The opinion of the court was delivered by: Honorable Paul Maloney
" Lozar 4 "*fn1 Dismissing the Remainder of Count 2 (Remediation/Response Costs) for Failure to State a Claim:
Imposing Consequence for Plaintiffs' Failure to File Third Amended Complaint Providing "Sufficient Specific Allegations Regarding Each Plaintiff's Actual Past Incurrence of Response Costs and Regarding their Compliance with the National Contingency Plan"
Randall and Heather Lozar and thirty-three others (collectively "Lozar") reside or own property near a fruit-processing plant in Fennville, Michigan. See Second Amended Complaint ("2d Am Comp") ¶¶ 1-29 and 40. Defendant Bird's Eye Foods, Inc. ("BEF") has not denied that it is the owner/operator of the facility as defined by CERCLA,42 U.S.C. § 9601(20)(A). BEF's operations at the facility creates wastewater which contains organic matter from the fruit, such as dissolved sugar and suspended solids, and it disposes of this wastewater by spraying it onto its fields ("spray irrigation"), which are east of the facility and south of M-89. See 2d Am Comp ¶¶ 40 and 50. The Lozars allege that since the BEF facility opened, its spray irrigation has caused elevated levels of "contaminants" in the soil and "groundwater" on and around the facility premises. Id. ¶¶ 40 and 51.
The Lozars bring this environmental-protection action asserting a state common-law claim for negligence (count 1), a claim for recovery of response/remediation costs under federal and state environmental statutes (count 2), and another state common-law claim (count 3). For the remainder of the factual background and procedural history, the court incorporates its discussion in Lozar v. Birds Eye, Inc., No. 1:2009-cv-10 Doc. 42, 2009 WL 5196154 (W.D. Mich. Dec. 22, 2009) (Maloney, C.J.) ("Lozar 3"). This court previously dismissed parts of count one and count two. Today it dismisses the rest of count 2, leaving no claim directly arising under federal law.
In Lozar 3, this court granted in part and denied in part Birdseye's Fed. R. Civ. P. 12(b)(6) motion to dismiss count 2, the claim for remediation and response costs. The court noted that to prevail on a CERCLA cost-recovery claim, a private party must establish that:
(1) the site on which the hazardous substances are contained is a "facility" as defined by 42 U.S.C. § 9601(9);
(2) a "release" or "threatened release" of a hazardous substance from the facility has occurred as defined by 42 U.S.C. § 9607(a)(4) (Liability section);
(3) such release or threatened release has caused the plaintiff to incur response costs which were "necessary" and "consistent with the national contingency plan" per 42 U.S.C. § 9607(a)(4) and (a)(4)(B); and
(4) the defendant is within one of the four classes of persons/entities subject to the liability provisions of CERCLA section 107(a), 42 U.S.C. § 9607(a).
Lozar 3, 2009 WL 5196154 at *13-14 (citations omitted). The Lozars' Remediation/Response Cost claim allegations are in paragraphs 446-459 of the second amended complaint. BEF argued that this claim should be dismissed for failure to state a claim on which relief can be granted for two reasons.
First, BEF contended that because the Lozars fail to state a claim for violation of CERCLA, RCRA and SWDA, they cannot seek remediation and response costs allegedly incurred as a result of such violations. As noted above, the court agreed with BEF that the plaintiffs' count one fails to state a claim for negligence based on a violation of the SDWA. Therefore, because there were no allegations that BEF violated some particular provision of the SDWA and sufficient specific plausible allegations as to how BEF allegedly violated that provision, the plaintiffs' count two claim for recovery of response/remediation costs failed as to any costs allegedly incurred as a result of an alleged violation of the SDWA. See Lozar 3, 2009 WL 5196154 at *14.
Second, BEF contended that even if count one (negligence / negligence per se) stated a claim for violation of CERCLA and RCRA, the second amended complaint fails to sufficiently allege that many of the dozens of plaintiffs actually have incurred remediation/response costs as a result of BEF's alleged violation of those two statutes. On this score, the defendants argued as follows,
There are now 40 Plaintiffs in this lawsuit. As Plaintiffs acknowledge through the plain allegations in the Second Amended Complaint, 26 of them have no claim for recovery of response costs under any environmental statute because they have not alleged that they have, in fact, incurred any response costs. * * * While ¶ 456 of the Second Amended Complaint purports to contain "a non-exclusive" [sic, non-exhaustive] list of those Plaintiffs who allegedly did incur response costs, the ...