The opinion of the court was delivered by: Todd J. Campbell United States District Judge
Pending before the Court are the Defendants ALP Lighting And Ceiling Products, Inc., Nemak USA, Inc., And Interstate Packaging Company ("Non-Governmental Defendants) Joint Motion To Dismiss (Docket No. 232) and Plaintiffs' Motion For Oral Argument On Defendants' Motion (Docket No. 245).
For the reasons set forth herein, the Motion To Dismiss is DENIED. As the Court finds oral argument unnecessary, the Plaintiffs' Motion For Oral Argument is DENIED.
II. Factual and Procedural Background
Plaintiffs Natural Resources Defense Council, Inc. ("NRDC"), Beatrice Holt, and Sheila Holt-Orsted brought this action against Defendants County of Dickson, Tennessee, City of Dickson, Tennessee, ALP Lighting and Ceiling Products, Inc., Nemak USA, Inc., and Interstate Packaging Co., pursuant to the citizens suit provisions of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B) ("RCRA") to abate an alleged "imminent and substantial endangerment to human health and the environment posed by trichloroethylene ('TCE') and perchloroethylene ('PCE') disposed at the Dickson Landfill, in Dickson, Tennessee." (Amended Complaint, at ¶ 1 (Docket No. 198)). The Amended Complaint specifically alleges:
1. . . . TCE and PCE were once commonly used as industrial solvents and degreasers. For decades, industrial and other hazardous and solid wastes including TCE and PCE were dumped at the Landfill. Those wastes did not stay put.
2. The Landfill site is now extensively contaminated with TCE, PCE and these chemicals' degradation products. TCE and PCE pollution have seeped deep beneath the Landfill to underlying groundwater. TCE contamination has rendered water from wells and springs two to three miles from the Landfill unfit for human consumption. Polluted spring water is flowing directly into the West Piney River, a fishing stream and a major source of drinking water for the Water Authority of Dickson County. Several square miles of Dickson County have been recognized as an "imminent threat" area by the County. TCE contamination above drinking water limits, and orders of magnitude above United States Environmental Protection Agency ('EPA') drinking water screening levels, has been found in at least two wells even outside that threat area. In some areas, this contamination appears to be worsening.
3. Although sweet to the smell and colorless to sight, TCE and PCE are toxic. Exposure to TCE has been linked to nervous system impairment; liver and lung damage; abnormal heartbeat; low birth weight, congenital heart defects, orofacial defects, and other developmental harms; and comas. Exposure to PCE can cause nervous system impairment, liver damage, kidney damage, comas, and reproductive system harm. TCE and PCE are also likely human carcinogens. At sufficient exposure levels, TCE and PCE cause death.
4. Defendants in this case, the Landfill's owners and operators and the owners of local industrial facilities that disposed of TCE and/or PCE at the Landfill, have not taken steps necessary to protect health and the environment from the contamination emanating from the site. More than two decades after TCE was first detected in nearby drinking water sources, Defendants have not fully characterized the present and likely future extent of the TCE and PCE contamination. Defendants have not contained the contamination's continued migration. Defendants have, instead, effectively surrendered the soil and ground and surface water of Dickson County to the slow spread of these invisible and toxic chemicals.
5. Section 7002(a)(1)(B) of the Resource Conservation and Recovery Act ('RCRA'), 42 U.S.C. § 6972(a)(1)(B), authorizes private persons to sue those responsible for such contamination to compel a comprehensive investigation and cleanup. Defendants City of Dickson, Tennessee and County of Dickson, Tennessee own and operate the Landfill, and are responsible for its management. Defendants ALP Lighting and Ceiling Products, Inc. ('A.L.P.'), Nemak USA, Inc. ('Nemak') and Interstate Packaging Company ('Interstate') own industrial facilities in the Dickson area that generated TCE and/or PCE wastes, some of which were disposed at the Landfill. Each Defendant has contributed to the disposal and management of TCE- and/or PCE- contaminated waste that may present an imminent and substantial endangerment to human health and the environment of Dickson County.
6. Plaintiff Beatrice Holt owns and resides on a property adjacent to the Landfill (the 'Holt property') that is contaminated with TCE and a chemical degradate of TCE and PCE. Plaintiff Sheila Holt-Orsted, Beatrice Holt's daughter, resided at the Holt property for many years and continues to spend substantial time there. Plaintiff Natural Resources Defense Council, Inc. is a nonprofit environmental organization with members throughout the United States, including in Dickson County. Through this suit, Plaintiffs seeks to compel Defendants to investigate and characterize fully the spread of TCE and PCE contamination from the Landfill, to restore the waters and lands of Dickson County that have been polluted by this contamination, and to protect the health of Dickson County's residents and environment. (Docket No. 198, at ¶¶ 1-6).
A. The Standards for Considering a Motion to Dismiss
In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must take "all well-pleaded material allegations of the pleadings" as true. Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). The factual allegations in the complaint "need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead 'sufficient factual matter' to render the legal claim plausible, i.e., more than merely possible." Id. (quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50 (2009)). "'A legal conclusion couched as a factual allegation,'" however, "need not be accepted as true on a motion to dismiss, nor are recitations of the elements of a cause of action sufficient." Id. (quoting Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Defendants seek dismissal of Plaintiffs' claims based on the following grounds: a RCRA provisions bars this action; Plaintiff NRDC lacks standing to bring this case; Plaintiffs' claims are moot; and the doctrines of abstention and primary jurisdiction warrant dismissal of this case.
B. RCRA Citizens Suit Bar
In their Amended Complaint, Plaintiffs cite Section 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B), as a basis for jurisdiction for this "citizens suit." (Amended Complaint, at ¶¶ 5, 125 (Docket No. 198)). That section provides that a citizen may bring a civil action regarding any solid or hazardous waste "which may present an imminent and substantial endangerment to health or the environment." The Defendants argue that this type of citizens suit is barred by another section of RCRA, 42 U.S.C. § 6972(b)(2)(B)(iv), because the Commissioner of the State of Tennessee Department of Environment and Conservation ("TDEC") issued an order regarding the Landfill in 2001.
The Order, issued on October 15, 2001, requires Dickson County to undertake certain actions with regard to the Landfill. (TDEC Commissioner's Order, dated October 15, 2001 (Docket No. 235-4)). The Commissioner states that his jurisdiction to issue the Order is based on the Tennessee Solid Waste Disposal Act, Tenn. Code Ann. §§ 68-211-101, et seq., and the Tennessee ...