United States District Court, N.D. Oklahoma
RANDALL S. KRAUSE, Plaintiff,
GENERAL ELECTRIC COMPANY, Defendant.
OPINION & ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE.
Amended Complaint (Doc. 10) purports to bring a citizen suit
under the Resource Conservation and Recovery Act
(“RCRA”), as provided for by 42 U.S.C. §
6972(a)(1)(A). He alleges that Defendant has violated
Subtitle C of RCRA by adding a mercury antioxidant to its
Ecolux line of fluorescent lamps. The Court now has for its
consideration Defendant's Motion to Dismiss for Lack of
Subject Matter Jurisdiction (Doc. 12) and Defendant's
Motion to Dismiss for Failure to State a Claim (Doc. 13). The
Court has considered Defendant's Motions and Brief in
Support (Doc. 14), Plaintiff's Response (Doc. 15),
Defendant's Reply (Doc. 19), and Plaintiff's
Sur-Reply (Doc. 24).
original argument in its Motions was that Plaintiff's
claim should be dismissed-either for lack of subject matter
jurisdiction or for failure to state a claim upon which
relief can be granted-because Plaintiff failed to comply with
the 60-day delay requirement provided by 42 U.S.C. §
6972(b)(1). As explained in this Court's prior order,
this 60-day delay provision does not apply to Plaintiff's
claim. (See Doc. 23 at 2).
Reply, Defendant raises new arguments for why this Court does
not have subject matter jurisdiction over Plaintiff's
claim. Defendant first argues that Plaintiff's claim must
be dismissed because his pre-suit notice violated 40 C.F.R.
§ 254.3(a) by failing to contain “dates,
specificity, or a time-frame for the alleged
violations.” (Doc. 19 at 2). Defendant also asserts
that Plaintiff has failed to establish standing to bring this
claim. Specifically, Defendant asserts that Plaintiff has
neither alleged nor demonstrated an injury in fact. (Doc. 19
at 2). Because the Court agrees that Plaintiff has failed to
establish Article III standing, it need not address
Defendant's argument concerning 40 C.F.R. §
III . . . gives the federal courts jurisdiction over only
‘cases and controversies, ' and the doctrine of
standing serves to identify those disputes which are
appropriately resolved through the judicial process.”
Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990),
quoted in Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). In order to satisfy the “irreducible
constitutional minimum of standing, ” a plaintiff must
show that “(1) [he] has suffered an ‘injury in
fact' that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000);
Lujan, 504 U.S. at 560-61. Moreover, “[t]he
party invoking federal jurisdiction bears the burden of
establishing these elements.” Lujan, 504 U.S.
relevant showing for satisfying the first prong of Article
III standing “is not injury to the environment but
injury to the plaintiff.” Friends of the Earth,
Inc., 528 U.S. at 181. If the alleged harm “in
fact affects the recreational or even the mere esthetic
interests of the plaintiff, that will suffice.”
Summers v. Earth Island Inst., 555 U.S. 488, 494
(2009). Yet, neither a “bald assertion” of
aesthetic or recreational harm “nor a purely subjective
fear that an environmental hazard may have been created is
enough to ground standing.” Maine People's All.
& Nat. Res. Def. Council v. Mallinckrodt, Inc., 471
F.3d 277, 284 (1st Cir. 2006). Federal courts have found that
plaintiffs adequately alleged an injury in fact to bring a
citizen suit under RCRA where the plaintiff associations'
members resided on or near the banks of a river and claimed
diminished enjoyment of that river due to fear of mercury
contamination, id. at 283-84, and where a plaintiff
association alleged that the defendant's discharge of
waste threatened the herring population on which the
association's members' livelihoods depended. San
Francisco Herring Ass'n v. Pac. Gas & Elec. Co.,
81 F.Supp.3d 847, 858-60 (N.D. Cal. 2015).
response to Defendant's standing argument, Plaintiff
provides only a few sentences of explanation as to why he
believes his Amended Complaint alleges an injury in fact.
Plaintiff states that “OAC [Oklahoma Administrative
Code] 252:205-3-2(c) protects [his] interest in being assured
that the waste put in landfills in Tulsa is not hazardous,
” and that “GE's practice of adding a mercury
antioxidant to Ecolux lamps is an invasion of Krause's
legally protected interest in being assured that the waste
put in landfills in Tulsa is not hazardous.” (Doc. 24).
Administrative Code § 252:205-3-2(c) provides for the
incorporation by reference, with minor exceptions, of Part
261 (“Identification and Listing of Hazardous
Waste”) of the EPA regulations concerning solid waste.
Oklahoma's adoption of these regulations, however, does
not imbue Plaintiff with standing to bring this RCRA claim.
Plaintiff has not shown any concrete or particularized injury
suffered by him-neither in his Amended Complaint (Doc. 10),
nor in his Sur-Reply (Doc. 24). As such, his claim must be
dismissed for lack of subject matter jurisdiction. See
N.M. Off-Highway Vehicle All. v. U.S. Forest Serv., 645
F. App'x 795, 804 (10th Cir. 2016) (unpublished)
(“Federal courts scrupulously guard the boundaries of
their jurisdiction . . . .”).
foregoing reasons, Defendant's Motion to Dismiss for Lack
of Subject Matter Jurisdiction (Doc. 12) is hereby
granted. Defendant's Motion to Dismiss
for Failure to State a Claim (Doc. 13) is
moot. Plaintiffs claim under RCRA is
dismissed without prejudice. A separate
Judgment will be entered forthwith.
 The Court granted Plaintiff permission
to file a sur-reply after Defendant raised new arguments in
its reply ...