United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND
GRANTING PLAINTIFF LEAVE TO AMEND
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants Fire Mountain
Farms, Inc. (“FMF”), Martha Ann Thode, and Robert
J. Thode's (“Thodes”) (collectively
“Defendants”) motion to dismiss (Dkt. 13). The
Court has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants the motion for the reasons stated herein.
PROCEDURAL AND FACTUAL BACKGROUND
16, 2017, Plaintiff Emerald Kalama Chemical, LLC
(“Emerald”) filed a complaint against Defendants
alleging a violation of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended
by the Superfund Amendments and Reauthorization Act of 1986,
42 U.S.C. § 9601 et seq.
(“CERCLA”). Dkt. 1. Emerald seeks reimbursement
for necessary costs to investigate and remediate the release
of hazardous substances and a declaratory judgment that
Defendants “are liable for future response costs to be
incurred by Emerald to address releases of hazardous
substances at” Defendants' facilities. Id.
allegations in the complaint stem from Defendants'
disposal of organic byproduct obtained from Emerald's
plant in Kalama, Washington (“Kalama Facility”).
At this facility, Emerald “treats process wastewater,
stormwater, groundwater and laboratory wastewater . . .
generating approximately 40 tons of recyclable material
(“Material”) per week.” Id.,
¶ 9. Although the Material contains hazardous substances
regulated by CERCLA, it “meets all applicable
regulatory standards for use as a fertilizer product.”
1995, FMF has obtained and recycled the Material for a fee
pursuant to “Recycling Agreements” entered into
with the previous owner of the Kalama Facility and Emerald.
Id., ¶¶ 11-12. In April 2014, the
Washington Department of Ecology (“Ecology”)
requested that Emerald stop sending Material to FMF.
Id., ¶ 16. After testing material samples from
FMF's facilities, Ecology issued a corrective action.
Emerald alleges as follows:
On September 11, 2014, Ecology issued Administrative Order
10938 to Emerald and FMF (the “Order”). Order
10938 required four corrective actions, two of which required
action by Emerald in addition to FMF. Corrective Action No. 3
required Emerald and FMF to develop and implement a plan to
prevent overtopping of the surface impoundment at FMF's
Burnt Ridge facility and to address releases if they occur.
Corrective Action No. 4 required Emerald and FMF to develop
and implement a plan to manage the material stored at all
three FMF/Thode Facilities, including a plan for closing the
three facilities, cleaning up spills and environmental media
affected by spills, and managing and disposing of materials
at the facilities. Emerald and FMF appealed Order 10938, but
Emerald agreed to implement certain provisions to address the
impoundment at Burnt Ridge. Specifically, as required by
Corrective Action No. 3, Emerald developed and implemented a
plan to prevent overtopping at Burnt Ridge and to address
On November, 21, 2014, Ecology issued Administrative Order
11084 to Emerald and FMF. Order 11084 specified the method
for complying with Order 10938's corrective Action No. 3.
On November 12, 2015, in response to Ecology's request to
prevent overtopping of the surface water at the FMF
facilities, Emerald timely submitted to Ecology its Plan to
Manage the Surface Water and Biosolids at the FMF/Thode
Facilities at Newaukum Prairie, Burnt Ridge, and Big
On December 11, 2015, in response to Ecology's request to
modify its November 12, 2015 Plan, Emerald submitted a
Revised Plan to Manage the Surface Water and Biosolids at
Fire Mountain Farms Newaukum Prairie Impoundment.
On December 17, 2015, Ecology issued Administrative Order
13063 to Emerald and FMF approving the Revised Plan.
On June 3, 2016, Emerald, FMF, and Ecology entered into an
Agreement for Conditional Compliance With Ecology
Administrative Order No. 10938 During Judicial Review
(“Agreement”). The Agreement contains, among
other things, a schedule for Emerald and FMF to develop and
submit for Ecology approval closure plans for the three FMF
storage units and to develop, submit and implement plans to
sample the material in the three impoundments and several of
the fields at which FMF land applied the Material.
To comply with the Orders, Emerald has incurred response
costs including, but not limited to, response costs at the
Burnt Ridge and Newaukum Prairie impoundments, response costs
to sample the mixed material at all three units, response
costs to sample the various fields at which the Emerald
Material was land applied by FMF, and response costs for
other actions. Emerald also will continue to incur response
costs associated with the management and disposal of the
materials and the decontamination of the FMF/Thode
Facilities. Although the Orders were issued to both Emerald
and FMF, and both Emerald and FMF are parties to the
Agreement, Emerald has incurred and expects to incur the vast
majority of the response costs in connection with
implementation of the ...