Liebhart, William et al v. Spx Corporation et al

Brief in Support of 35 Motion to Dismiss

W.D. Wis.January 17, 2017

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN WILLIAM LIEBHART, NANCY LIEBHART, JACOB LIEBHART, and EMILY LIEBHART, Plaintiffs, - vs - SPX CORPORATION, TRC COMPANIES, INC., and APOLLO DISMANTLING SERVICES, INC. Defendants. Civil Action No. 16-cv-700-JDP DEFENDANT SPX CORPORATION’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS QUARLES & BRADY LLP Matthew Splitek (SBN 1045592) 33 East Main Street, Suite 900 Madison, WI 53703 (608) 283-2454 / fax: (608) 294-4914 matthew.splitek@quarles.com and NIXON PEABODY LLP Joseph J. Ortego (pro hac) Vivian M. Quinn (pro hac) 437 Madison Avenue New York, New York 10022-7039 (212) 940-3000 / fax: (866) 947-2079 jortego@nixonpeabody.com vquinn@nixonpeabody.com Attorneys for Defendant SPX Corporation Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 1 of 30 - i - TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 BACKGROUND .............................................................................................................................3 STANDARD OF REVIEW .............................................................................................................5 ARGUMENT...................................................................................................................................6 I. THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) DOES NOT REGULATE THE DISPOSAL OF PCB WASTE.....................................................6 A. Congress Manifested Its Intent That The EPA Regulate PCB Waste Disposal Solely Under TSCA—Not RCRA .......................................................................................6 B. EPA Has Properly Interpreted RCRA As Not Regulating PCB Removal.....................8 C. EPA’s Interpretation Of RCRA As Not Regulating PCB Disposal Is Entitled To Controlling Weight Deference .....................................................................................10 II. PLAINTIFFS FAIL TO STATE A CLAIM FOR INJUNCTIVE RELIEF UNDER THE TOXIC SUBSTANCES CONTROL ACT (TSCA) .................................................12 III. PLAINTIFFS FAIL TO STATE A CLAIM FOR STRICT LIABILITY “ABNORMALLY DANGEROUS ACTIVITY” ..............................................................14 IV. PLAINTIFFS FAIL TO STATE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ................................................................................................17 A. Plaintiffs Fail To Allege An “Extraordinary Event” – A Necessary Element Of Their Tort Claim For “Negligent Infliction Of Emotional Distress”.................................19 B. Plaintiffs’ Bald Allegation Of “Severe Emotional Distress” Is Not Plausible On Its Face Or Otherwise Sufficient To Pass The Iqbal/Twombly Test............................20 C. Wisconsin Does Not Permit Claims For “Fear of Future Imagined Consequences”...21 V. PLAINTIFFS JACOB AND EMILY LIEBHART DO NOT HAVE STANDING TO BRING CLAIMS FOR TRESPASS AND NUISANCE WITH REGARD TO PROPERTY AT 1113, 1115, 1117, 1129 SOUTH WATER STREET OWNED BY WILLIAM AND NANCY LIEBHART AND THEIR TORT CLAIMS OTHERWISE FAIL TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED ........................................................................................................................24 CONCLUSION..............................................................................................................................27 Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 2 of 30 PRELIMINARY STATEMENT Plaintiffs William, Nancy, Jacob and Emily Liebhart attempt in their Complaint to bring citizen suits under federal environmental laws as well as common law tort claims against three companies, including Defendant SPX Corporation (“SPX”), for damage to property owned by William and Nancy Liebhart in Watertown, Wisconsin at 1113, 1115, 1117, and 1129 South Third Street in Watertown. Compl. ¶¶ 8, 36 [Dkt. No. 2]. The Complaint alleges that the United States Environmental Protection Agency (“EPA”) approved a plan for the demolition of a facility at 304 Hart Street in Watertown as part of a remedial PCB cleanup. Id. ¶¶ 36-37. In essence, plaintiffs claim that defendants spilled PCBs on their property (while cleaning up PCBs left behind by a prior owner of the property), and they want the court to affirmatively order defendants to clean up their property as a result. Id. ¶¶ 36-37, 86, 94 (seeking injunctive relief to “remediate the Liebhart Properties”). The Complaint names as Defendants SPX (the owner of the site), TRC Environmental Corporation (“TRC”) (the engineering, environmental consulting and construction management firm that allegedly oversaw the 2015 demolition), and Apollo Dismantling Services, LLC (“Apollo”) (the environmental service company that conducted the 2015 demolition). See Complaint, Dkt. No. 2. In attempting to expand their common law negligence and property damage suit to one of federal proportions, however, plaintiffs have exceeded the bounds of the statutory and tort theories available for such actions. First and foremost, this court lacks legal authority to grant the injunctive relief that plaintiffs seek in their citizen suits under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (“RCRA”) (Count I) and the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. (“TSCA”) (Count II). As set forth more fully below, RCRA is the wrong statute to address PCB cleanup; and while TSCA may be the appropriate statutory scheme, generally Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 3 of 30 - 2 - construed, for such a cleanup and while the EPA perhaps could order a cleanup if it decided it was necessary, plaintiffs do not meet the strict requirements to bring a TSCA citizen suit. In addition, plaintiffs’ strict liability claim (Count III) is barred by well-established law in the Seventh Circuit and elsewhere that EPA-approved cleanup plans may not be considered an “abnormally dangerous activity.” Nor do plaintiffs’ vague and ambiguous allegations of “concern” or “worry” as to the demolition, Compl. ¶¶ 63, 118, in some way give rise to a claim for negligent infliction of emotional distress (Count VII). Wisconsin law does not recognize claims for emotional distress predicated on allegations of property damage and nuisance, such as here, nor have plaintiffs alleged the necessary element of “severe emotional distress” sufficient to pass the Iqbal/Twombly test, as required to state such a claim. Moreover, Jacob and Emily Liebhart have no standing to bring claims of strict liability (Count III), negligence (Count IV), nuisance (Count V), and/or trespass (Count VI) against Defendant SPX with regard to the four properties (1113, 1115, 1117, and 1129 South Third Street) which are defined in paragraph 8 of the Complaint as “Liebhart Properties” owned by William and Nancy Liebhart. Although Jacob and Emily Liebhart allege they resided for a period of time with Jacob’s parents at 1115 South Third Street and moved out of that location in August 2015, Compl. ¶ 9, they do not allege any possessory or ownership interest in any of the four properties referenced in the Complaint. For the reasons set forth more fully below, Defendant SPX respectfully requests that Count I (RCRA), Count II (TSCA), Count III (strict liability for “abnormally dangerous activity”), and Count VII (“negligent infliction of emotional distress”) be dismissed in their entirety and with prejudice as to all four plaintiffs pursuant to Fed. R. Civ. P. 12(b)(6). In addition, the tort claims should be dismissed as to Jacob and Emily Liebhart on standing grounds and to the extent they fail to allege that SPX’s breach of duty or other tortious conduct with Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 4 of 30 - 3 - respect to a particular property caused damaged to Jacob or Emily, as opposed to Jacob’s parents William and Nancy Liebhart. Fed. R. Civ. P. 12(b)(1), (6). BACKGROUND The Allegations In Plaintiffs’ Complaint Plaintiffs William and Nancy Liebhart allege that they own property and residences at 1113, 1115, 1117, and 1129 South Third Street in Watertown, adjacent to the facility at 304 Hart Street that was demolished. Compl. ¶ 8. Plaintiffs Jacob and Emily Liebhart allege they resided for a time prior to and during the demolition in the house at 1115 South Water Street built by William Liebhart’s maternal grandfather. Id. ¶¶ 9, 16.1 Plaintiffs allege that Defendants SPX and TRC had worked with the EPA on plans for a “self-implementing on-site cleanup,” which, as set forth in the Complaint, was submitted to the EPA and the Wisconsin Department of Natural Resources outlining the steps defendants planned to take in the remediation. Id. ¶¶ 30, 32. Defendant Apollo, commenced the remediation and demolition of the facility soon after the EPA approved the cleanup plan on February 2, 2015. Id. ¶¶ 34-35. The Complaint alleges that defendants were proceeding pursuant to the EPA-approved plan when the demolition caused dust to “emanate[e] from the site” and the Liebharts observed “discoloration of the snow” on William and Nancy Liebhart’s properties. Id. ¶¶ 36-37. The tort and statutory claims for relief in the Complaint are directed solely to the demolition of the facility at 304 Hart Street that plaintiffs allege was conducted pursuant to the 1 Plaintiffs in their Complaint spend a good deal of time with “background” allegations going back to their alleged family roots in 1908, Compl. ¶ 16, prior use of the 304 Hart Street facility in the 1920s (as a woodworking factory) and 1950s (by an electric company), id. ¶¶ 17-18, the acquisition of the site in or around 1998 by SPX, id. ¶ 20, and more recently the EPA involvement and approval of self-implementing on-site cleanup and disposal at the site, id. ¶ 30. This background information, while perhaps interesting, does not, however, provide the necessary predicate for any substantive claims in the Complaint. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 5 of 30 - 4 - EPA-approved on-site cleanup plan and that was completed, at the latest, by August 2015. Id. ¶¶ 30, 53. See also Compl. ¶¶ 48, 107, 112 (alleging discharge of PCBs during demolition); ¶ 97 (alleging the demolition was an “abnormally dangerous activity”); ¶ 104 (alleging a breach of duty “in conducting the demolition”); ¶ 116 (“Defendants’ conduct in conducting the [d]emolition fell far below the standard of care”); ¶ 120 (alleging damages with regard to the demolition). Overview Of PCB Regulation By The EPA An entire section of the Toxic Substances Control Act (TSCA) is devoted to the handling and disposal of PCB remediation waste. 40 C.F.R. §§ 761.61(a)(2), (a)(3). PCBs (polychlorinated biphenyls) are explicitly addressed by Congress in the Act. 15 U.S.C. § 2605(e). Plaintiffs agree that TSCA regulates PCB disposal. See Compl. ¶¶ 32, 47-52, citing 40 C.F.R. §§ 761.61(a)(2), (a)(3). Although plaintiffs also make the conclusory assertion that PCBs may constitute hazardous waste subject to Resource Conservation and Recovery Act (RCRA) enforcement, Compl. ¶ 77, that legal conclusion has no support in fact or law. The decision to regulate PCB electrical fluid and electrical equipment under TSCA and not RCRA is rooted in the legislative and regulatory history of both laws, which were enacted within days of each other in 1976. See 53 Fed. Reg. 37,436 (Sept. 26, 1988). Congress enacted RCRA to regulate the management, transport, and disposal of solid and/or hazardous wastes. See 42 U.S.C. § 6902. RCRA included no specific provisions concerning PCBs. See 42 U.S.C. §§ 6901 et seq. In contrast, Congress enacted TSCA to regulate the manufacture, distribution, use and disposal of “chemical substance[s] or mixture[s],” 15 U.S.C. § 2605(a), and included statutory provisions directing EPA to specifically regulate the use and disposal of PCBs, PCB-containing equipment, and PCB waste. 15 U.S.C. § 2605(e) et seq. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 6 of 30 - 5 - Importantly, to address concerns about duplication or overlapping regulation, both statutes contain provisions directing the EPA Administrator to integrate the statutes with other environmental laws. Section 6905 of RCRA requires the EPA to “integrate all provisions of [RCRA] for purposes of administration and enforcement and shall avoid duplication, to the maximum extent practicable” between RCRA and “such other Acts of Congress as grant regulatory authority to the Administrator.” 42 U.S.C. § 6905(b). The TSCA section addressing coordination of enforcement efforts is found in Section 2608(b) of that statute. As discussed more fully below, not only does the express language of the statutes provide for PCB regulation via TSCA, by EPA’s own interpretation, the federal statutory provisions of RCRA do not regulate PCBs. Thus, plaintiffs’ claims, which are based solely on alleged PCB removal and disposition, do not constitute a “hazardous waste” that is subject to RCRA enforcement. Moreover, although plaintiffs allege that defendants “dithered and delayed” in addressing what plaintiffs believe was a “spill” during the demolition, id. ¶ 57, it is uncontested that to the extent any alleged “spill” or alleged “discharge of PCBs” somehow migrated to plaintiff William and Nancy Liebhart’s property, which Defendant SPX denies, that event has also long passed as it purportedly occurred during the demolition. See id. ¶ 48. There is no allegation of a continuing or intermittent violation with regard to the 304 Hart Street facility/site. Nor could there be, as the Complaint alleges that SPX completed the demolition over a year and a half before plaintiffs commenced suit, Compl. ¶ 53, thus barring any claim for injunctive relief under TSCA. STANDARD OF REVIEW To survive SPX’s motion to dismiss, each of the four plaintiffs must allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 7 of 30 - 6 - Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). Alleging facts “merely consistent with” SPX’s liability will not suffice. Id. Plaintiffs must offer more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“[t]he factual allegations [are] enough to raise a right to relief above the speculative level.”). Likewise, “naked assertions devoid of further factual enhancement” will not do. Iqbal, 556 U.S. at 678 (internal quotations omitted). Plaintiffs instead must plead “factual content that allows the court to draw the reasonable inference that [SPX] is liable for the misconduct alleged.” Id. ARGUMENT I. THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) DOES NOT REGULATE THE DISPOSAL OF PCB WASTE A. Congress Manifested Its Intent That The EPA Regulate PCB Waste Disposal Solely Under TSCA—Not RCRA Congress directed the EPA to regulate PCB waste disposal under TSCA’s provisions. TSCA explicitly requires the EPA to “promulgate rules to . . . prescribe methods for the disposal of polychlorinated biphenyls [PCBs] . . . .” 15 U.S.C. § 2605(e)(1). Accordingly, the EPA comprehensively regulates PCB waste disposal under TSCA. An entire subpart of the EPA’s TSCA regulations govern the storage and disposal of PCB waste. See 40 C.F.R. Ch. I, Subch. R, Pt. 761, Subpt. D; 40 C.F.R. § 761.50(1)(a) (“Any person storing or disposing of PCB waste must do so in accordance with subpart D of this part.”); see also U.S. v. Burns, 512 F. Supp. 916, 919 (W.D. Pa. 1981) (“Under TSCA the EPA Administrator has promulgated comprehensive regulations dealing with disposal of PCBs, as well as the handling and storage of PCBs.”). As relevant here, those regulations include a section that provides “cleanup and disposal options for PCB remediation waste.” 40 C.F.R. § 761.61. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 8 of 30 - 7 - Further, when enacting RCRA, Congress directed the EPA not to duplicate the regulations that Congress was simultaneously requiring under TSCA. Congress delegated to the EPA the task of defining RCRA’s scope, requiring it to promulgate regulations “identifying the characteristics of hazardous waste, and listing particular hazardous wastes . . . which shall be subject to” RCRA’s subchapter governing hazardous waste management. 42 U.S.C. § 6921(b)(1). But Congress also instructed the EPA to “integrate all provisions of [RCRA] . . . and [to] avoid duplication, to the maximum extent practicable, with the appropriate provisions of . . . such other Acts of Congress as grant regulatory authority to the [EPA] Administrator.” 42 U.S.C. § 6905(b)(1) (emphasis added). This mandate of non-duplication foreclosed any application of RCRA as governing the disposal of PCB waste. Within a few years of RCRA and TSCA’s near-simultaneous enactment, a federal district court confirmed that regulating PCB waste disposal under RCRA would constitute “forbidden duplication.” Burns, 512 F. Supp. at 918. In that case, the United States alleged improper PCB waste disposal under both TSCA and RCRA, at a time when EPA still had yet to “integrate TSCA PCB regulations and RCRA regulations . . . .”2 Id. at 919. The district court in Burns dismissed the government’s RCRA claim on the pleadings. It concluded that “the requirement of RCRA that the EPA integrate RCRA with other statutes is inconsistent with the position that the Government can pick and choose its enforcement mechanism,” id. at 918, and that since “TSCA adequately addresse[d] the problems of disposal of PCBs…raised in the [government’s] complaint . . . [a]llowing the Government to proceed under both TSCA and RCRA would permit 2 EPA has since completed that integration. See Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Recycled Used Oil Management Standards, 68 Fed. Reg. 44,659 (July 30, 2003). Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 9 of 30 - 8 - the kind of duplication that section 1006 [42 U.S.C. § 6905(b)] is designed to prevent.” Id. at 919. Several years later, a second district court confirmed again “that polychlorinated biphenyls (PCBs) are not ‘hazardous wastes’ under RCRA, but are regulated exclusively under other federal and state environment statutes.” Brewer v. Ravan, 680 F. Supp. 1176, 1181 (M.D. Tenn. 1988) (citing Burns, as well as secondary authorities regarding the regulation of hazardous waste). In that case, the district court granted a motion to dismiss a RCRA claim in a “citizen suit” pled under both RCRA and TSCA. The court noted that—twelve years after RCRA and TSCA’s enactment—“the EPA ha[d] never identified and listed PCBs as ‘hazardous wastes’ pursuant to [RCRA].” Id. Thus, it held that “unless plaintiffs’ RCRA claims are based on the storage, disposal, or open-dumping of other ‘hazardous wastes,’ they must be dismissed.” Id. (emphasis added). B. EPA Has Properly Interpreted RCRA As Not Regulating PCB Removal As Brewer recognized, the EPA has never identified PCBs as being among the “hazardous wastes” regulated under RCRA. The EPA’s RCRA regulations list numerous “hazardous wastes” for purposes of the statute. See 40 C.F.R. §§ 261.31 to 261.33. PCBs are nowhere among them. To the contrary, the EPA has confirmed in numerous Consent Agreements and other decisions that, by its interpretation, TSCA is the source of PCB regulations, not RCRA. For example, the EPA Environmental Appeals Board has written, The current regulatory scheme for transformers containing PCB fluid is predicated on section 6(e) of the Toxic Substances Control Act (“TSCA”), which mandates the control and phase-out of manufacturing, processing, distribution in commerce, and use of PCBs. 15 USC § 2605(e). Congress was motivated to enact TSCA section 6(e) due to dangers associated with PCBs: “The problems associated with widespread use and dispersal of PCB’s (Polychlorinated Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 10 of 30 - 9 - Biphenyls) are a prime example of the type of chemical hazard to which the Toxic Substances Control Act should immediately address itself.” In Re Lazarus, Inc., 7 E.A.D. 318 (EPA App. Bd. 1997). See also Matter of MPD, Inc., 2010 WL 1255540, TSCA-04-2009-2913 (Feb. 25, 2010) (EPA explaining that “PCB regulations were promulgated pursuant to Section 6(e) of TSCA, 15 U.S.C. § 2605(e).”).3 There are also clear demonstrations—in addition to its decision never to identify PCBs as a “hazardous waste” under RCRA—that the EPA does not view RCRA as regulating PCB waste disposal. For example, the EPA promulgated 40 C.F.R. § 279.10, “Standards for the Management of Used Oil.” There, the EPA specifies, “Used oil containing PCBs at concentrations of 50 ppm or greater is not subject to the requirements of this part [RCRA regulations], but is subject to regulation under 40 C.F.R. part 761 [the regulations interpreting TSCA].” 40 C.F.R. § 279.10(i). In addition, in one of its regulations, the EPA lists the hazardous substances that are subject to CERCLA. 40 C.F.R. § 302.4. Because CERCLA sometimes draws it definitions from other statutes, the regulation lists which statute the EPA relies on to regulate that particular chemical. Section 302.4 states that PCBs are regulated under two sections of the Clean Water Act and the Clean Air Act, but not RCRA. Id. 3 The EPA has also stated that “[p]ursuant to Section 6(e) of TSCA, 15 U.S.C. § 2605, the Administrator of EPA promulgated regulations 40 C.F.R. Part 761, pertaining to PCBs. Failure to comply with any such regulation constitutes a violation of Section 15 of TSCA, 15 U.S.C. § 2614.” Matter of Hartselle Util., 2010 WL 3885542, TSCA-04-2010-2904(b) (Sept. 14, 2010); Matter of Riviera Util., 2010 WL 3885524, TSCA-04-2010-2903(b) (Sept. 1, 2010) (same). In Matter of Guntersville Elec. Bd., 2010 WL 3885539, TSCA-04-2010-2907(b) (Aug. 3, 2010), the EPA stated that “an inspection was conducted at Respondent’s facility…to determine compliance with regulations promulgated under Section 6(e) of TSCA pertaining to PCBs”); see also Matter of Bristol Broad. Co., 2010 WL 3907341, TSCA-04-2010-2902(b) (Sept. 16, 2010). Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 11 of 30 - 10 - C. EPA’s Interpretation Of RCRA As Not Regulating PCB Disposal Is Entitled To Controlling Weight Deference RCRA’s textual command that the EPA “avoid duplication, to the maximum extent practicable” when regulating under RCRA, 42 U.S.C. § 6905(b)(1), itself is dispositive of the question whether RCRA can be used to duplicate the EPA’s “comprehensive regulations dealing with disposal of PCBs” under TSCA. Burns, 512 F. Supp. at 919. It cannot. In determining the application of a statute, “[f]irst, always, is the question whether Congress has directly spoken to the precise question at issue.” Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). Congress spoke directly and clearly in the text of 42 U.S.C. § 6905(b)(1). Moreover, even if RCRA’s text were not definitive, the EPA’s interpretation and application of RCRA would be entitled to judicial deference. “If Congress has explicitly left a gap for the agency to fill” when administering a statute, “there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” and “[s]uch regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 843; see also id. (Even where “the legislative delegation to an agency on a particular question is implicit rather than explicit . . . a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”). Congress delegated such authority when it required the EPA to promulgate regulations “identifying the characteristics of hazardous waste, and listing particular hazardous wastes . . . which shall be subject to” RCRA’s subchapter governing hazardous waste management. 42 U.S.C. § 6921(b)(1). The EPA has exercised that discretion by regulating PCB waste disposal solely under TSCA—never classifying PCBs as a “hazardous waste” under RCRA. That very reasonable construction of the statute is entitled to deference from the courts. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 12 of 30 - 11 - Although one court has simultaneously applied both TSCA and RCRA to an issue of PCB waste remediation, see New York Communities for Change v. New York City Dep’t of Educ., 2012 WL 7807955 (E.D.N.Y. Aug. 29, 2012), report and recommendation adopted, 2013 WL 1232244 (E.D.N.Y. Mar. 26, 2013), that case construed RCRA incorrectly. The Magistrate Judge in New York Communities for Change failed to consider the deference afforded to the EPA either through EPA appeals board decisions, consent agreements or case law (i.e., Chevron, supra).4 Moreover, the New York Communities for Change decision erroneously relied upon a prior case, U.S. v. Vineland Chem. Co., Inc., 692 F. Supp. 415 (D.N.J. 1988), in which neither PCB waste nor TSCA were even at issue.5 Moreover, the conclusion in New York Communities for Change is inconsistent with the view the court espoused that the EPA is required to integrate TSCA and RCRA to avoid duplication, that it is in EPA’s discretion how to regulate PCBs, and that RCRA and TSCA claims cannot overlap. As the Burns court explained, courts must heed Congress’s explicit mandate to prevent duplicative enforcement actions, and should defer to EPA’s decision to regulate PCBs under TSCA and not RCRA. 512 F. Supp. at 918-919. Considering the statutory language, the implementing regulations, and the deference that must be afforded to the EPA, it must be concluded that RCRA does not regulate PCB disposal at the 304 Hart Street facility and that plaintiffs’ RCRA claim (Count I) must be dismissed. 4 While another court, in case under RCRA and CERCLA (not TSCA), found that contaminated oil containing PCBs constituted “hazardous waste” under RCRA, that court relied on the presence of “[o]ther contaminants . . . present . . . at levels exceeding relevant toxicity thresholds”—including “[a]rsenic”—in reaching this conclusion. See U.S. v. Union Corp., 259 F. Supp.2d 356, 401-403 (E.D. Pa. 2003). To whatever extent Union Corp. implies that PCBs alone may be a “hazardous waste” under RCRA, it does not sufficiently defer to EPA’s refusal to classify them as such. 5 The issue in Vineland was whether the defendants were required to submit a post-closure plan relating to the closure of hazardous waste disposal facilities that indisputably were regulated by RCRA. See Vineland, 692 F. Supp. at 416-17 & 419-20. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 13 of 30 - 12 - II. PLAINTIFFS FAIL TO STATE A CLAIM FOR INJUNCTIVE RELIEF UNDER THE TOXIC SUBSTANCES CONTROL ACT (TSCA) To bring a civil action under TSCA a plaintiff must allege that defendant “is in violation” of the Act or face dismissal of his claim. This requirement is based on the explicit language of TSCA that a civil action is permitted only against a person or entity who is alleged to “be in violation” of TSCA. 15 U.S.C. § 2619(a)(1). Here, plaintiffs allege that demolition at 304 Hart Street was completed at the latest by August 2015. Compl. ¶ 53. There are no allegations that SPX or the other defendants are engaging in ongoing (continuous or intermittent) demolition at 304 Hart Street. As such, plaintiffs’ statutory claim for injunctive relief under TSCA must be dismissed for failure to state a claim. In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987), the Supreme Court held that private plaintiffs may not sue on the basis of wholly past violations by defendants when Congress authorizes suits against persons alleged “to be in violation.” Id. at 57. Rather, “[t]he most natural reading of ‘to be in violation’ is a requirement that citizen-plaintiffs allege a state of either continuous or intermittent violation—that is, a reasonable likelihood that a past polluter will continue to pollute in the future.” Id. While the Court in Gwaltney addressed the Clean Water Act’s citizen suit provision, 33 U.S.C. § 1365(a)(1), the Supreme Court stated that “Congress used identical language in the citizen suit provisions of several other environmental statutes that authorize only prospective relief” including TSCA. Id. (citing, inter alia, 15 U.S.C. § 2619). Indeed, district courts have held that TSCA only authorizes a citizen suit for “ongoing violations.” See Arbor Hill Concerned Citizens Neighborhood Ass’n v. City of Albany, 250 F. Supp.2d 48, 60 (N.D.N.Y. 2003) (relief is only available under citizen suit provision of TSCA to restrain “ongoing violations” and not any type of affirmative or remedial relief for alleged past violations); Brewer, 680 F. Supp. at 1184 (“the scope of prospective Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 14 of 30 - 13 - injunctive relief in a TSCA citizen suit is limited to the restraint of ongoing violations”); Moreco Energy, Inc. v. Penberthy-Houdaille, 682 F. Supp. 931, 933 (N.D. Ill. 1987) (must plead an “ongoing violation”). Accordingly, plaintiffs must make a good faith allegation that the alleged TSCA violations are continuous or intermittent at the time of the complaint. In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 559 F. Supp.2d 424, 428 n.17 (S.D.N.Y. 2008); see Gwaltney, 484 U.S. at 64. Plaintiffs do not allege that defendants’ alleged violation of TSCA is of a continuous or intermittent nature. Nor can they, as plaintiffs concede that defendants completed the demolition of the facility in August 2015. Compl. ¶ 53. Further, any attempt by plaintiffs to characterize past PCB-remediation activities as “ongoing violations” is inappropriate and should be rejected. To the extent that plaintiffs challenge the proper performance of the remediation (see Compl. ¶ 53), such a challenge relates by definition to past conduct, and thus is a past violation, not an “ongoing violation.” Nor do allegations that plaintiff William Liebhart experienced a rash on his face over a year after the demolition was completed, id. ¶ 58, somehow resurrect a claim that is already barred, as that allegation goes to alleged injury and damages, not an activity that is allegedly regulated by TSCA. For all of the reasons set forth above, plaintiffs’ TSCA claim (Count II) should be dismissed for failure to state a claim. If plaintiffs William and Nancy Liebhart wish to seek redress for the dust and discoloration they believe has occurred on their property, the proper avenue would be via tort, not federal regulatory action. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 15 of 30 - 14 - III. PLAINTIFFS FAIL TO STATE A CLAIM FOR STRICT LIABILITY “ABNORMALLY DANGEROUS ACTIVITY” Plaintiffs allege that the cleanup of PCBs on the 304 Hart Street site was an “abnormally dangerous activity,” (Compl. ¶ 97), and seek damages for alleged exposure to PCBs (see Compl., Relief Requested). The tort of strict liability (“abnormally dangerous activity”), however, does not appropriately address the activities alleged in the Complaint. Environmental EPA-approved cleanup and plan to remediate a facility via demolition is not the type of activity deemed by the courts in Wisconsin and elsewhere to constitute an “abnormally dangerous activity,” i.e. one for which negligence liability (such as plaintiffs allege here in Count IV) cannot adequately control. City of Bloomingdale, Inc. v. Westinghouse Elec., 891 F.2d 611, 616 n.7 (7th Cir. 1989) (no court has held the manufacture of PCBs is an abnormally dangerous activity). The Seventh Circuit in Indiana Harbor Belt R. Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1176 (7th Cir. 1990), discussing the rationale for a strict liability legal regime in certain prescribed cases and the factors to consider. Indiana Harbor Belt explains that where the harm associated with any activity could be eliminated by reasonable care, “there is no need for strict liability to apply.” Id. at 1177. Negligence is the preferred standard in those cases. Id. The Seventh Circuit also stresses that the analysis should focus not on the substance, but on the activity that involves the substance. Id. at 1181 (holding that a chemical manufacturer which shipped a flammable, toxic chemical in a railroad tank car through a densely populated metropolitan area was not strictly liable for the consequences of the spill). Examples of potential activities that warrant a “strict liability” approach are the use, transportation or storage of explosives, see Restatement (Second) of Torts § 520 cmt. c, not EPA-approved cleanups such as the one at issue in the present case. The determination of whether an activity is an abnormally dangerous activity is a question of law for the court. See Indiana Harbor Belt, 916 F.2d at 1176. And, plaintiffs bear Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 16 of 30 - 15 - the burden of coming forward with facts sufficient to support a theory of abnormally dangerous activity, e.g. to establish that Wisconsin courts would adopt strict liability, rather than negligence, as the appropriate legal regime for damages resulting from defendants’ activity. Fallon v. Indian Trail School, 148 Ill. App.3d 931 (Ill. App. 1986) (“We must [] decide whether the plaintiff has alleged sufficient facts to support the contention that … trampoline usage is an abnormally dangerous activity.”). See also Sweetsir v. BlueDot Med., Inc., 2007 WL 5329349 (W.D. Wis. Feb. 5, 2007) (“Plaintiff has not shown that [defendant’s] sale of the chair to plaintiff was an abnormally dangerous activity.”); Chaveriat v. Williams Pipe Line Co., 1994 WL 583598 (N.D. Ill. Oct. 18, 1994) (holding as a matter of law that transporting petroleum products by pipeline is not an abnormally dangerous activity. Plaintiff “presented nothing from which [the court] can divine the frequency of such spills despite reasonable care or the extent of damage likely despite reasonable care.”). Based on this well-established law courts have determined that cleaning up PCBs from an industrial site is not considered to be an abnormally dangerous activity. See, e.g., Ganton Tech. v. Quadion Corp., 834 F. Supp. 1018, 1020 (N.D. Ill. 1993). See also City of Bloomingdale, 891 F.2d at 616 (unwilling to extend doctrine of strict liability for abnormally dangerous activities to the manufacture of PCBs). The district court in Ganton Tech analyzed the allegations of alleged PCB disposal in light of this Seventh Circuit precedent and held that the cleanup of PCBs from an industrial site is not an abnormally dangerous activity that warrants the application of strict liability. Ganton Tech., 834 F. Supp. at 1020 (citing Indiana Harbor Belt, 916 F.2d at 1174). In Ganton Tech, as here, plaintiffs provided the court with “no basis for believing any risk of harm could not be eliminated by use of reasonable care.” Id. (citing Restatement (Second) of Torts § 520). Further, focusing on the activity instead of the chemical as the Seventh Circuit requires, see Indiana Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 17 of 30 - 16 - Harbor Belt, 916 F.2d at 1181,6 cleanup operations “serve the valuable and essential social function of reducing the danger of PCBs.” Ganton Tech., 834 F. Supp. at 1020. Nor may plaintiffs attempt to assert a strict liability claim based on alleged environmental exposure to hazardous substances in or around a demolition. In analyzing a similar claim, the district court in G.J. Leasing Co. v. Union Elec. Co., 825 F. Supp. 1363, 1375, vacated on other grounds on denial of reconsideration, 839 F. Supp. 21 (S.D. Ill. 1993), concluded that a demolition resulting in disposal of hazardous substances was not an abnormally dangerous activity that warrants the application of strict liability. The G.J. Leasing court reasoned that environmental-type injuries are distinctly different from the damages sought in a “usual” demolition case (cranes falling, debris flying, or buildings falling into other buildings). Id. at 1375 (citing Clark v. City of Chicago, 410 N.E.2d 1025 (Ill. App. Ct. 1980); Sherman House Hotel Co. v. Gallagher, 129 Ill. App. 557 (Ill. App. Ct. 1906) (plaintiff injured by piece of iron that fell on his head during demolition of balcony); City of Joliet v. Harwood, 86 Ill. 110 (1877) (plaintiff injured from use of explosives in the demolition and flying debris)). Courts imposing a strict liability regime (rather than negligence) do not contemplate exposure to hazardous substances from cleanup activities to be abnormally dangerous as a matter of law. G.J. Leasing, 825 F. Supp. at 1375. The activities alleged in the Complaint with regard to the self-implementing EPA- approved cleanup plan for the 304 Hart Street facility do not fall within the type of activity that can only be addressed by a “strict liability” standard. Count III fails to state a claim for relief and should be dismissed in its entirety and with prejudice. 6 Again, whether or not an activity should be deemed abnormally dangerous is not tested by the substance itself, but by the activity alleged to be abnormally dangerous. Indiana Harbor Belt, 916 F.2d at 1181. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 18 of 30 - 17 - IV. PLAINTIFFS FAIL TO STATE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS The avenue to recovery for “emotional distress” damages is extremely circumscribed. For example, courts typically do not permit recovery for emotional distress in connection with claims involving property damage. Indeed, as discussed more fully below, Wisconsin’s Supreme Court has stressed that it is unlikely plaintiff could ever recover for emotional distress based on property damage. Kleinke v. Farmers Coop. Supply & Shipping, 549 N.W.2d 714, 716 (Wis. 1996). See also Duffy v. Orlan Brook Condo. Owners’ Ass’n, 981 N.E.2d 1069, 1082 (Ill. App. Ct. 2012) (no negligent infliction of emotional distress claim for plaintiff condominium owner against defendants condominium association and its members for not making repairs to the common elements of the building that had caused damage to plaintiff’s individual unit); Bernhardt v. Ingham Reg’l Med. Ctr., 641 N.W.2d 868, 870-871 (Mich. Ct. App. 2002) (no recovery in Michigan for emotional injuries allegedly suffered as a consequence of property damage). Just as circumscribed, is the availability of a separate tort remedy entitled “negligent infliction of emotional distress,” as courts impose requirements to help insure the legitimacy of the claimed emotional distress, limit negligent infliction of emotional distress claims as to authenticity and fairness, and provide a stopping point for liability. Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 432, 443-444 (Wis. 1994). The Wisconsin Supreme Court in Bowen set forth six public policy factors to help determine whether a plaintiff is precluded, as a matter of law, from recovery: (1) whether the injury is too remote from the negligence; (2) whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor; (3) whether in retrospect it appears too extraordinary that the negligence should have brought about the harm; (4) whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor; (5) whether allowance of recovery would be too likely to open the way to fraudulent Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 19 of 30 - 18 - claims; and (6) whether allowance of recovery would enter a field that has no sensible or just stopping point. Id. Plaintiffs here fail to satisfy the elements of a claim for “negligent infliction of emotional distress.” There is no basis in fact or law for permitting a homeowner or bystander to bring a tort claim for “negligent infliction of emotional distress” for witnessing an environmental cleanup or “spill”. And research reveals no case law where a plaintiff was permitted to bring a tort claim for “negligent infliction of emotional distress” under the facts and circumstances alleged in plaintiffs’ Complaint.7 7 Nor have plaintiffs stated a claim for “bystander” negligent infliction of emotional distress. The Bowen court identified three factors in addition to the six factors that confine the claim in the first instance that must be considered by the trial court to support a bystander claim: “the severity of the injury to the victim, the relationship of the plaintiff to the victim, and the extraordinary circumstances surrounding the plaintiff's discovery of the injury.” Bowen, 517 N.W.2d at 656-658. Bystander claims are limited to those where a victim is severely injured, where the bystander and the injured person have a close family relationship (spouse, parent, child, grandparent, grandchild or sibling of the victim), and the nature and extent of the “extraordinary circumstances surrounding the bystander plaintiff’s discovery of injury.” Id. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 20 of 30 - 19 - A. Plaintiffs Fail To Allege An “Extraordinary Event” – A Necessary Element Of Their Tort Claim For “Negligent Infliction Of Emotional Distress” To state a claim for negligent infliction of emotional distress, one of the factors to be considered is whether the event allegedly giving rise to the alleged distress was an “extraordinary event.” Kleinke, 549 N.W.2d at 716 (“The emotional pain that is recoverable in negligent infliction of emotional distress cases must be related to an extraordinary event.”). In Kleinke, plaintiffs allegedly suffered severe emotional distress and depression from being forced to abandon their home of 42 years because fuel oil was present in their basement. In holding that plaintiffs’ claim for negligent infliction of emotional distress was barred, the court reasoned that it is unlikely that a plaintiff could ever recover for emotional distress based on property damage. The court stated: …emotional distress based on property damage is the type of injury that will usually be wholly out of proportion to the culpability of the negligent party. The emotional pain that is recoverable in negligent infliction of emotional distress cases must be related to an extraordinary event. Having one’s property damaged is not nearly as devastating as witnessing or being involved in the loss of a close relative ... This is not to say that people cannot become extremely distraught when they learn of damage to their property, especially property which is quite significant to them personally. However, such types of distress are not compensated because [they are] life experience[s] that all [unfortunately] may expect to endure. Id. at 716-717. Here, plaintiffs allege they are deprived of certain activities in their backyard that they claim were “the center of the Liebhart Family’s lives.” Compl. ¶ 60. They also claim that a raccoon family took up residence in the yard and “harassed the family dogs,” allegedly contributing to their “anguish.” Id. ¶ 68. As in Kleinke, distress arising from property damage—even the presence of fuel oil in a home’s basement—is “not ‘compensated because [they are] life experiences that all [unfortunately] may expect to endure.”’ Id. at 717 (quoting Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 21 of 30 - 20 - Bowen, 517 N.W.2d at 445). For this reason alone, plaintiffs’ claims for negligent infliction of emotional distress (Count VII) must be dismissed. B. Plaintiffs’ Bald Allegation Of “Severe Emotional Distress” Is Not Plausible On Its Face Or Otherwise Sufficient To Pass The Iqbal/Twombly Test To state a tort claim for negligent infliction of emotional distress, a plaintiff must allege not only negligence with respect to the “extraordinary event” and that the negligence was a cause of plaintiff’s emotional distress, but also that the resulting emotional distress was “severe.” Camp v. Anderson, 721 N.W.2d 146, 151 (Wis. Ct. App. 2006). Plaintiffs must offer more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). The Liebhart plaintiffs’ bald allegations in the Complaint of “severe emotional distress” do not pass this test. To meet the standard that the emotional distress be “severe,” the emotional distress must be “‘so severe that no reasonable man could be expected to endure it.’” Bowen, 517 N.W.2d at 442 n.23. As the Wisconsin Supreme Court in Bowen explains, it is important to limit actionable emotional distress to adequately assure the authenticity of claims of emotional distress and prevent unlimited liability for the tortfeasor: Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea. It is only where it is extreme that the liability arises. Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is part of the price of living among people. The law intervenes only where the distress is so severe that no reasonable man could be expected to endure it. Id. (internal citations omitted)); see also Camp, 721 N.W.2d at 151 (“plaintiff’s claim [for negligent infliction of emotional distress must] satisfy the elements of negligent conduct, causation and injury (severe emotional distress) ....”). Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 22 of 30 - 21 - The appellate court in Hicks v. Nunnery, 643 N.W.2d 809 (Wis. Ct. App. 2002), explained: The plaintiff must demonstrate that he suffered an extreme disabling emotional response to the defendant’s conduct. The severity of the injury is not only relevant to the amount of recovery, but is a necessary element to any recovery. Id. at 818. Plaintiffs here again improperly lump their allegations as to all four plaintiffs into one “group” allegation, claiming only “worry” and “concern” as to potential future health effects (Compl. ¶¶ 64, 118) and, in the case of plaintiff Nancy Liebhart, “blue moods” (id. ¶ 65). While plaintiffs (again as a composite) parrot the requisite “severe emotional distress” in Count VII of the Complaint, the facts and circumstances alleged elsewhere in the Complaint do not support the allegation required to state a claim. Twombly, 550 U.S. at 570 (factual allegations must be enough “to raise a right to relief above the speculative level.”). “[N]aked assertions devoid of further factual enhancement” will not do. Iqbal, 556 U.S. at 67. Plaintiffs instead must plead “factual content that allows the court to draw the reasonable inference that [defendants are] liable for the misconduct alleged.” Id. This they did not, and cannot, do given the facts and circumstances of this lawsuit. The claim for negligent infliction of emotional distress should be dismissed as to all four plaintiffs. C. Wisconsin Does Not Permit Claims For “Fear of Future Imagined Consequence” Nor may plaintiffs create an end-run around well-established Wisconsin law precluding a “fear of health effect” claim by attempting to bring a claim for negligent infliction of emotional distress (based on “fear” of a potential future medical outcome). The Wisconsin Court of Appeals in Alsteen v. Wauleco, 802 N.W.2d 212 (Wis. Ct. App. 2011), reinforced Wisconsin’s basic common law principle that a plaintiff must allege and prove an actual, present injury to recover in tort. The Alsteen plaintiffs wanted to bring claims for fear of cancer in a case alleging Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 23 of 30 - 22 - release of a chemical preservative into a residential neighborhood in Wausau, Wisconsin from 1946 to 1986. Plaintiffs alleged that the chemical exposure “significantly increased their risk of contracting cancer” and sought future expenses related to medical monitoring. The Appellate Court upheld dismissal of plaintiffs’ claims, finding that the alleged risk of future harm was insufficient to state a claim for actual injury, as required by Wisconsin law. Id. at 215-216. Plaintiffs’ allegation that they face a significantly increased risk of cancer does not state an injury, because Wisconsin law holds that the “mere possibility of future harm” does not constitute actual injury; moreover, mere exposure to a hazardous substance is not an actual injury and stressing the different policy concerns involving the possibility of environmental exposure to toxins, as “most people are exposed to a wide variety of environmental contaminants, including carcinogens, on a daily basis.” Id.; see also Howard v. Mt. Sinai Hosp., Inc., 217 N.W.2d 383, 385 (Wis. 1974) (Wisconsin Supreme Court emphasizing that fear or phobia (as in a fear of future cancer), is not an actionable element of damages where the claim is remote and out of proportion to the culpability of the tortfeasor). Although neither Alsteen nor Howard involved a separate and distinct claim for “negligent infliction of emotional distress,” they are instructive as to how Wisconsin would address such a claim in the environmental setting involving alleged “fear of future injury.” Alsteen stresses that mere exposure to a dangerous substance is not an actual injury. 802 N.W.2d at 482-82 (explaining that Wisconsin rejects landowner claims that “their ‘cancer-fear’ claims [are] valid as a matter of law, because their groundwater constitute[d] a ‘contaminated source’ of water.”). As Alsteen explains [C]ases involving potential exposure to environmental contaminants do not give rise to an “actual injury” as most people are exposed to a wide variety of environmental contaminants, including carcinogens, on a daily basis, and if mere exposure to a contaminated source were sufficient to state an actual injury in the toxic tort context, the number of potential claimants would be enormous. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 24 of 30 - 23 - Id. at 484 (citing Metro-North Commuter RR Co. v. Buckley, 521 U.S. 424, 442 (1997)). The Howard concurrence also expressed concerned about opening the litigation floodgates: If the slightest of fender-bender accidents could result in recovery for a baseless fear or claim of fear of developing cancer or arthritis years later, it would be difficult to draw the line between the various ‘phobias’ claimed once a reasonable basis for any and all of them was held unnecessary to recovery. Howard, 217 N.W.2d at 388. If plaintiffs in Wisconsin cannot bring a claim for medical monitoring with regard to “fear of future injury” claims, then certainly they cannot recover for “negligent infliction of emotional distress” by making the same allegations. Plaintiffs’ claims of “anguish” and “worry” here relate either to the alleged environmental intrusion on their property (“the center of the Liebhart Family’s lives”) or to potential future health effects that are speculative in nature.8 Plaintiffs have not properly alleged an “extraordinary event” or the “severe” emotional distress required for negligent infliction of emotional distress. They may not attempt to circumvent well-established law limiting claims for fear of future harm by injecting a tort for “negligent infliction of emotional distress” into their Complaint for negligence, nuisance and trespass. Count VII of plaintiffs’ Complaint must be dismissed. 8 Plaintiffs describe dead birds on the property and dogs vomiting in the yard, claiming this caused anguish with regard to potential “future health problems.” Compl. ¶ 69. Plaintiffs also allege generally a concern that “their lives could be cut short because of PCB exposure.” Id. ¶ 64. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 25 of 30 - 24 - V. PLAINTIFFS JACOB AND EMILY LIEBHART DO NOT HAVE STANDING TO BRING CLAIMS FOR TRESPASS OR NUISANCE WITH REGARD TO PROPERTY AT 1113, 1115, 1117, 1129 SOUTH WATER STREET OWNED BY WILLIAM AND NANCY LIEBHART, AND THEIR TORT CLAIMS OTHERWISE FAIL TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED In addition to the pleading deficiencies discussed above, the Complaint (on all eight counts) impermissibly combines claims of each of the four plaintiffs with those of the other plaintiffs, regardless of whether or not there is any nexus alleged between a particular plaintiff and the property or tort alleged. For example, although Jacob and Emily Liebhart allege they lived with Jacob’s parents at 1115 South Water Street for some period of time prior to August 2015, there are no such allegations with regard to the other three addresses (1113, 1117, 1129 South Water Street, Watertown), and their allegations with regard to 1115 South Water Street are cursory at best. There is no allegation that Jacob or Emily Liebhart had (or have) an ownership or legal interest sufficient to afford them standing to bring the tort claims alleged in the Complaint.9 The courts have developed several justiciability doctrines to enforce the case-or- controversy requirement, and “perhaps the most important of these doctrines” is the requirement that “a litigant have ‘standing’ to invoke the power of a federal court.” Allen v. Wright, 486 U.S. 737, 750 (1984). Courts recognize three required elements of constitutional standing — an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical; a causal connection between the injury and the conduct complained of, i.e. the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court; and it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable 9 They allegedly moved from Jacob’s parent’s house in August 2015 and apparently are no longer living in the vicinity of the 304 Hart Street facility. Id. ¶ 9. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 26 of 30 - 25 - decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotations, alterations, and citations omitted). To satisfy “the injury-in-fact element” (which is often determinative), the alleged injury must be “particularized,” in that it “must affect the plaintiff in a personal and individual way.” Id. at 560 n.1 (injury must be “an invasion of a legally protected interest”); see also id. at 563 (the party seeking review must be himself among the injured). Since “standing is not dispensed in gross,” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996), a plaintiff who raises multiple causes of action “must demonstrate standing for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). As such, “the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Allen, 468 U.S. at 752. To maintain an action for trespass, a party must have either actual possession of the land upon which the trespass is committed, which may be demonstrated by acts of ownership or dominion, or good title to the property. State v. Gaulke, 503 N.W.2d 330 (Wis. Ct. App. 1993); see also Wait v. Jones, 821 N.W.2d 413 (Wis. Ct. App. 2012) (motion to dismiss on plaintiffs’ trespass claim granted where plaintiff did not plead he had ownership of, dominion over, or good title to the area where he claims defendant trespassed). A plaintiff bringing a claim for nuisance must have an ownership (or at a minimum a legal possessory interest) in the property that has allegedly been tortiously invaded. Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 692 N.W.2d 658, 669-670 (Wis. 2005) (an action to recover damages for a private nuisance may be brought only by those who have property rights and privileges in respect to the use and enjoyment of the land affected). Although courts have permitted nuisance claims brought by possessors of the land and owners of easements, see id., a general allegation that a person lived for a period of time on such and such property, absent more, is insufficient to state a claim for Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 27 of 30 - 26 - nuisance, especially where other parties are claiming “nuisance” with regard to the property. To hold otherwise would allow for competing claims as to the same property and result in duplicative and redundant recovery. Plaintiffs Jacob and Emily Liebhart fail to satisfy the pleading requirement that a plaintiff have an ownership of, dominion over, or title to the property at issue to bring a viable claim for trespass or nuisance. Nor could they because plaintiffs William and Nancy Liebhart allege such rights with regard to all four addresses (1113, 1115, 1117, and 1129 South Third Street, collectively defined as “Liebhart Properties”). Compl. ¶ 8. Allegations that Jacob and Emily could not have their “bridal shower” in the back yard (possibly 1115 South Third Street, although not alleged) on an undisclosed date, id. ¶ 63, and that they no longer lived with Jacob’s parents at 1115 South Third Street after August 2015, id. ¶ 9, do not give standing to these individuals to bring the various tort claims alleged. For this reason alone Counts V and VI should be dismissed as to Jacob and Emily Liebhart. Alternatively, if the Court determines that these individuals have alleged the requisite ownership, dominion, or title to the property, the claims of William and Nancy Liebhart with regard to a particular property should be diminished accordingly. Moreover, to state a claim for negligence or negligent infliction of emotional distress with regard to one or more of the four properties referenced in the Complaint, each plaintiff must separately allege that a breach of duty by defendants proximately caused him/her injury or damage. Rockweit v. Senecal, 541 N.W.2d 742, 747 (Wis. 1995) (plaintiff must prove four elements: a duty of care on the part of the defendant; a breach of that duty; a causal connection between the conduct and the injury; and an actual loss or damage as a result of the injury); Bowen, supra (the elements of a claim for negligent infliction of emotional distress include conduct below the applicable standard of care; injury suffered by the plaintiff, and that the Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 28 of 30 - 27 - defendant’s conduct was a cause-in-fact of such injury); Camp, 721 N.W.2d at 151 (“plaintiff’s claim satisfy the elements of negligent conduct, causation and injury (severe emotional distress) ....”). A claim for “strict liability” for abnormally dangerous activities similarly requires that plaintiff allege the amount of actual harm to determine recoverable damages. Fortier v. Flambeau Plastics Co., 476 N.W.2d 593, 605 (Wis. Ct. App. 1991). Jacob and Emily Liebhart have not alleged all of these elements, certainly not as to 1113, 1117, and 1129 South Third Street which purportedly relate to claims brought by William and Nancy Liebhart. Moreover, the allegation as to 1115 South Third Street fails to associate any damages specifically to Jacob or Emily Liebhart but rather, again, lumps all of the Liebharts together.10 To the extent one or more of the tort claims remains as to Jacob and Emily Liebhart, such claim should be limited to a property, if any, for which such individual plaintiff alleges he/she suffered an injury that was caused by a duty of cared owed to him/her, as opposed merely to Jacob’s parents, and that (s)he has proper standing as a plaintiff to bring such a claim (e.g. “strict liability” (Count III), “negligence” (Count IV), “trespass” (Count V), “nuisance” (Count VI)). Count VIII merely recites a request for relief, not a substantive stand-alone claim, and it, too, should be dismissed for the reasons set forth as to the other claims. CONCLUSION For the foregoing reasons, Defendant SPX respectfully requests that this Court dismiss Counts I, II, III, and VII of plaintiffs’ Complaint in their entirety and with prejudice. The tort claims of Jacob and Emily Liebhart should be dismissed for the additional reason that these 10 Although the Complaint lumps Jacob and Emily Liebhart with the other plaintiffs in vague and ambiguous allegations that “the Liebharts’ [sic] became very concerned and anxious,” id. ¶ 63, and “worries [by family members] that their health was impaired,” id. ¶ 64, the Complaint is devoid of any allegation of physical harm or ailment as to Emily Liebhart. For this additional reason, all claims as to Emily Liebhart should be dismissed for failure to state a claim. Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 29 of 30 - 28 - plaintiffs have no standing to bring claims with regard to the properties that are owned by William and Nancy Liebhart and for which William and Nancy Liebhart seek redress in this lawsuit. In particular, the trespass and nuisance claims (Counts V and VI, respectively) should be dismissed as to Jacob and Emily Liebhart in their entirety and with prejudice. Further, any tort claim for which Jacob and Emily do not allege the elements of the tort, separate and apart from the allegations of the other plaintiffs, should be dismissed or, at a minimum, limited to a property, if any, that has a sufficient nexus to plaintiffs to properly state a claim. Dated: January 17, 2017 Respectfully submitted, QUARLES & BRADY LLP /s Matthew J. Splitek Matthew Splitek (SBN 1045592) 33 East Main Street, Suite 900 Madison, WI 53703 (608) 283-2454 / fax: (608) 294-4914 matthew.splitek@quarles.com and NIXON PEABODY LLP Joseph J. Ortego (pro hac) Vivian M. Quinn (pro hac) 437 Madison Avenue New York, New York 10022-7039 (212) 940-3000 / fax: (866) 947-2079 jortego@nixonpeabody.com vquinn@nixonpeabody.com Attorneys for Defendant SPX Corporation Case: 3:16-cv-00700-jdp Document #: 36 Filed: 01/17/17 Page 30 of 30