Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding D.C. No. 1:07-cv-00703-LJO- CSK
The opinion of the court was delivered by: Gould, Circuit Judge:
D.C. No. 1:07-cv-00703-LJO- CSK
Argued and Submitted May 13, 2011-San Francisco, California
Before: Diarmuid F. O'Scannlain, Ronald M. Gould, Circuit Judges, and Amy J. St. Eve, District Judge.*fn1
Plaintiffs Hinds Investments, L.P. and Patricia MacLaughlin (collectively, "Hinds") appeal the district court's dismissal of their claims against manufacturers of dry cleaning equipment brought, inter alia, under the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§ 6901 et seq.*fn2 RCRA permits citizen suits against "any person . . . 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 present an imminent and substantial endangerment to health or the environment." Id. § 6972(a)(1)(B). The district court held that Hinds's allegations that the manufacturers contributed to waste disposal, by the design of machines that generated waste and by the instructions they gave on use of these machines, were insufficient as a matter of law to support a civil action under RCRA because all of the defendant manufacturers' alleged contributions were passive. We affirm. We hold that, for RCRA liability, "contribution" requires more active involvement than was alleged as to the defendant manufacturers.
Hinds owns two California shopping centers, located in Clovis and Fresno, that housed dry cleaning stores and whose groundwater is now contaminated with perchloroethylene ("PCE"), a hazardous substance often used in dry cleaning. Seeking declaratory relief and monetary damages to offset the cost of environmental remediation and clean-up, Hinds sued, among others, the manufacturers of equipment used at the dry cleaning stores. Defendant manufacturers are Multimatic Corporation, Multimatic Dry Cleaning Machine Corporation, Multimatic LLC, and their successor in interest, Kirrberg Corporation ("Multimatic"), manufacturers of the Solo Plus 35 dry cleaning machine; R. R. Street & Co., Inc. ("Street"), the manufacturer of a device known as the Puritan 800 Plus Filter Still ("Still"); and the Hoyt Corporation ("Hoyt"), the manufacturer of a device known as the Hoyt Sniffer ("Sniffer") (collectively, "Defendants").
Hinds alleges that Defendants are liable under RCRA for having "contributed to the past and present handling, storage, treatment, transportation or disposal of hazardous waste," namely PCE. Hinds contends that Defendants "caused and contributed to the release of PCE into the environment . . . .
[b]y either operating, providing, installing, maintaining, and/or repairing dry cleaning machinery which was designed so that wastewater contaminated with PCE would and did flow into drains and into the sewer system." In so doing, Multimatic, Street and Hoyt allegedly "made a conscious decision to discharge used PCE" and "arranged for and controlled the disposal of PCE waste."
Hinds alleges generally that Defendants employed faulty machine design and distributed manuals that instructed users that they should dispose of contaminated waste water in drains or open sewers. Specifically, Hinds contends that Multimatic is liable because, in addition to cleaning clothes, its Solo Plus 35 dry cleaning machine allegedly "performed a second and distinct function of waste disposal," and the machine's instruction manual stated that waste water, which contained traces of PCE, "must flow into an open drain." Hinds alleges that Street's Still, used at the Clovis shopping center to separate off used PCE for reuse, similarly "existed for the purpose of waste removal and disposal." It contends that Street is liable for contamination caused by the use of its Still because Street explained that PCE-containing waste water produced by the Still "may be drained into a container or piped directly to a floor drain." Similarly, Hinds alleges that Hoyt is liable for ...