Citations
- 91 F. Supp. 3d 940
Full opinion text
OPINION & ORDER
ALGENON L. MARBLEY, District Judge.
I. INTRODUCTION
This matter is before the Court on the Parties’ Cross-Motions for Summary Judgment. Little Hocking Water Association, Inc. (“Little Hocking” or “Plaintiff’) seeks partial summary judgment on its Trespass (Count IV) and Conversion (Count VI) claims against E.I. du Pont Nemours and Company (“DuPont” or “Defendant”). (Doc. 345). Defendant opposes, and moves for summary judgment on all of Plaintiffs claims (Counts I — VIII), including: Imminent and Substantial Endangerment under Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972; Public and Private Nuisance; Negligence; Trespass; Abnormally Dangerous or Ultrahazardous Activity; Conversion; Unjust Enrichment; and, Declaratory Judgment for Indemnity. (Doc. 346). For the reasons stated below, Defendant’s Motion is GRANTED in part and DENIED in part, and Plaintiffs Motion is GRANTED.
II. BACKGROUND
A. Factual History
Plaintiff brings this action under RCRA, 42 U.S.C. § 6972(a)(1)(B), and Ohio common law and statutory law, claiming Defendant’s waste disposal practices have caused imminent and substantial harm to health and the environment, and caused it tort-related injuries. Plaintiff is a nonprofit public water provider whose business is to provide potable water to approximately 12,000 people in ten different townships in southeast Ohio. Defendant owns and operates the Washington Works Facility (the “Facility”) in West Virginia, approximately 1,300 feet down river from Plaintiffs Wellfield.
Little Hocking alleges that its Wellfield, which consist of approximately forty-five (45) acres of land as well as the soil and groundwater beneath the land, have been contaminated by DuPont. (Doc. 23). The alleged hazardous wastes are PFOA (per-fluorooctanoic acid), otherwise known as C8, and other PFCs (perfluorinated compounds), which have shorter and longer carbon chains than C8 but have similar properties. These allegedly hazardous wastes are used in the manufacture of Defendant’s Teflon® related products. Defendant has used C8 in its manufacturing processes from 1951 until it was phased out completely in June 2013. Defendant does not contest the fact that it released C8, or the amount of C8 it released. Nor does it contest that it released C8 via air emissions, water disposal, and at sites near or on the Facility.
1. Defendant’s Knowledge of C8 in Environment and its Health Effects
By 1981, DuPont was studying the dangers of C8 exposures posed to its employees, and since 1982, its Medical Director, Dr. Karrh, had recommended reducing emissions for health reasons. (Doc. 345-6; Doc. 345-7). Throughout the 1980s DuPont set goals for reducing off-site air and river releases of C8 because it “accumulates in the blood and [ ] the future is unknown.” (Doc. 345-10). DuPont acknowledged that the legal and medical departments would most likely take a position of total elimination. Id. In 1984, DuPont detected C8 in the Little Hocking Water supply at .8 ppb. (Doc. 345-11). Defendant dumped 150,000 pounds of C8 into the Ohio River from 1980 to 1989, and 330,000 pounds from 1990 to 1999, thereby showing that they doubled emissions into the environment in the 1990s. (Doc. 345-5, Nos.16-17).
DuPont purchased the C8-contaminated Lubeck Public Service District property in 1991. In 1987, an internal memo recommended that DuPont make this purchase, even though other potential properties were less expensive, because any price difference would be justified by “elimination of the use of these wells as a source of public drinking water.” (Doc. 345-15).
Further, emails from DuPont’s in-house counsel, John Bowman and Bernard Reilly, indicate that as of 2000 they had been attempting to get Defendant to take action on C8 releases since the 1990s. (Docs. 345-16, 17). In a 2000 email, Bowman states that “Bernie and I have been unsuccessful in even engaging the clients in any meaningful discussion of the subject [of C8 emissions] ... we continued to increase our emissions into the river in spite of internal commitments to reduce or eliminate the release of this chemical into the community and the environment because of our concern about the biopersistence of this chemical.” With respect to the same subject, Reilley states in 2001: “[t]he business did not want to deal with this issue in the 1990s, and now it is in their face, and some are still clueless. Very poor leadership....”
Defendant states that is has been trying to phase out C8 and recapture it since the 1988, and that it has spent more than fifteen million dollars in these efforts.
2. EPA Administrative Orders on Consent and the GAC
C8 is biopersistent and can remain in the environment for hundreds if not thousands of years. In 2011 and 2012, a panel approved by DuPont in relation to other litigation, found “probable links” between exposure to C8 and six human diseases. Some studies analyzing the effects of C8 exposure in animals show it causes adverse health effects.
In 2002, DuPont met with representatives of Little Hocking to notify them of the presence of C8 in its water supply. In March 2002, DuPont entered into an agreement with the United States Environmental' Protection Agency (“USEPA”) whereby DuPont agreed to provide alternate drinking water for any public drinking water source, including Little Hocking, with C8 contamination levels greater than 14 parts per billion (“ppb”), a risk-based health protective screening level.
In January 2004, DuPont presented Little Hocking with the offer to build a granular activated carbon filtration (“GAC”) Facility to treat its water. Plaintiff was reluctant to accept this option, as it preferred a total clean-up of its Wellfield. Eventually, Plaintiff consented. Thus, since late 2007, water from the Wellfield is pumped to the Facility — -which is on land purchased by DuPont because the Well-field was not suitable for such a Facility— and back to the Wellfield to be distributed to customers.
In 2006, DuPont signed an Administrative Order on Consent (“AOC”) with the USEPA. In the 2006 AOC, the EPA determined that pursuant to the Safe Drinking Water Act, and for the purposes of the AOC:
C-8 is a contaminant present in or likely to enter a [public water system] or a [underground source of drinking water] which may present an imminent and substantial endangerment to human health at concentrations at or above .50 ppb in drinking water. EPA has based this determination on its interpretation of animal and human studies, and on the results of environmental sampling and monitoring in the vicinity of the Facility. The .5 ppb action level is a precautionary level to reduce exposure to the population living in the vicinity of the Facility.
(Doc. 346 at ¶ 32). Then, in 2009, the USEPA issued a second AOC, requiring Defendants to reduce the C8 water levels to .4 ppb. Thus, pursuant to the AOC, Defendant is bound to operate and maintain the GAC water treatment plant indefinitely until C8 water levels are below 0.4 ppb. The GAC has reduced the C8 in Little Hocking’s water to undetectable levels.
3. C8 Pathways
Defendant does not contest the fact that it released C8 or the amount of C8 it released. Defendant does contest whether multiple pathways of migration of C8 from the Facility to the Wellfield exist. In its own field investigation of the Wellfield conducted pursuant to the AOC, Defendant states that “revised groundwater modeling by DuPont supports the previous conclusion that no current groundwater migration pathway exists beneath the Ohio River to the Little Hocking Well Field.”
It concluded that the only possible pathway of C8 was that it was transported via air emissions from DuPont’s stacks by wind, and was deposited on Little Hocking’s Wellfield vegetation and surface soils. Then, precipitation and possible flooding leaches the C8 downward through the unsaturated zone through the aquifer, and that groundwater containing C8 is pumped from the aquifer through the production wells.
Plaintiffs expert, Dr. Franklin Schwartz, a hydrogeologist at Ohio State University, states there is a water pathway from' the contaminated soil surrounding the plant, to the Ohio River, and finally to the Little Hocking Wellfield. (Doc. 370-1). Schwartz states that C8, released from various sources at the Facility directly into the Ohio River, enters the River as a dissolved phase, and then is captured by wells at Little Hocking as induced infiltration of river water through sediments at the river bottom. He calls this water pathway the “River Pathway.” In addition, Plaintiffs expert, Dr. Staci Simonich, opines that unless remediated, C8 released by the Facility that has sorbed to the River’s sediment will act as an ongoing source of C8 into the River Pathway and to the Little Hocking Wellfield. (Doc. 369-15 at 183-5, 338-341).
4. Alleged Harm to Plaintiff and its Wellfield as a Result of C8 Contamination
First, Plaintiff states that it ceased expansion projects due to C8 contamination. The first was a five-year plan, originally drafted in 1995, which includes the blueprint for three projects to expand its water supply to three areas — Decatur Township 250, Barlow Township 261, and Palmer Square. Further, Plaintiff alleges that its plans to drill a new production well were hindered because of the presence of C8. The Plaintiff purchased the land in 1985, and, has considered adding the well since 1987. Additionally, Little Hocking avers that it has lost $900,000 in revenue due to these lost opportunities to expand its customer base. For instance, due to the delay in the Palmer Project, a neighboring water district has already provided water to the Palmer Square area. (Doc. 370-20 at 800).
In addition, Plaintiff states that while it has not “lost profits” due to loss of use of the Wellfield, it has suffered a decrease in revenue due to reduced user demand and a decrease in the rate of growth of new taps due to C8 contamination. (Doc. 370-23 at ¶ 9). For example, during the two year bottled water program, Plaintiff states 83% of its user base stopped purchasing its water for cooking and drinking. Id.
Plaintiff states that it shut down Well Number Five in 2001 because it had the highest levels of C8. Well Five was only used sparingly or intermittently because of high levels of iron and manganese and only accounted for 2% of the total well pumping usage for 2001. Griffin states “five was there when we needed it. There are times when one of the other wells may be down out of service for some reason and we would have to use five in conjunction.”
Plaintiff also states that the presence of the C8 and the GAC interferes with Plaintiffs business operations and costs it money. Little Hocking’s General Manager, Bob Griffin, learned of the presence of C8 in its Wellfields in 2002. Since that time, Griffin’s professional life has been “consumed” with the issue and he has worked continuously with agencies regarding the contamination. Plaintiff states that it has monetized its costs for hiring consultants, conducting testing, and diverting personnel all in furtherance of restoring the Well-field. Further, Plaintiff states that prior to the C8 contamination, its water did not require treatment, other than the Ohio-mandated addition of chlorine and fluoride. (Doe. 345-1 at ¶ 49). Now, the contamination causes it to do biweekly testing for contamination, forces it to have all maintenance approved by DuPont, and forces it to comply with new regulatory requirements.
Lastly, Plaintiff states that C8 harms the environment on the Wellfield and beyond. Dr. Kannan, an eco-toxicologist and expert of C8, collected samples and tested soil, leaves, grass, and earthworms on the Wellfield. (Doc. 369-25A). He found high concentrations of C8 in all of the tests and samples. Id. Similarly, Plaintiffs expert, Dr. Peden-Adams, an environmental toxo-ligist, opines that high levels of C8 found in plants and animals in Wellfield will move through the food chain and may be accumulating in species with deleterious effects for a number of species. (Docs. 370-29, 367-27).
B. Procedural Background
Plaintiff filed the first complaint on November 27, 2009, and an amended complaint on March 15, 2010. After nearly five years of discovery, both parties filed cross-motions for summary judgment. Plaintiff filed a Motion for Partial Summary Judgment on its trespass and conversion claims, (Doc. 345), and Defendant filed a Motion for Summary Judgment on all of Plaintiffs claims. (Doc. 346). Both motions have been fully briefed, and are ripe for review.
III. Standard
Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” A fact is deemed material only if it “might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir.1993) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505). In evaluating such a motion, the evidence must be viewed in the light most favorable to the nonmoving party. United States S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir.2013). The court reviewing a summary judgment motion need not search the record in an effort to establish the lack of genuinely disputed material facts, however. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404 (6th Cir.1992). Rather, the burden is on the nonmoving party to present affirmative evidence to defeat a properly supported motion, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989), and to designate specific facts that are in dispute. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; Guarino, 980 F.2d at 404-05.
To survive the motion, the nonmoving party must present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir.1993). The mere existence of a scintilla of evidence in support of the opposing party’s position will be insufficient to survive the motion; there must be evidence on which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251, 106 S.Ct. 2505; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995); see also Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir.1992) (finding that the suggestion of a mere possibility of a factual dispute is insufficient to defeat a motion for summary judgment) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)).
IV. Analysis
A. RCRA, 42 U.S.C. § 6972(a)(1)(B)— Count I
The Resource Conservation and Recovery Act (“RCRA”) “is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). RCRA’s primary purpose is not “to effectuate the cleanup of toxic waste sites” but, rather, “to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.’ 42 U.S.C. § 6902(b).” Id. While “[e]hief responsibility for the implementation and enforcement of RCRA rests with the Administrator of the Environmental Protection Agency (EPA), see §§ 6928, 6973,” like other environmental protection laws, “RCRA contains a citizen suit provision, § 6972, which permits private citizens to enforce its provisions in some circumstances.” Id.
The citizen suit provision of RCRA states, in pertinent part, that any person may commence a civil action on his own behalf:
against any person ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal Facility, 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
In sum, for a citizen plaintiff to prevail on a claim under the “imminent and substantial endangerment provision” (“ISE”), the plaintiff must prove:
(1) that the defendant is a person, including, but not limited to, one who was or is a generator or transporter of solid or hazardous waste or one who was or is an owner or operator of a solid or hazardous waste treatment, storage, or disposal Facility; (2) that the defendant has contributed to or is contributing to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and (3) that the solid or hazardous waste may present an imminent and substantial endangerment to health or the environment.
Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1014-15 (11th Cir.2004) (quoting Cox v. City of Dallas, 256 F.3d 281, 292 (5th Cir.2001); see 42 U.S.C. § 6972(a)(1)(B)).
Unlike § 6972(a)(1)(A), the provision concerning EPA prosecution of violations of RCRA, the ISE citizen provision, “explicitly considers the environmental and health effects of waste disposal and authorizes suit any time there is an ‘imminent and substantial endangerment to health or the environment.’ ” Parker, 386 F.3d at 1014. The Supreme Court has clarified that “[t]he section applies retroactively to past violations, so long as those violations are a present threat to health or the environment.” Meghrig, 516 U.S. at 485-86, 116 S.Ct. 1251 (1996) (holding that the imminence standard does not require an existing harm, meaning ongoing disposal of a solid or hazardous waste, but the threat of harm due to disposal in the past of solid or hazardous waste must be present and ongoing).
When analyzing the remedies available to private citizens under RCRA, the Supreme Court held that “under a plain reading of this remedial scheme, a private citizen suing under § 6972(a)(1)(B) could seek a mandatory injunction, ie., one that orders a responsible party to ‘take action’ by attending to the cleanup and proper disposal of toxic waste.” 516 U.S. at 484, 116 S.Ct. 1251. Accordingly, courts have consistently held that “[t]he ‘endangerment’ provision in RCRA Section 7003(a) is one of the statute’s most important enforcement tools, and it is intended to ‘give broad authority to the courts to grant all relief necessary to ensure complete protection of the public health and the environment.’ ” United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1383 (8th Cir.1989); see also United States v. Waste Indus., Inc., 734 F.2d 159, 167 (4th Cir.1984) (“Section 7003 is a congressional mandate that the former common law of nuisance, as applied to situations in which a risk of harm from solid or hazardous waste exists, shall include new terms and concepts which shall be developed in a liberal, not a restrictive, manner.”); United States v. Price, 688 F.2d 204, 211 (3d Cir.1982) (“By enacting the endangerment provisions of RCRA ... Congress sought to invoke the broad and flexible equity powers of the federal courts.... ”).
Little Hocking seeks an injunction pursuant to § 6972(a)(1)(B), the imminent and substantial endangerment (“ISE”) provision requiring a cleanup of its Wellfleld contaminated by C8, and an investigation into the continued sources of C8 contamination, such as Ohio River sediment, which are present in the surrounding environment due to Defendant’s past C8-disposal practices. (Doc. 369 at 28).
Defendant argues that it is entitled to summary judgment -on Plaintiffs ISE claim because Plaintiff: (1) lacks standing; (2) failed to meet the notice requirements of an ISE claim; (3) is barred by the case Baker v. Chevron USA, Inc., No. 1:05-CV-227, 2011 WL 3652249 (S.D.Ohio Aug. 19, 2011) aff'd sub nom. Baker v. Chevron U.S.A. Inc., 533 Fed.Appx. 509 (6th Cir.2013); and (4) fails to meet all three prongs of the ISE standard. The Court will take each argument in turn.
1. Standing
When determining whether a Plaintiff has standing to pursue a claim under RCRA’s ISE provision, courts apply nothing more than the traditional Article III analysis. See Maine People’s Alliance And Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir.2006) (finding “there is nothing in RCRA’s text or history that suggests a congressional intent to erect statutory standing barriers beyond those imposed by Article III of the Constitution ... ”); see also Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 254-55 (3d Cir.2005); Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1003 (11th Cir.2004). Thus, courts apply the “familiar three-part algorithm: a would-be plaintiff must demonstrate a concrete and particularized injury in fact, a causal connection that permits tracing the claimed injury to the defendant’s actions, and a likelihood that prevailing in the action will afford some redress for the injury.” Maine People’s Alliance And Natural Res. Def. Council, 471 F.3d at 283. “Laidlaw, the Supreme Court’s most recent explication of the injury-in-fact requirement in litigation arising under the federal environmental laws, instructs that courts may not ‘raise the standing hurdle higher than the necessary showing for success on the merits in an action.’ ” Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 255 (3d Cir.2005) (quoting Friends of Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145. L.Ed.2d 610 (2000)).
Defendant argues that in light of the fact that C8 is being removed from the drinking water by the GÁC Facility, Little Hocking would only be entitled to a remedy under the ISE provision for C8 contamination that may pose an imminent and substantial endangerment to the environment. Defendant further argues that insofar as the injury is an environmental risk linked to contamination of the Wellfield, Little Hocking lacks standing because it is not an environmental organization, and thus environmental cleanup is not germane to its organizational purpose. Instead, Little Hocking is an association whose sole purpose is to provide potable water to its customers. With the GAC in place, therefore, Defendant asserts that Little Hocking is not experiencing an injury germane to its purpose, and, thus, no injury at all.
Plaintiff responds that it does not seek associational standing on behalf of its members, consumers of its water. Instead, Plaintiff argues that according to Article III jurisprudence, “[Unquestionably, an association may have standing to assert an injury to itself regardless of whether its members also have standing.” Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 544 (6th Cir.2004) (citing Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (“There is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and' immunities the association itself may enjoy.”)); accord U.S. Student Ass’n Found. v. Land, No. 08-CV-14019, 2010 WL 1131493, at *2 (E.D.Mich. Mar. 23, 2010).
Plaintiff argues that contamination of its own Wellfield is an injury-in-fact to itself, which can be redressed under the RCRA ISE provision allowing for injunctive relief upon the showing that such contamination may present an imminent and substantial endangerment to health and the environment. Plaintiff claims it is entitled to relief under the ISE provision in the form of a clean-up of C8 on its land and an investigation into sources of contamination. Plaintiff argues that this case is similar to the case Parker v. Scrap Metal Processors, Inc., which found injury in fact under RCRA based upon evidence demonstrating that potentially hazardous material from defendant’s landfill had entered plaintiffs property, causing soil contamination. 386 F.3d 993, 1003 (11th Cir.2004). Thus, Little Hocking argues that this Court should follow Parker and hold that evidence showing contamination of the environment on Little Hocking’s Wellfield, which undeniably is traceable to Defendant, is sufficient evidence showing causation, redressability, and injury-in-fact.
This Court finds that an individual person or company can establish standing to pursue a citizen’s suit under RCRA by alleging injury-in-fact due to the presence of contamination on its property, traceable to the Defendant, which may cause substantial and imminent harm to health or the environment. See Parker, 386 F.3d 993, 1003 (clear finding of standing in RCRA case for waste on private property); accord Pilot Oil, LLC v. BP Products N. Am., Inc., 907 F.Supp.2d 955 (E.D.Wis.2012) (standing assumed in case involving RCRA case for disposal practices leading to contamination of private property). This holding is consistent with the Supreme Court’s decision in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., which considered whether an environmental organization had standing to enforce a National Pollutant Discharge Elimination System (“NPDES”) permit in a citizen suit under the Clean Water Act. 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (U.S.2000). In Laidlaw, the Court rejected Defendant’s argument that the plaintiff organization lacked standing from the outset to seek injunctive relief because the plaintiff organization failed to show during trial that the Clean Water Act permit violations resulted in any health risk or environmental harm. Id. at 181, 120 S.Ct. 693. The Court rejected this argument, explaining:
[t]he relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff. To insist upon the former rather than the latter as part of the standing inquiry ... is to raise the standing hurdle higher than the necessary showing for success on the merits in an action alleging noncompliance with an NPDES permit.
Id. at 169, 120 S.Ct. 693.
The Laidlaw Court then determined that by “[fjocusing properly on injury to the plaintiff,” the district court had found sufficient injury to establish standing. Id. at 181-82, 120 S.Ct. 693. In terms of injury to plaintiffs members, the Laidlaw Court noted that members complained that they refrained from engaging in activities near or in the river for fear of defendant’s contamination of it. Id. at 182, 120 S.Ct. 693. Further, the Court noted one member stated that her home near the river and Facility had a lower value than similar homes, and that she believed the pollutant discharges accounted for some discrepancy. Id. at 182-183, 120 S.Ct. 693. In sum, the Laidlaw Court determined that proof that the contamination actually harmed the environment was not required by Article III to establish standing; instead, it was enough that evidence that the defendant’s “discharges, and the affiant members’ reasonable concerns about the effects of those discharges, directly affected those affiants’ recreational, aesthetic, and economic interests.” Id. at 183-84, 120 S.Ct. 693.
In the case sub judice, Plaintiff has reasonable concerns about the effects on human health and the environment related to Defendant’s admitted discharges of C8 onto Plaintiffs Wellfield. Further, Plaintiffs concerns about those discharges affect its economic interests in land ownership and in running its business, providing potable water. A diminished use of its land and the aquifer beneath it “out of a reasonable fear and concern of pollution ... constitutes an injury in fact that may be redressed.” Maine People’s Alliance v. HoltraChem Manufacturing Co., LLC, 211 F.Supp.2d 237, 254 (D.Me.2002) (citing Laidlaw, 528 U.S. at 181-84, 120 S.Ct. 693); see also Interfaith Cmty. Org., 399 F.3d at 257-58 (3d Cir.2005) (finding injury in fact in a RCRA claim in which individual plaintiffs showed “direct and present concerns, neither general nor unreasonable,” regarding polluted site). While in order to receive relief under RCRA the Plaintiff must show that Defendant’s past disposal of C8 on Plaintiffs Wellfield may present an imminent and substantial endangerment to human health or the’ environment, the only injury it must show for purposes of standing to bring a RCRA ISE claim is evidence that the defendant’s discharges, and Little Hocking’s reasonable concerns about the effects of those discharges, directly affected its economic interests in running a water distribution Facility. If this Court or a jury finds that Defendant is liable under RCRA for the environmental contamination of Plaintiffs Wellfield, then Plaintiffs injury may be redressed through injunctive relief.
2. Notice
Defendant argues that this Court lacks subject matter jurisdiction over Count I because Plaintiff failed to meet mandatory pre-filing notice requirements under 42 U.S.C.A. § 6972(b)(1)(A) in order to make a claim under § 6972(a)(1)(A) for violations of RCRA. See Sierra Club Ohio Chapter v. City of Columbus, 282 F.Supp.2d 756, 763 (S.D.Ohio 2003) (Marb-ley, J) (holding notice provision in RCRA and Clean Water Act are virtually identical, and citizen’s notice to violators under either act must strictly comply with statutory notice requirements). Specifically, Defendant argues that Plaintiff failed to provide notice to the West Virginia EPA region — where any potential RCRA violations could have occurred — in violation of § 6972(b)(1)(A). Defendant does not allege that Plaintiff failed to comply with notice requirements under § 6972(b)(2)(A), necessary to pursue an ISE citizen’s suit under § 6972(a)(1)(B). Rather, Defendant avers that insofar as Plaintiff alleges violations of RCRA under § 6972(a)(1)(A), and failed to comply with the corresponding § 6972(b)(1)(A) notice provision, the entire notice is faulty, including notice of the ISE claim. Defendant does not cite case law for this specific proposition.
Plaintiff responds that Little Hocking is not alleging RCRA regulatory violations occurring at the Plant in West Virginia under § 6972(a)(1)(A). It states its notice letter identified the ISE provision, § 6972(a)(1)(B), as the only basis of its RCRA suit. (Notice Letter, Doc. 37016). While the notice does state that it is served pursuant both to § 6972(b)(1)(A) and (b)(2)(A), the relevant question is whether Plaintiff seeks relief under § 6972(a)(1)(B), and § 6972(a)(1)(A). Here, Plaintiff states unequivocally that it only seeks relief under § 6972(a)(1)(B), and that its use of the word “violation” refers to violations of the ISE provision.
Accordingly, the Court finds Defendant’s argument without merit. This Court adds, however, that it will not consider an argument under Count I unless it unambiguously relates to a claim for relief under § 6972(a)(1)(B).
3. Whether the Court Lacks Jurisdiction over Remediation at the Well-field Based on the 2009 AOC and Baker v. Chevron
Next, Defendant argues that according to Baker v. Chevron, this Court lacks subject matter jurisdiction over any additional remediation efforts it might order pursuant to § 6972(a)(1)(B). 2011 WL 3652249. In Baker, Plaintiffs brought common law claims for property damage as a result of Defendant’s alleged negligence in releasing contaminants into the groundwater. Nearly twenty years prior to the case, the Defendant and the EPA entered into a “comprehensive consent order” which' included a “comprehensive remediation plan” to capture groundwater contamination. Id. at *11-12. Plaintiffs argued that in order to remediate fully the contamination, defendant should be taking steps and actions beyond what the EPA consent order required. The Baker court responded that because:
the consent decree has been approved and entered, and the remediation is ongoing, the Court, does not have jurisdiction to either require Chevron to implement specific remediation projects . or impose liability on Chevron for things Plaintiffs think Chevron should have done — like drill additional monitoring wells. See, e.g., United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1454-55 (6th Cir.1991) (“[Ojnce the consent decree is entered by a federal court — giving the decree the force of law — alternative state remedies may not be pursued.”) (CERCLA).
Id. at *12.
This Court finds that neither Baker, nor the case it relies on, Akzo, preclude this Court’s jurisdiction over Plaintiffs § 6972(a)(1)(B) claim. Both cases unambiguously state that once a consent decree is entered by a federal court to remediate a specific environmental harm, a plaintiff may not pursue state law claims, either common or statutory, for further remediation of the same harm. Issues of federal preemption underlie the holdings in both cases. In the case sub judice, in contrast, Plaintiff seeks remediation beyond administrative consent orders, not federal court orders, and seeks remediation under federal, not state law.
Citizen suits,. like those pursuant to § 6972(a)(1)(B), typically “function as a form of statutory enforcement in addition to, or in conjunction with, enforcement by an administrative agency or other governmental entity.” Esso Standard Oil Co. (Puerto Rico) v. Rodriguez-Perez, 455 F.3d 1, 6 (1st Cir.2006), as amended on denial of reh’g (July 28, 2006). In addition, no other statutory preclusion provision under § 6972(b)(2)(A)-(C) applies to this RCRA citizen suit. Defendant does not contest this. In fact, even when EPA consent orders pursuant to CERCLA are in place, courts in this Circuit and elsewhere have found that such consent orders do not preclude citizen suits under RCRA, where the consent order did not remediate all of the harm. Organic Chems. Site PRP Grp. v. Total Petroleum, Inc., 6 F.Supp.2d 660, 665 (W.D.Mich.1998) (denying motion to dismiss RCRA citizen suit for cleanup of soil contamination where plaintiff alleged EPA had taken action only with respect to groundwater contamination); A-C Reorg. Trust v. E.I. DuPont de Nemours & Co., 968 F.Supp. 423, 430-31 (E.D.Wis.1997) (holding RCRA claim regarding groundwater contamination not futile where EPA consent order only expressly covered surface contamination and might not extend to groundwater). In sum, this court does not lack jurisdiction over this RCRA action based on the 2009 AOC and Baker v. Chevron.
4. Whether Plaintiff is Entitled to Relief under 42 U.S.C. § 6972(a)(1)(B)
The citizen suit provision of RCRA states, in pertinent part, that any person may commence a civil action on his own behalf:
against any person ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal Facility, 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
42 U.S.C. § 6972(a)(1)(B). Plaintiff argues that Defendant is a past generator of C8 who has contributed to the disposal of C8 via air pathways and water pathways, and that C8 is a solid or hazardous waste which presents an imminent and substantial endangerment to health or the environment. Plaintiff seeks redress for past generation of C8, including a cleanup of its Wellfield and an investigation into whether river soil deposits of C8 from Defendant’s prior disposal of C8 may be a continuous source of contamination to the Wellfield. This Court will address Plaintiffs entitlement to relief under the ISE provision for Defendant’s past generation of C8 only insofar as that relief relates to an injury-in-fact to the Defendant and not an injury to the Little Hocking community as a whole.
Defendant’s first argument is that Plaintiff cannot meet the ISE standard because it cannot show Defendant disposed of a solid or hazardous waste. As the statute defines a hazardous waste as a subset of solid waste, the Court must determine whether Defendant disposed . of solid waste. United States v. Sims Bros. Const., 277 F.3d 734, 740 (5th Cir.2001) (“Under RCRA, for waste to be hazardous it must be ‘solid waste.’ ”).
Defendant’s second argument is that even if the Court finds Defendant disposed of a solid waste, Plaintiff cannot meet the ISE standard because such disposal does not present an imminent and substantial endangerment to health or the environment.
a. Disposal of a Solid Waste
Defendant contends that Plaintiffs claim is beyond RCRA’s remedial reach because Defendant did not dispose of solid waste within the meaning of the statute. While both parties concede that C8 'reached the Wellfíeld via air pathways, the parties dispute whether C8 reached and continues to reach the Wellfíeld via water pathways.
i. Via Water
Defendant argues that Plaintiff is not entitled to remedial relief for any of the C8 on its property due to Defendant’s disposal of C8 via water pathways for three reasons: (1) Plaintiff has failed to establish a water pathway whereby C8 traveled by water into Little Hocking’s Wellfíeld; (2) any claims based on discharges from point sources covered by Clean Water- Act (“CWA”) National Pollutant Discharge Elimination System (“NPDES”) permits are shielded from liability under the CWA, and thus a finding of liability under RCRA for the same discharges would be in conflict with CWA, which is not permitted under RCRA; and (3) C8 allegedly disposed of via water pathways is not a solid' waste because discharges from point sources covered under Clean Water Act NPDES permits are excluded from the definition of solid waste under RCRA.
(1). Whether Plaintiff Has Failed to Establish a Water Pathway
Plaintiff states that Defendant disposed of C8 via the Ohio River, and that C8 continues to enter the Ohio River via seeps from DuPont’s adjacent landfill and C8-contaminated soil at the Plant. Further, Plaintiff argues that according to its expert witness, Dr. Franklin Schwartz, a hydrogeologist at Ohio State University, there is a water pathway from the contaminated soil surrounding the plant, to the Ohio River, and finally to the Little Hocking Wellfield. (Declaration of Dr. Schwartz, Doc. 370-1). Schwartz states that C8 released from various sources at the Plant enters the Ohio River as a dissolved phase, and is captured by induced infiltration by Little Hocking’s wells. Id. at ¶ 17. He explains that Little Hocking’s wells are sited and designed to draw in river water. Id. Unless these soil pathways to the Ohio River are investigated and then remediated, Plaintiff argues, C8 will continue to contaminate its Wellfield. In addition, Plaintiffs expert, Dr. Staci Simonich, opines that unless remediated, C8 released by the Plant that has sorbed to the River’s sediment will act as an ongoing source of C8 into the River Pathway and to the Little Hocking Wellfield. (Deposition of Simonich, Doc. 369-15 at 183-5, 338-341).
Defendant retorts that neither Dr. Simo-nich nor Dr. Schwartz has established a groundwater or river pathway of C8 to the Little Hocking Wellfield. As to Dr. Simo-nich, Defendant argues that she has failed to establish a scientifically valid estimate of the C8 in the sediment within Little Hocking’s capture zone. As to Dr. Schwartz, Defendant argues he is unable to identify the size, shape, or location of the river water capture zones of the four Little Hocking wells or how far he thinks the capture zones extend. Without a scientifically valid and reliably identified capture zone, Defendant contends, Plaintiff has not met its burden of showing a past or present water pathway of exposure.
Viewing Plaintiffs expert testimony in the light most favorable to Plaintiff, this Court finds the Plaintiff has raised genuine issues of material fact concerning the existence of a water pathway from the Ohio River to the Little Hocking Wellfield. Additionally, the Plaintiff has established a genuine issue of material fact concerning whether the river pathway is a continuing source of contamination to the Wellfield due to contaminated river sediment. Defendant’s assertion that Dr. Schwartz cannot identify the exact size, shape, and location of the capture zone does not nullify the assertion that one exists. Similarly, Defendant’s assertion that Dr. Simonich has not identified the exact quantity of C8 in the river sediment does not undermine her assertion that it exists.
(2). Conflicts with the Clean Water Act
Defendant argues that Plaintiff cannot show Defendant “disposed” of a “solid or hazardous waste” via industrial discharges which are point sources because under RCRA, industrial discharges from point sources subject regulation under section 402 of the CWA are excluded from the definition of “solid waste.” Under RCRA § 6903(27), the term “solid waste” is defined as:
any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control Facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 1342 of Title 33 ...
(emphasis added).
In addition, the regulation interpreting § 6903(27) states that the following are not solid waste for the purposes of RCRA:
(2) Industrial wastewater discharges that are point source discharges subject to regulation under section 402 of the Clean Water Act, as amended. [Comment: This exclusion applies only to the actual point source discharge. It does not exclude industrial wastewaters while they are being collected, stored or treated before discharge, nor does' it exclude sludges that are generated by industrial wastewater treatment.]
40 C.F.R. § 261.4. Section 402 of the CWA establishes the NPDES permit program to regulate point source discharges of pollutants into navigable waters of the United States.
Plaintiff responds that since DuPont’s NPDES permits do not include C8, discharges of C8 via point sources are not excluded from the definition of solid waste under RCRA § 6903(27). This Court disagrees. The text of RCRA § 6903(27) and 40 C.F.R. § 261.4 state unambiguously that all point source discharges subject to regulation under section 402 of the CWA, regardless of whether there is a permit in place, cannot be considered solid waste under RCRA. See Inland Steel Co. v. E.P.A., 901 F.2d 1419, 1422 (7th Cir.1990) (finding the exemption from the definition of solid waste under RCRA § 6903(27) “is for discharges subject to the permit requirements of section 402 of the Clean Water Act, not for possession of a permit as such.”). This Court concludes, therefore, that regardless of the content of the discharge and whether every substance released in the discharge is regulated under Section 402 of the CWA, such discharges in their entirety are not solid waste under RCRA if they are subject to the CWA NPDES permit scheme.
Plaintiff also argues that some of DuPont’s continuing releases of C8 into the Ohio River are not from point sources and thus fall outside of the CWA NPDES permitting scheme. The first alleged source of contamination is C8 from the highly-contaminated “perched zone” underneath the Riverbank Landfill and from anaerobic digestion ponds. To support this contention, Plaintiff cites to test results showing the presence of C8 in these two locations, which the EPA obtained pursuant to a Memorandum of Understanding it entered into with DuPont to conduct environmental monitoring of C8 and its effects on the environment. Further, Plaintiffs expert describes how C8 seeps from the Defendant’s Riverbank Landfill into the Ohio River. (Doc. 369-15 at 292). The second alleged source of C8 contaminated is soil throughout, the Facility, including a 750-ton pile, which allegedly is a source of C8 into the Ohio River via DuPont’s overland flow of storm-water run-off. (See Doc. 369-9). Further, Plaintiff argues that as the Facility is right on the riverbank, rainwater infiltrates these soils, becomes groundwater, and enters the Ohio River via seeps and erosion of the soil. The final source of C8 contamination is storm-water run-off, including from roof drains, that works its way to the Ohio River.
Defendant retorts that it is undisputed that all process discharges should be excluded, and that once these process emissions are excluded, Little Hocking has not pointed to evidence in the record to establish the source or amounts of the alleged non-process emissions. Defendant puts forth evidence showing the NPDES permits, issued August 4, 2003 and August 26, 2011, together allow the Facility to dispose of untreated storm water via over twenty specified outlets into the Ohio river within a 0.7 mile portion of the riverbank, and also permits wastewater discharges from the local landfill.
A “point source” is defined in the Clean Water Act as:
[A]ny discernible, confined, and discrete conveyance, including, but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture.
4Q C.F.R. § 260.10. The DuPont Facility has NPDES permits for the discharge of untreated storm water via over twenty outlets into the Ohio River. Thus, these outlets, and the storm water discharge from them, are excluded from the definition of solid waste, as they exit point sources that are unambiguously covered by an NPDES permit. See 42- U,S.C. § 6903(27); 40 C.F.R. § 261.4. Plaintiff alleged in its Response that untreated storm water from Facility roof drains, soil, and other sources are discharges not from point sources. Plaintiff did not identify, however, the exact location from where this rainwater exits the Facility. If this untreated storm water in fact exits from these designated, permitted outlets, such discharges are from point sources, and are governed by the CWA.
In its reply, Defendant states simply that the Facility has permits for untreated storm water, but does not state that the outlets for which it has permits are the exclusive exit points for all storm water. Other circuits have held that runoff caused primarily by rainfall around activities that employ or cause pollutants, and contaminated runoff and groundwater from contaminated soil, may or may not be point sources subject to regulation by the CWA. United States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.1979) (interpreting the CWA and holding “mining and the other categories listed in s 1314(f)(2) may involve discharges from both point and nonpoint sources, and those from point sources are subject to regulation”). This Court holds, therefore, that there is a genuine issue of material fact whether some of the storm water runoff from contaminated soil and buildings, which eventually reaches the Ohio River, but which does not exit the Facility through a discrete conveyance, involves disposal of solid waste cognizable under RCRA.
In terms, of C8 that seeps into the Ohio River from the C8 contaminated Riverbank Landfill, and which seeps into the groundwater and eventually the Ohio River from C8 contaminated soils, this Court also finds that there is a genuine issue of material fact whether these sources of contamination involve disposal of solid waste cognizable under RCRA. RCRA’s solid waste exclusion “applies only to the actual point source discharge. It does not exclude industrial wastewaters while they are being collected, stored or treated before discharge, nor does it exclude sludges that are generated by industrial wastewa-ter treatment.” 40 C.F.R. § 261.4(a)(2); see United States v. Dean, 969 F.2d 187, 194 (6th Cir.1992). Courts have interpreted this to mean that substances in waste-water that harm the environment while being stored in disposal ponds, or substances which leak, spill, or are poured onto the ground, thus contaminating soil, groundwater or surface waters, are not point source discharges. See Humboldt Baykeeper v. Union Pac. R. Co., No. C 06 02560 JSW, 2006 WL 3411877, at *6 (N.D.Cal. Nov. 27, 2006); Dean, 969 F.2d at 194.
In contrast, Williams Pipe Line Co. v. Bayer Corp. found that petroleum spills and leaks that made their way to navigable waters via groundwater were industrial discharges from a Facility, which it held was a point source in and of itself, and thus such discharges were subject to an NPDES permit. 964 F.Supp. 1300, 1328-29 (S.D.Iowa 1997). Accordingly, it held that these spills and leaks were excluded from the definition of “solid waste” under 42 U.S.C. § 6903(27), and outside of RCRA’s remedial reach. Id. The Williams Court noted, .however, that other courts had determined that petroleum discharged through leaks and spills into soil meets the definition of discarded material, and thus constitutes solid waste, but distinguished those cases because the defendants there were not subject to abatement and remediation conditions established under an NPDES permit, as was the case in Williams. It also acknowledged that not all courts consider. groundwater that is hydraulically connected to navigable waters to be encompassed by the CWA. Id.
In this case, DuPont is not subject to abatement and remediation conditions established under NPDES permits of which this Court has been made aware. Further, this Court declines to interpret the solid waste exclusion so broadly as to make it impossible for solid waste dumped or leaked onto the ground at a Facility, but which makes its way to navigable waters via groundwater and seepage, to be subject to RCRA’s ISE provision. . The RCRA scheme itself defines “disposal” as
the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters
42 U.S.C.A. § 6903.
Thus, in its definition of “disposal” RCRA presupposes that its remedial framework reaches solid waste that is placed directly in water, or placed on land and then eventually discharged into water. An expansive reading of the solid waste exclusion — whereby any toxic waste from a Facility that is placed on land, and which eventually make its way to navigable waters, is not solid waste under RCRA— contradicts the language of § 6903. Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir.2003) (“Under accepted canons of statutory interpretation, we must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.”).
Further, other circuits have found that solid waste disposed onto land by waste disposal facilities, which may or does make its way to navigable waters, or waste dumped directly into navigable waters, is covered by the ISE provision. See Maine People’s Alliance And Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 281 (1st Cir.2006) (finding application of RCRA ISE provision where industrial Facility dumped tons of mercury-laden waste directly- into river); Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 263 (3d Cir.2005) (finding application of RCRA ISE provision where waste from a dump site made its way to a river); Cox v. City of Dallas, Tex., 256 F.3d 281, 286-87 (5th Cir.2001) (finding significant in its determination that an ISE existed that there was an imminent threat that solid waste at a dumping site would make its way to a nearby creek, which was a tributary to a river). Accordingly, this Court finds that C8 dumped into the Riverbank Landfill and its anaerobic ponds, and into the soil surrounding the Facility, and which makes its way into the Ohio River through seepage, is not covered by the solid waste exclusion under RCRA. The Court finds that the Plaintiff need not quantify the exact amount of such seepage in order for this Court to determine that C8 was disposed of and reached the Ohio River.
A narrow reading of the solid waste exclusion, such as the one followed in Williams, would entail that any pollutants stored or dumped on the ground at waste sites or industrial facilities, which eventually enter navigable waters, are in no way subject to the remedial protection of the ISE provision due to the definition of solid waste under RCRA § 6903(27). Such a reading of RCRA would undermine the broader purpose of Section 6972(a)(1)(B), which was “intended to confer upon the courts the authority to eliminate any risks posed by toxic wastes,” which, under the definition of ‘disposal,’ unambiguously includes risks to navigable waters. Interfaith Cmty. Org., 399 F.3d at 260 (quoting S.Rep. No. 98-284, 98th Cong., 1st Sess. at 59 (1983)).
ii. Via Air
Defendant agrees that C8 from the DuPont Facility was transported via air emissions from DuPont’s stacks by wind, and was deposited on Little Hocking’s Wellfield vegetation and surface soils. It also agrees that precipitation and possible flooding leaches the C8 downward through the unsaturated zone through the aquifer, and that groundwater containing C8 is pumped from the aquifer through the production wells. Defendant asserts, however, that air emissions of C8 particulate matter via industrial stacks does not constitute disposal of solid waste under RCRA. Accordingly, Defendant argues that insofar as C8 is currently on Plaintiffs land due to air emissions, such deposits cannot be remediated under RCRA’s ISE provision.
Defendant argues, first, that air emissions of C8 do not constitute “solid waste” under RCRA’s definition. The portion of the definition of “solid waste” under RCRA that applies to Defendant’s air emissions of C8 is that it is a “discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial ... operations.” § 6908(27). Defendant argues that since C8 was released into the air via stacks, it is not included in the definition of solid waste because it was an “uncontained” gaseous material, not a “contained” gaseous material as required by RCRA. See United States v. Sims Bros. Const., 277 F.3d 734, 740 (5th Cir.2001) (holding that “[f]or gaseous material to be ‘solid waste’ it must be ‘contained.’”). The court in Sims Bros Const., however, dealt unambiguously'with a contained gas — the storage of canisters of contained gas — and was not required to analyze the question in the case sub judice. In this case, the Court must determine whether the release into the air of a substance in “particle form” via a stack, which is then deposited onto the ground in particle form, and enters the groundwater, constitutes disposal of “solid waste.”
Plaintiff urges this Court to follow a case from this Circuit, Citizens Against Pollution v. Ohio Power Co., and find that particulate matter released via the air, which then “touches down” onto the ground, constitutes disposal of solid waste under RCRA. No. C2-04-CV-371, 2006 WL 6870564, at *3-5 (S.D.Ohio July 13, 2006). In that case, byproducts of coal combustion at defendant’s coal-burning Facility passed through various equipment and then exited a stack as part of a flue gas. Id. at *1. The flue gas took the shape of a plume and appeared to touch down on the land, causing plaintiffs members to experience watery eyes, burning throats, headaches, and breathing problems. Id. at *2. First, the Citizens Court held that the flue gas emissions were “discarded material” within the definition of solid waste. It reasoned that the definition of “discarded” included the synonym “abandon,” which the Federal Register defined as “disposed of, or burned or incinerated, or accumulated, stored or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or incinerated.” 40 C.F.R. § 261.2(b). Id. at *4 (emphasis added). The Court then found that RCRA’s definition of “disposal” required only some evidence that the discharge touches down onto land, which the flue gas had, and did not necessarily require the discharge to enter the environment, air or waters. Id. The Court then held it need not address Defendant’s assertion that flue gas was not a solid waste because it was not “solid, liquid, semisolid, or contained gaseous material:”
As previously noted, the RCRA is a remedial statute that is to be interpreted broadly. Davis [v. Sun Oil Co.], 148 F.3d [606] at 609 [(6th Cir.1998)]. Keeping that principle in mind, the definition of solid waste encompasses ‘other discarded material, including solid, liquid, semisolid, or contained gaseous material’ resulting from industrial, commercial, mining, and agricultural operations .... ’ (Emphasis Added). The Court held above that the flue gas was discarded material resulting from industrial operations within the meaning of the RCRA; thus, the Court essentially held that the flue gases were solid waste within the meaning of the Act. The Court need not additionally determine whether the flue gas is a ‘liquid, solid, semisolid, or contained gaseous material’ because, interpreting the provision liberally, the reference to those materials in regards to discarded material is merely illustrative, not comprehensive. Accordingly, the Court need not and shall not determine whether the flue gas is a ‘liquid’ under the RCRA.
Id. at *5.
Plaintiff argues that under Citizens, the discharge of C8 particles into the air, which then fall onto land, constitutes disposal of “solid waste;” C8 was a discarded or disposed of material, discharged from the industrial plant, which touched down onto the ground'
Defendant urges this Court to follow, instead, Ctr. for Cmty. Action & Envtl. Justice v. BNSF R. Co., 764 F.3d 1019 (9th Cir.2014). There, the Ninth Circuit held that emissions of particulate matter in diesel exhaust by trains and vehicles in Defendants’ railyards — which were discharged into the air, fell onto the ground and water nearby, and then re-entrained into the atmosphere, causing elevated cancer risk — did not meet the definition of “disposal” under RCRA § 6903(3). Id. at 1024. Specifically, it held that under § 6903(a) “disposal” is strictly confined to a particular order, in which solid waste is ‘‘first placed ‘into or on any land or water’ and is thereafter ‘emitted into the air,’ ” and thus disposal directly into the air which then fell on the ground was not “disposal” under RCRA. Id. For further support, the Court noted that the term “emissions” was absent from the definition of disposal, even though that term was present in other portions of the statute. Id. Finally, the Court rejected plaintiffs contention that since RCRA has an “air ' emissions” provision— § 6924(n), which covers gas discharges from solid waste dump sites — that “emitting” must fall within the statute’s reach, see § 6924(n). Id. at 1025. (distinguishing § 6924(n) from the rest of the remedial scheme and finding that the necessity to included 6924(n) in RCRA indicated that RCRA did not otherwise intend to regulate air emissions through § 6972(a)(1)(B)). Id.
After completing its statuto