RECENT FEDERAL DECISIONS

January 2010

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District Court Finds Pleadings Sufficient to Withstand Motion to Dismiss Clean Water Act and RCRA Claims against Walt Disney Company
Environmental World Watch, Inc. v. The Walt Disney Company, ___F. Supp.2d___

Walt Disney Worldwide Services, Inc. (Disney) moved to dismiss plaintiff’s second amended complaint for lack of standing and for failure to state a claim. Plaintiff alleged that Disney is a past or present generator, transporter, owner or operator of “a treatment, storage, or disposal facility…” the operation of which has contributed to or is contributing to the disposal of hazardous waste, specifically hexavalent chromium (Cr VI), into the land, water, and air surrounding Disney’s Burbank, California studio. Disney moved to dismiss the complaint on grounds that plaintiff’s Resource Conservation and Recovery Act (RCRA) causes of action did not define a specific hazardous waste, and failed to define when and where the disposal of hazardous waste occurred during the last five years. With respect to plaintiff’s Clean Water Act (CWA) causes of action, Disney argued that plaintiff failed to adequately allege discharge of a particular pollutant from a specific point source, and that plaintiff’s allegations that Disney needed an NPDES permit in order to discharge to the City of Burbank’s municipal storm water system (MS4). The court held that plaintiff had standing under Friends of the Earth, Inc. and Lujan; that plaintiff’s RCRA allegations plausibly suggested that Disney had disposed of a “hazardous waste”; and that plaintiff’s allegations that Disney’s facility was a point source within the meaning of the CWA that discharged a pollutant (i.e., Cr VI) sufficed to withstand the motion to dismiss.