though Globe no longer owns the property. Under RCRA, NGSC seeks injunctive
relief, civil penalties, attorney fees and expert witness fees. Doc. #14.

A. Globe’s Motion to Dismiss

Globe has moved to dismiss the RCRA citizen suit claim pursuant to Fed. R.
Civ. P. 12(b)(1) and (b)(6). It argues that: (1) NGSC lacks standing to bring this
claim; (2) a RCRA citizen suit cannot be brought to enforce a state’s hazardous
waste program authorized by the United States EPA; (3) wholly-past violations are
not actionable; and (4) the RCRA claim is barred because the State of Ohio has
commenced and is diligently prosecuting a similar action to require investigation
and remediation of the contamination.

For the reasons set forth below, the Court finds that NGSC lacks standing to
pursue its RCRA citizen suit. Accordingly, the Court need not address the
alternate grounds for dismissal.

B. Standing

Standing is, of course, a threshold inquiry in every case. Despite the fact
that RCRA provides that “any person” may file a citizen suit, NGSC nevertheless
must meet the three constitutional standing requirements. It must show: (1) a
concrete and particularized, actual or imminent injury-in-fact; (2) fairly traceable to
the challenged actions of the opposing party; (3) that is likely to be redressed by a

favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992).


Ill. Conclusion

The Court finds that NGSC lacks standing to pursue its citizen suit under
RCRA. On this ground, the Court SUSTAINS Defendant Globe’s Motion to Dismiss
Count | of the Crossclaims of Defendant NGSC, Doc. #21, and DISMISSES the

RCRA claim WITH PREJUDICE. '

Date: February 11, 2019 CS sss duc
WALTER H. RICE
UNITED STATES DISTRICT JUDGE

' In its Motion to Dismiss, Globe also argues that, to the extent that NGSC might
seek leave to amend to instead assert a cross-claim under Ohio’s citizen suit
provision, Ohio Rev. Code § 3734.101, such a request should be denied because it
would be futile. Given that NGSC has not moved to amend its pleading to assert
any such cross-claim, there is no need for the Court to address Globe’s request.


waste program is consistent with and equivalent to RCRA, 40 C.F.R. § 272.1800-
1801, Ohio may administer the RCRA hazardous waste management program, and
violations of Ohio’s EPA regulations may be enforced by a citizen suit under §
6972(a)(1)(A). Ohio EPA regulations provide that:

The owner or operator must close his facility in a manner that:

(A) Minimizes the need for further maintenance; and
(B) Controls, minimizes, or eliminates, to the extent necessary

to protect human health and the environment, post-closure escape of

hazardous waste, hazardous constituents, leachate, contaminated run-

off, or hazardous waste decomposition products to the ground water,

or surface waters, or to the atmosphere; and

(C) Complies with the closure requirements of rules 3745-66-10

to 3745-66-21, including, but not limited to, the requirements of rules

3745-66-97, 3745-67-28, 3745-67-58, 3745-67-80, 3745-68-10,

3745-68-51, 3745-68-81, 3745-69-04, and 3745-256-102 of the

Administrative Code.

Ohio Admin. Code 8 3745-66-11. “[Al]ll contaminated equipment, structures and
soil must be properly disposed of, or decontaminated.” Ohio Admin. Code § 3745-
66-14.

NGSC alleges that, as a large-quantity generator of hazardous waste, Globe
was required to prepare a written closure plan when it ceased operations, was
required to treat, remove or dispose of all hazardous waste, and certify to the Ohio
EPA that closure was complete. See Ohio Admin. Code § 3745-52-34(B).

According to NGSC, Globe failed to comply with these requirements when it

ceased operations and continues to be in violation of these requirements even


ie Injury-in-Fact?

Globe argues that, because NGSC no longer has any property interest in the
Stanley Avenue Property, it cannot show an injury-in-fact. NGSC does not own
the property or any nearby property, has no security interest in the property, and
does not use the property for recreational purposes. Globe maintains that, because
NGSC has no legally-protected property interest that is affected by the alleged
violations, there can be no injury-in-fact.

The Court rejects this argument. NGSC alleges that, as a previous owner
and operator of the Stanley Avenue Property, it has been named as a potentially
responsible party under CERCLA and is subject to ongoing liability for response
costs incurred at the Site by the Ohio EPA. In the Court’s view, this economic
injury is sufficient to establish an injury-in-fact that is both “concrete and
particularized” and “actual and imminent.” See, e.g., Kemper Prime Indus.
Partners v. Montgomery Watson Ams., Inc., No. 97cv4278, 2000 U.S. Dist. LEXIS
11450, *17-18 (N.D. Ill. June 23, 2000) (holding that underlying lawsuit and
associated expenses constituted injury-in-fact for standing purposes); Clean
Harbors Servs., Inc. v. Ill. Int’ Port Dist., 309 F. Supp. 3d 556, 563 (N.D. Ill.
2018) (finding injury-in-fact where plaintiff alleged that it had incurred, and would
continue to incur, substantial costs related to contamination at the Site).

2: Fairly Traceable to Globe?
NGSC has also adequately alleged that its injury is fairly traceable to Globe’s

alleged violations. According to NGSC, it was Globe's failure to comply with the


IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

STATE OF OHIO, ex re/. Dave
Yost, Ohio Attorney General,

Plaintiff, : Case No. 3:18-cv-142
v. "JUDGE WALTER H. RICE
GLOBE MOTORS, INC. et a/.,
Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANT GLOBE
MOTORS, INC.’S MOTION TO DISMISS COUNT | OF THE
CROSSCLAIMS OF DEFENDANT NORTHROP GRUMMAN SYSTEMS
CORPORATION (DOC. #21)

Plaintiff, State of Ohio, filed suit against Globe Motors, Inc. (“Globe”), and
Northrop Grumman Systems Corporation (“NGSC”), formerly known as TRW, Inc.,
alleging that, from 1954 until 1991, Defendants disposed of hazardous substances
on their property, located on Stanley Avenue in Dayton, Ohio (the “Stanley Avenue
Property” or the “Site”). Those hazardous substances have been found in the soil
and in the groundwater.

The Ohio Environmental Protection Agency (“EPA”) has already incurred
$274,097.96 in response costs at the Site, and continues to incur response costs.
Pursuant to the Comprehensive Environmental Response, Compensation and

Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9607(a), Plaintiff seeks declaratory


closure requirements that prompted the Ohio EPA to file this lawsuit, thereby
subjecting NGSC to liability.
3. Likely to Be Redressed by Favorable Decision?

Even though NGSC has demonstrated an injury-in-fact that is fairly traceable
to Globe, it cannot satisfy the final requirement for Article Ill standing. The
economic injury complained of -NGSC’s CERCLA liability — will not be redressed by
a favorable decision on the RCRA claim. Even if Court grants injunctive relief,
ordering Globe to comply with the closure requirements and store, treat or dispose
of hazardous waste, or imposes civil penalties on Globe, this has no impact on
NGSC'’s present or future CERCLA liability for response costs at the Site. Under
CERCLA, NGSC would still be liable for response costs, assuming that Plaintiff can
prove that TRW was an owner or operator of the facility at a time when disposals
of hazardous waste occurred. 42 U.S.C. § 9607(a)(2).

NGSC cannot recover past response costs under RCRA. Meghrig, 516 U.S.
at 488. It argues, however, that a favorable decision will enable it to avoid future
response costs at the Site. The Court fails to see how this is possible.

Regardless of whether the Court orders Globe to remediate the Site or imposes
civil penalties against it, NGSC’s potential liability for those response costs remains
constant. Accordingly, the economic injury complained of will not be redressed by

a favorable decision on the RCRA claim.


judgment and recovery of its response costs. Plaintiff also seeks injunctive relief
and damages under Ohio law. Doc. #1.

Defendant NGSC has filed several cross-claims against Defendant Globe,
including a “citizen suit” under the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S.C. 8 6972(a)(1)(A). Doc. #14. This matter is currently before
the Court on Globe’s Motion to Dismiss Count | of the Crossclaims of Defendant

Northrup Grumman Systems Corporation, the RCRA claim. Doc. #21.

I. Factual and Procedural Background

According to the Complaint, Globe Industries, Inc., purchased the Stanley
Avenue Property in 1951 and began manufacturing electric motor parts in 1954.
In 1967, TRW, Inc., a predecessor to NGSC, acquired Globe Industries and the
Stanley Avenue Property, and continued operations there. In 1987, Globe Motors
(unrelated to Globe Industries, Inc.) acquired the Stanley Avenue Property and two
motor divisions of TRW, Inc. Globe continued manufacturing electric motor parts
on the Stanley Avenue Property until 1991, and then sold the property in 1995.

NGSC denies that TRW disposed of any hazardous substances at the
Stanley Avenue Property. According to NGSC’s Cross-Claims, from 1987 until
1995, Globe generated large quantities of hazardous waste, which was stored on
the Stanley Avenue Property. NGSC alleges that, when Globe ceased operations in
1991, Globe was required to prepare a written closure plan, conduct closure

activities, submit certification of such closure and comply with RCRA regulations


and analogous state law and regulations. NGSC maintains that Globe’s failure to
comply with these requirements prompted the EPA to file this lawsuit.

NGSC has asserted several cross-claims against Globe: (1) a RCRA “citizen
suit”; (2) contribution under CERCLA, 42 U.S.C. § 9613(f); (3) contractual
indemnity and breach of contract; (4) common law indemnity; and (5) contribution
under Ohio Revised Code § 2307.25. Globe has moved to dismiss the first cross-

claim, the RCRA citizen suit. Doc. #21.

I. Analysis

The Resource Conservation and Recovery Act (“RCRA”) was enacted to
promote the treatment, storage or disposal of hazardous waste “so as to minimize
the present and future threat to human health and the environment.” 42 U.S.C.
§ 6902. The RCRA provision governing “citizen suits” provides, in relevant part,
that “any person may commence a civil action on his own behalf . . . against any
person . . . who is alleged to be in violation of any permit, standard, regulation,
condition, requirement, prohibition, or order which has become effective pursuant
to this chapter.” 42 U.S.C. § 6972(a)(1)(A). In a RCRA citizen suit, a district
court has authority to grant injunctive relief and to apply civil penalties. 42 U.S.C.
§ 6972(a). A private party cannot recover past cleanup costs under RCRA.
Meghrig v. KFC Western, Inc., 516 U.S. 479, 488 (1996).

In Count | of its Crossclaims, NGSC alleges that, because the United States

Environmental Protection Agency has determined that the Ohio EPA’s hazardous