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Environmental World Watch, Inc. v. Walt Disney Co.

October 19, 2009


The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

Order Denying Defendants' Motion to Dismiss [Motion filed on September 3, 2009]

Presently before the Court is Defendants Walt Disney Company, Disney Worldwide Services, Inc., and Walt Disney Enterprises' (together "Disney") motion to dismiss for lack of standing and for failure to state a claim. After reviewing the parties' moving papers and hearing oral argument, the Court denies the motion.

I. Background

Plaintiffs in this action are Environmental World Watch, Inc. ("EWW"), a Delaware corporation based in Los Angeles County, and several individuals that live and recreate in the vicinity of Disney's commercial property in Burbank, CA. Disney is a worldwide entertainment company with headquarters located at 500 South Buena Vista Street in Burbank, California (the "Studio Lot"). (Second Amended Complaint ("SAC") ¶ 14.)

According to the SAC, Disney has operated a 50-acre film production, broadcast, and office facility at the 500 South Buena Vista Street Property since approximately 1939. (SAC, Ex. A at 25.) Plaintiffs contend that, for decades, Disney has pumped water from the ground for use in its air-cooling system, added various chemical compounds to the cooling waters, and then discharged the spent water through "well water disposal lines" and pipes. (Id.) As a result, they contend, Disney has discharged hexavalent chromium ("Cr VI") into the land, water, and air surrounding the Studio Lot. (Id.)

The SAC alleges that Disney continued to discharge Cr VI even after EPA banned use of the compound in air-cooling systems in 1990, and that discharges occurred regularly over the past five years (i.e., within the applicable statute of limitations period).*fn1

(Id. at 26.)

According to Plaintiffs, the contaminated cooling water traveled through three pipes and emptied into the street at the intersection of Keystone and Parkside (in Burbank), eventually contaminating the aquifer below the City of Los Angeles's Polliwog Park. (Id.) At some point, Plaintiffs contend, those three pipes were connected to a City of Burbank storm drain that runs under the intersection of Keystone and Parkside, immediately east of the 500 South Buena Vista Street property line, and empties into the Los Angeles River. (Id. at 29, 35.)

The SAC alleges that testing conducted on May 1, 2009 and every day thereafter at "the discharge pipe terminus into the Los Angeles River" revealed that "quantities of Cr VI found in samples of H20 and H20 sludge as residue exceed the Maximum Contaminant Level (MCL) for Cr VI in drinking water and the No Significant Risk Level (NSRL) under Ca Health and Safety Code section 25249.5, et seq."*fn2 (Id. at 35 n. 1.)

After sending notices of intent to file suit on May 22, 2009, June 1, 2009, and June 18, 2009, Plaintiffs sued Disney for violations of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. and the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., pursuant to both statutes' citizen suit provisions. They filed a first amended complaint on June 23, 2009, (Dkt. No. 4), and pursuant to the parties' stipulation, (Dkt. No 12), a second amended complaint on August 14, 2009, (Dkt. No 14.)

The SAC alleges that Disney is a past or present generator, transporter, owner or operator "of a treatment, storage, or disposal facility, which has contributed or is contributing to the past or present storage, treatment, transportation, and/or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." (SAC ¶ 51); see 42 U.S.C. § 6972(a)(1)(B). They specifically allege the following: (1) violations of the procedural and substantive requirements of RCRA section 3004, 42 U.S.C. § 6924, (SAC ¶ 56); (2) un-permitted handling, treatment, storage, transportation and/or disposal of hazardous waste pursuant to 42 U.S.C. § 6925 (SAC ¶ 64); and (3) violating the prohibition on open dumping pursuant to 42 U.S.C. § 6945 (SAC ¶ 67.)

Plaintiffs also allege that Disney is discharging pollutants from a point source without a National Pollutant Discharge Elimination System ("NPDES") permit in violation of CWA § 301, 33 U.S.C. § 1311, and that they are discharging storm water contaminated with industrial pollutants in violation of CWA § 402(p), 33 U.S.C. § 1342(p). (SAC ¶¶ 75-76.)

Disney moves to dismiss the SAC for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and for lack of Article III standing. They contend that "the RCRA causes of action (one through five of the SAC) should be dismissed because Plaintiffs fail to identify a 'hazardous waste' . . . and fail to describe where and when the hazardous waste allegedly was disposed in the last five years." (Mot. at 3.)

With respect to the CWA causes of action (six and seven in the SAC), Disney argues that Plaintiffs "fail to adequately allege discharge of a particular pollutant from a particular point source" and as to count seven, that Disney does not need a NPDES permit in order to discharge storm water because they are covered by the City of Burbank's municipal storm water permit. (Id.)

II. Legal Standard

Pursuant to Federal Rule of Procedure Rule 12(b)(6), a complaint is subject to dismissal when the plaintiff's allegations fail to state a claim upon which relief can be granted. When considering a Rule 12(b)(6) motion, courts accept the plaintiff's allegations of material fact as true, and construe the complaint in the light most favorable to the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996).

In Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), the Supreme Court explained that a court considering a 12(b)(6) motion should first "identify[] pleadings that, because they are no more than ...

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