complimentary citizen suit provision allowing a remediation-only suit in cases of imminent and substantial endangerment. Many courts’ explicit motivation for extending citizen suits to cases where remediable pollution remains is that a lack of any citizen remedy for such situations in the Clean Water Act would encourage polluters to conceal their activities or “dump and run.” See, e.g., Greenfield Mills,
Second, underground storage tanks are subject to a separate RCRA regulatory regime which, critically, continues to deem a person the owner and operator of the tanks even after the property itself had been sold. See 42 U.S.C. 6991(4); 40 C.F.R. 280.12. Thus, in Dydio, Judge Castillo in the Northern District of Illinois held past owners of a property subject to suit under § 6972(a)(1)(A) for ongoing contamination from their underground storage tanks by distinguishing “wholly past violation” cases on the grounds that “[i]t is evident from the regulatory definition of an owner ... that RCRA contemplates reaching those who have owned USTs in the past and imposes present requirements and duties upon them.”
Nevertheless, several of the plaintiffs’ cases do hold, contrary to the Court’s conclusion above, that the present harmful effects of past violations constitute a continuing violation under § 6972(a)(1)(A). Some of these involved situations in which the past violator remained the actual or constructive owner of the polluted site, and thus might be considered “to be in violation” of continuing corrective action requirements, similar to the underground storage tank cases discussed above — although, in fairness, the cases themselves do not seem to rely on this theory. See, e.g., Fallowfield Dev. Corp. v. Strunk, CIV. A. No. 89-8644,
Second, some rely on the past tense of a separate sentence in § 6972(a), which provides that “any action under paragraph (a)(1) of this subsection shall be brought in the district court for the district in which the alleged violation occurred or the alleged endangerment may occur.” See Truck Components,
Finally, they distinguish Gwaltney and Clean Water Act cases because hazardous waste disposed into the ground has a persistent effect on the soil and groundwater and remains remediable, unlike the evanescent effects of air and water pollution. Truck Components,
For these reasons, the Court finds the plaintiffs’ arguments unavailing: only continuing violations, not the ongoing effects of past pollution, are the proper subject of § 6972(a)(1)(A).
2. The plaintiffs do not plausibly allege violations of corrective action requirements
The second conceivable ground for a citizen suit under 42 U.S.C. § 6972(a)(1)(A) may be handled more briefly. It is not mentioned in the first amended complaint, but the plaintiffs in their response briefly argue that although the defendants concededly no longer own the site or operate their facility, they may still be in violation of ongoing corrective action requirements while contaminants remain in the soil and groundwater. They thus liken this case to Dydio and other underground storage cases as well as Forest Park, which ultimately sustained the plaintiffs suit based on separate allegations of continuing violations of Illinois regulations implementing RCRA.
Second, even if the complaint were read to generally allege an ongoing violation of corrective action requirements, the plaintiffs have not explained which regulations apply or how. Again, a specific current corrective action requirement is conspicuous by its absence from the complaint— whereas every past allegation cites to a specific statutory or regulatory provision, the “corrective action” allegation cites to an entire part of the RCRA regulations containing numerous different requirements applicable in various situations to owners and operators. Given a chance to further explain their corrective action theory in their response brief, the plaintiffs provide no more specific citation or explanation of how these regulations apply to the defendants, who have not owned or operated the site in several years.
This is a critical difference between the case at hand and the underground storage tank cases and Forest Park. As noted above, underground storage tanks are subject to a separate regulatory scheme that deems certain persons owners and operators of tanks long after they have sold the property on which they are buried. Further, contrary to the plaintiffs’ suggestion, Forest Park did not find a general ongoing violation for a past operators’ failure to develop or implement a closure plan.
B. Count IV States a Claim under 42 U.S.C. § 6972(a)(1)(B)
What the plaintiffs seek is remediation of the harmful effects of past pollution, rather than the enjoining of continuous or intermittent violations. Thus, the proper avenue for a citizen suit in this case is the second RCRA citizen suit provision, 42 U.S.C. § 6972(a)(1)(B), which authorizes a suit
against any person ... including any past or present generator, past or present transporter, or past or present owner or operator or a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may presentan imminent and substantial endangerment to health or the environment.
There is no doubt that the plaintiffs allege that Dygert Seating, Flexsteel, PBD Corp., Lux Steel, and Dylux Technology are all past owners or operators who have contributed to the past handling and disposal of hazardous waste. See DE 24 ¶ 785. The defendants raise two other challenges to the § 6972(a)(1)(B) claim, however: First, they contend that the citizen suit cannot proceed because the intervention of the EPA and IDEM trigger separate statutory bars both in Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and within RCRA’s own citizen suit provisions. Second, they argue that even if the suit is not barred, the plaintiffs have failed to allege a plausible imminent and substantial danger because no one is currently known to be exposed to contaminated groundwater. The Court will address the arguments in the reverse order, however, since the existence of a potential federal cause of action based on “imminent and substantial endangerment” logically precedes the application of a statutory bar to such a cause of action.
1. The Plaintiffs Allege “Imminent and Substantial Endangerment.”
As noted, § 6972(a)(1)(B) permits a citizen suit “only upon a showing that the solid or hazardous waste at issue ‘may present an imminent and substantial endangerment to health’ ” Meghrig v. KFC Western, Inc.,
In support of their argument the defendants cite to several allegations in the amended complaint for their contention that the plaintiffs “admit” that the hazardous waste does not present an imminent and substantial danger to human health and the environment. First, the amended complaint states that “a public drinking water supply has now been provided to resident plaintiffs.” DE 24 ¶ 164. Second, they point to allegations that the ATSDR performed a public health assessment for the site and concluded that it was a “past public health hazard” and that “people who drank water from private wells containing the highest levels of TCE ... had an increased risk of adverse health effects.” Id. ¶¶ 145-151. The defendants’ also cite to similar details in the ATSDR report itself, which they claim completely undermines the plaintiffs’ arguments.
The defendants may be correct that when hazardous waste has no exposure pathway, it does not necessarily present an imminent danger. See Avondale Fed. Sav. Bank v. Amoco Oil Co.,
Moreover, the ATSDR report does not rule out imminent danger at all. First, the report specifically concludes that “exposure from wells still in use may pose a potential future public health hazard if contaminant levels increase” — these effects may be some time off, but without any specific timeframe the Court could not evaluate the imminence of the danger. See DE 67-10 at 7. Second, the report indicates that not all wells in the area were tested, see id. at 7, 20, so it is possible that some area residents may still be drawing contaminated groundwater from wells. Finally, the report is inconclusive regarding the possibility of health effects due a process it describes as “vapor intrusion,” by which volatile organic compounds from contaminated groundwater escape into the air and enter homes. Id. Thus, while the ATSDR report may not establish an imminent danger, and may even suggest that any danger was remote, it does not permit the Court to conclude, on a motion to dismiss, that the plaintiffs can not plausibly show that the defendants’ alleged disposal of hazardous waste does not “present an imminent and substantial endangerment to health or the environment.”
2. Dismissal Based on Statutory Bars Is Not Appropriate at this Stage.
Several statutory provisions bar a citizen suit under § 6972(a)(1)(B) where the EPA or state agency is already engaging in removal or remedial action. By way of background, removal actions are short-term action to abate the immediate risks of hazardous wastes; remedial actions, on the other hand, are “those actions consistent with permanent remedy taken instead of or in addition to removal actions” 42 U.S.C.A. § 9601(23)-(24). The statutory bars can be helpfully addressed in two categories: the general “timing of review” provision of CERCLA § 104 and the specific limitations contained within RCRA’s citizen suit provision itself. Ultimately, it is premature to decide either issue on the limited record available to the Court on a motion to dismiss under Rule 12(b)(6).
i. CERCLA Section 113(h)
CERCLA provides a framework applicable to multiple environmental statutes to guide the cleanup of hazardous waste sites. To help ensure that litigation would not impede ongoing cleanup efforts, Congress enacted § 113(h), providing that, subject to certain exceptions, “[n]o Federal court shall have jurisdiction under Federal law ... to review any challenges to removal or remedial action selected under [CERCLA § 104].” 42 U.S.C. § 9613(h). The main exception to this bar is that a plaintiff may generally challenge a removal or remedial action under CERCLA’s citizen suit provision (42 U.S.C. § 9659) once
Prehminarily, the Court notes that the defendants discussion of CERCLA § 113(h)’s “jurisdiction strip” does not tell the whole story. By seeking dismissal under Rule 12(b)(1), they clearly suggest that § 113(h) deprives the Court of subject matter jurisdiction over this claim. That is certainly a plausible interpretation, given the “jurisdictional” language of the statute, and some courts may agree. See, e.g., Cannon v. Gates,
Turning to the substance of CERCLA § 113(h), “[t]he obvious meaning of this statute is that when a remedy has been selected, no challenge to the cleanup may occur prior to the completion of the remedy.” Schalk v. Reilly,
With regard to the first question, there is no dispute either that the EPA has selected removal actions or that it has not (yet) selected any remedial action. Removal actions under CERCLA § 104 include, inter alia, “such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances” and the “provision of al
There is also some indication that the EPA was planning additional investigation and monitoring as of May 2011, six months before this suit was filed and a year before the amended complaint. See DE 67-7. The record does not reveal the exact nature and extent of these activities, however, and not all ongoing investigations constitute removal actions. See Frey II,
The second question is a bit more difficult. CERCLA § 113(h) plainly does not bar all citizen suits once removal or remedial action is underway, only those suits that “challenge” the remedy that has been (or is to be) selected. What does it mean to “challenge” a removal or remedial action? The Seventh Circuit has said little on this particular question. But in its cases discussing CERCLA § 113(h) more generally, it has explained that the purpose of this particular statutory prohibition is “to prevent unnecessary delay in implementing hazardous waste cleanups.” Schalk,
Where there is an ongoing remedial plan, it is relatively easy to determine whether a particular suit will interfere with and delay clean-up efforts — most will, particularly where they seek to require the EPA itself to reconsider or enjoin it from taking certain selected actions. For example, the Seventh Circuit has held that a potentially responsible party could not challenge the cost-effectiveness of “a measure that is ordered as part of a remedial plan, and that is reasonably related to the plan’s objectives.” North Shore Gas,
It is less clear that a challenge to a removal action is always as likely to interfere with clean up efforts. Some sorts of challenges may. If the EPA has selected and not yet undertaken (or is in the process of selecting) a remedial action, a lawsuit seeking to require additional assessment would delay the selection and implementation of remedial action. See Schalk,
But if a removal action were complete — or stalled — and no additional removal or remedial actions have been selected or are under active consideration, litigation may serve to accelerate, rather than delay, clean up efforts. Such suits are not necessarily barred. The Seventh Circuit has not confronted this exact question, but it came close in Frey II,
At least one other district court in this circuit has agreed. The Court notes that Judge Pallmeyer’s well-reasoned decision in Forest Park, discussed extensively above with regard to Count III, also considered whether CERCLA § 113 bars a suit under 42 U.S.C. § 6972(a)(1)(B) where EPA response actions have apparently stalled. See
There is no evidence that this litigation is delaying or will delay the completion of an ongoing cleanup action. To the contrary, the evidence suggests that [the plaintiff’s] suit seeks to jumpstart a nonexistent cleanup action. In that sense, this RCRA citizen-suit provision serves the very gap-filling purpose for which the citizen suit provision was designed.
Id. Thus, she concluded that § 113 did not bar the plaintiffs suit.
The defendants argue that this suit, and the requested relief, would interfere with the EPA’s ongoing and future removal and remedial efforts, but the limited record does not permit the Court to make these sort of determinations regarding the nature of ongoing actions and the concreteness of remedial plans going forward. For example, the complaint asks the Court to require certain defendants to develop a corrective action plan and conduct investigation and evaluation, but it is not immediately clear how this preliminary step would interfere with any current EPA involvement in the site. Obviously, if the EPA does have firm plans to continue the process of selecting and implementing a remedial plan, then an injunction requiring the
ii. RCRA Limitations: 42 U.S.C. § 6972(b)(2)(B) & (C)
RCRA has its own complimentary limitations on “imminent and substantial endangerment” citizen suits under § 6972(a)(1)(B) when the EPA or a State agency has begun removal or remedial actions. With regard to the EPA, § 6972(b)(2)(B) provides that “no action may be commenced under subsection (a)(1)(B) of this section” if the EPA is either “actually engaging in a removal action under section 104 of [CERCLA]” or “has incurred costs to initiate a Remedial Investigation and Feasibility Study under section 104 of [CERCLA] and is diligently proceeding with a remedial action under that Act.” Section 6972(b)(2)(C) provides identical limitations when a State is involved in removal or remedial efforts.
The defendants argue that based on the public agency documents, this case must be dismissed for three reasons. First, the EPA has taken removal action (described above), triggering § 6972(b)(2)(B)(ii). Second, IDEM has also engaged in removal action, triggering § 6972(b)(2)(C)(ii). Third, EPA is conducting an remedial investigation feasibility study, triggering § 6972(b)(2)(B)(iii). The plaintiffs respond that each of these statutory bars involves factual questions that cannot be resolved on the record as it is. The Court agrees with the plaintiffs.
Looking to the statutory texts, it is clear that all three provisions require an inquiry into the circumstances of the EPA or IDEM action at the time the suit was commenced. See Adkins,
Likewise, § 6972(b)(2)(B)(iii) does not apply unless the EPA “has initiated a RI/FS and is diligently proceeding with some remedial action beyond the [RI/FS]. ” Acme Printing Ink Co. v. Menard, Inc.,
IV. COUNTV: INDIANA RPTL CLAIM
The final issue the Court will address in this order is Fred Land’s claim (Count V) under the Indiana Responsible Property Transfer Law, Ind.Code § 13-25-3-1 et seq. The RPTL requires the transferor of certain “property,” as that term is specially defined in Ind.Code § 13-11-2-174, to provide a disclosure form to the transferee identifying past uses of the property and potential environmental defects. See generally PI. Reply Ex. 9, DE 103-5.
“Property” is only subject to the disclosure requirements, however, if it falls into one or more of three categories: (1) it is the site of any underground storage tank; (2) it is listed on the EPA’s Comprehensive Environmental Response, Compensation and Liability Information System (CERCLIS) list; or (3) it “contains one or more facilities that are subject to reporting under Section 312 of the federal Emergency Planning and Community Right-to-Know Act of 1986 [EPCRA].” Ind.Code. § 13-11-2-174. EPCRA, in turn, requires businesses that handle hazardous chemicals to submit annual inventory reports of hazardous substances if certain threshold amounts are present at any one time during the preceding calendar year — generally, 500 pounds or more of an “extremely hazardous substance” or 10,000 pounds or more of any hazardous chemical. See 40 C.F.R § 370.10.
Land alleges that the Cooper Drive Property was subject to the RPTL’s disclosure requirement, but that Flexsteel never provided the required disclosure document. The property has no underground storage tanks. The amended complaint alleges, however, that “even though manufacturing activities had ceased at the Cooper Drive Property as of the date of transfer, the [property] nevertheless had been and remained subject to reporting under Section 312 of EPCRA.” DE 24, ¶ 792. It also alleges that although the site was not listed on CERCLIS at the time of the transfer, it would have had the appropriate agencies been aware of the defendants’ disposal practices. Id. ¶¶ 790,
This requires the Court to construe the definition of “property” that triggers RPTL’s disclosure requirements. Flex-steel points out that RPTL’s definition of “property” uses the present tense: the real estate is only “property” if it “contains one or more facilities that are subject to reporting under [EPCRA § 312].” Therefore, it argues, the allegations of EPCRA reports 12 years before the transfer are not sufficient to render the Cooper Drive site “property” under RPTL and trigger disclosure requirements.
The Court disagrees. To begin, it does not appear that any Indiana court, much less the Indiana Supreme Court, has ever interpreted the statute in question. But as a matter of first impression, the Court agrees that the definition of “property” for RPTL purposes in Ind.Code § 13-11-2-174 should not be construed to mean that a facility must be required to file an EC-PRA inventory report for the current calendar year before disclosure is mandated. First, as the plaintiff notes, the purpose of RPTL is to provide a broad swath of environmental information, including “regulatory information during the transferor’s ownership, site information under other ownership or operation, [and] any environmental defects.” Ind.Code § 13-25-3-7.5 An “environmental defect” is broadly defined as any “environmentally related commission, omission, activity, or condition” that would violate environmental laws, “require remedial activity,” present a “substantial endangerment” to public health, public welfare, or the environment, “have a material, adverse effect on the market value of the property,” or would interfere with another’s ability to obtain environmental permits or licenses. Id. § 13 — 11— 2-70.
Because the purpose of the statute appears to be to disclose as much information related to environmental conditions on the property as possible, it makes sense to read the statutory definition of “property” broadly as well. Looking at the three categories that meet the definition of “property,” they appear intended to cover those properties where there is an elevated risk of environmental defects: underground storage tanks pose a risk, even if the transferor did not put them there; CERCLIS list sites have already been identified by the EPA as actually or potentially contaminated; and the “ECPRA reporting” category clearly (to the Court, at least) is intended to cover those facilities that have been handling large amounts of hazardous chemicals, raising the likelihood of an accidental (or intentional) release and environmental defect. Given the broad purposes of RPTL and the broad disclosures required by the
IDEM appears to share this broad view of RPTL’s purposes. Its “Environmental Disclosure for Transfer of Real Property” form (the disclosure document at issue), asks broad questions apparently designed to solicit information on past regulatory compliance as well as specific information that would allow a transferee to investigate potential unknown environmental defects. For example, the form broadly asks whether the transferor has “ever conducted operations on the property which involved the generation, manufacture, processing, transportation, treatment, storage, or handling of a ‘hazardous substance,” or whether certain common hazardous waste storage and disposal units are “at the property that are used or were used by the Transferor.” PI. Resp. Ex. L, DE 90-12 at 3. It inquires whether the transferor has been required to file an EPCRA hazardous chemical inventory or a toxic chemical release form, and whether the transferor or any facility on the property has been subject to certain state or federal government actions. Id. at 5. Finally, it asks for limited information on previous owners and operators. Id. at 8.
Under Flexsteel’s cramped reading of the statutory definition of “property,” the RPTL disclosure requirements would be so limited that they would defeat the statutory purpose. A transferor that had stored (and perhaps released) substantial amounts of hazardous waste over the course of decades could avoid disclosure requirements by ceasing operations and removing hazardous chemicals before the beginning of the calendar year in which it intends to transfer the property, thus eliminating any reporting requirement despite known or suspected environmental defects. Given the broad purpose of RPTL — not to mention the substantial consequences of noncompliance — it simply makes no sense that the legislature intended to limit its coverage so drastically. So while it is true, as the defendants note, that the use of present tense language in a statute may indicate an intent to focus on current and ongoing activity, see White v. Indiana Democratic Party ex rel. Parker,
Finally, it is worth noting that looking only at the complaint itself, dismissal does not appear appropriate even under Flex-steel’s interpretation of RPTL’s definition of “property.” Although the plaintiff does not appear to contest Flexsteel’s claim that the Copper Street site has not been in active operation for over five years, the Court notes that the complaint does not, as defendants claim, admit that the property has not been subject to EPCRA reporting requirements since 1993. The lack of any allegation that EPCRA Tier II reports were submitted any time after 1993, might imply that none were (though that is not the appropriate standard on a motion to dismiss). But RPTL’s definition of “property” does not say that a transferor must have been complying with EPCRA reporting requirements at the time of the transfer, merely that it be subject to those reporting requirements. The complaint includes allegations that the defendants had previously submitted EPCRA reports
Finally, the Court notes that Flex-steel argues that the six-year statute of limitations applicable to property claims has already run. See Ind.Code. 34-11-2-7(3). Assuming that the defendants are correct that a six-year period applies to this action, rather than the general ten-year statute of limitations, it is still impossible to decide the statute of limitations issue based on the pleadings alone because Land claims that he could not possibly have discovered the violation of the RPTL until after the pollution was discovered in 2007. See Filip v. Block,
For these reasons, the Court will deny Flexsteel’s motion to dismiss Count V of the first amended complaint.
V. CONCLUSION
The plaintiffs may not proceed under 42 U.S.C. § 6972(a)(1)(A) because they have not plausibly alleged that the former owners and operators of allegedly contaminated sites are engaged in ongoing violations of RCRA laws, regulations, or standards. Their claim under 42 U.S.C. § 6972(a)(1)(B), however, requires factual development to determine whether there is an imminent and substantial danger and whether the EPA or IDEM are actually engaging in removal activities, and thus Count IV survives. Finally, Count V states a failure to disclose claim under the RPTL. Accordingly, for the reasons discussed at length above, the Court
GRANTS Defendants David Dygert’s and Greg Lucchese’s Motions to Join in Flexsteel Industries Ine.’s Motion to Dismiss [DE 72, 73];
GRANTS Defendant Flexsteel’s Motion for Leave to File Two Separate Motions to Dismiss [DE 65];
GRANTS Defendants’ Joint Motion to Dismiss [DE 66, 69, 71] with respect to Count III, and DENIES the motion with respect Counts IV and V;
DISMISSES as moot Defendants’ Motion for Hearing [DE 68] re the Joint Motion to Dismiss; and
DISMISSES as moot Plaintiffs’ Motion to Delay Summary Judgment [DE 91].
SO ORDERED.
Notes
. The motions to dismiss filed by Greg Lucchese [72], and David Dygert [DE 73], are essentially motions for joinder in the two motions filed by Flexsteel. Both are defendants in the RICO counts, but not in the RCRA or RPTL counts. Because neither defendant raises any additional grounds or arguments to Flexsteel's motion to dismiss Counts I and II, and for simplicity’s sake, the Court will treat DE 72, 73 as motions for joinder in DE 74.
. Operations obviously ceased prior to January 2005 at the Cooper Driver property.
. In cases like this, the Court respectfully suggests that, while perhaps not expressly required under the rules, a party moving for summary judgment "in the alternative” to a motion to dismiss (or even citing extraneous material that raises a significant possibility of conversion) should comply with Local Rule 56-1.
. Even if the Court were to consider the defendants’ motion as a proper motion for summary judgment, it would grant the plaintiffs’ Rule 56(d) motion. Attorney Rodney L. Michael’s declaration, DE 92-1, meets the threshold “good faith showing” that it cannot present facts essential to justify its opposition under Rule 56(d). See Kalis v. Colgate-Palmolive Co.,
. As discussed below, there is no merit to the defendants' contention that the statutory bars deprive the Court of subject matter jurisdiction. See III.B.2.Ü
. It is not clear that the document fits into any of the categories of documents appropriately considered on a Rule 12(b)(6) motion to dismiss. Judicial notice is not proper — the fact that an environmental study was undertaken by a government agency hardly establishes that the accuracy of its conclusions "cannot reasonably be questioned.” See General Elec. Capital Corp. v. Lease Resolution Corp.,
. The complete text of the relevant portions of CERCLA § 113(h) follows:
No Federal court shall have jurisdiction under Federal law ... to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order under section 9606(a) of this title, in any action except on of the following: ...
(4) An action under section 9659 of this title (relating to citizen suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.
42 U.S.C. § 6913(h).
. Because the Court holds that it cannot determine at this stage whether the plaintiffs suit challenges a selected removal or remedial action, it is not necessary to delve further into the complicated question of whether a potentially challenged action is “complete.” See Frey II,
. The provisions also prohibit suits where the EPA or State "has commenced and is diligently prosecuting an action under section [42 U.S.C. § 6973],” but there is no suggestion that this provision is applicable here.
. This exhibit is merely a copy of a publicly available document entitled: IDEM Memorandum re Environmental Disclosure Required in Transfer of Real Property under Indiana Code (IC) 13-25-3, available at IDEM’s website: http://www.in.gov/idem/ 4691.htm.
. According to the opening brief in support of the motion to dismiss: "Flexsteel did not have any operations at the Cooper Drive property for at least five years before it sold the property to plaintiff Lands and there were no hazardous chemicals present on-site that would trigger EPCRA Tier II reporting obligations at the time of the sale.” DE 67 at 6. This brief provides no citation for this assertion, however, and it does not appear in the complaint. The only basis for its contention that it was not subject to EPCRA reporting requirements in 2005 seems to be an Environmental Site Assessment conducted in 2002; because the Court has declined to convert the motion to dismiss into a motion for summary judgment, however, these documents must be excluded. See Fed.R.Civ.P. 12(d).