903 F.Supp. 771 (D.Del. 1995), Civ. A. 93-504, New Castle County v. Halliburton NUS Corp.

Docket Nº:Civ. A. 93-504
Citation:903 F.Supp. 771
Party Name:New Castle County v. Halliburton NUS Corp.
Case Date:October 06, 1995
Court:United States District Courts, 3th Circuit, District of Delaware

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903 F.Supp. 771 (D.Del. 1995)

NEW CASTLE COUNTY, Rhone-Poulenc, Inc., Zeneca, Inc. and ICI Americas, Inc., Plaintiffs,



Civ. A. No. 93-504-LON.

United States District Court, D. Delaware.

Oct. 6, 1995

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[Copyrighted Material Omitted]

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Julie M. Sebring of New Castle County Law Department, Wilmington, Delaware (George J. Weiner of McCutchen, Doyle, Brown & Enersen, Washington DC, of counsel), for Plaintiff New Castle County.

Joseph C. Kelly and Heather C. Winett of Zeneca, Incorporated, Wilmington, Delaware, for Plaintiffs Rhone-Poulenc, Inc., Zeneca, Inc., and ICI Americas, Inc.

Phebe S. Young of Bayard, Handelman & Murdoch, P.A., Wilmington, Delaware (Lawrence H. Schwartz and Stephen E. Williams of Bayh, Connaughton, Fensterheim, & Malone, P.C., of counsel), for Defendant Halliburton NUS Corporation.


LONGOBARDI, Chief Judge.


Plaintiffs 1 incurred cleanup obligations when they entered into a consent agreement to settle a lawsuit brought by the EPA relating to the Tybout's Corner landfill site (the "Landfill"), United States v. New Castle County, et al., Civil Action No. 80-489 (LON) (the " USA action"). In the case sub judice, Plaintiffs seek to recover some of those costs from Defendant, Halliburton NUS Corporation ("NUS").

Prior to the signing of the consent agreement, NUS contracted with the EPA to perform a Remedial Investigation/Feasibility Study ("RI/FS") for the Landfill. In the course of the RI/FS, NUS installed a well, referred to as TY-311, in an area where refuse had been emplaced during the operation of the facility. Installation of this well and analysis of the borings obtained during its construction were intended to determine, inter alia, the presence of the Merchantville Formation. The Merchantville Formation is a clay strata that separates the shallow formation known as the Columbia Sand (which contains ground water impacted by landfill material) and the underlying formation known as the Potomac Sand (which contains the ground water serving as a major supply of drinking water for New Castle County). [Second Amended Complaint, Docket Item ("D.I.") 64 pp 6-7].

In this action, Plaintiff's contend that: 1) NUS constructed the TY-311 well improperly, resulting in the creation of a "window" in the Merchantville formation that could function as a conduit between the Columbia Sand and the Potomac Sand; and 2) based upon its analysis of data collected in connection with the installation of TY-311, NUS mistakenly reported that the Merchantville clay was missing beneath the Landfill in the vicinity of TY-311. One or both of these contentions provide the underlying bases for the three Counts contained in Plaintiff's second amended complaint.

Count I is brought under common law negligence and is supported by both the improper construction contention and the improper analysis contention.

Count II is brought under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., and seeks to hold NUS liable as an operator and/or arranger under 42 U.S.C. § 9607(1) and/or (3). Count II is supported by the improper construction contention.

Count III is brought under the Delaware Hazardous Substances Cleanup Act ("HSCA"), and seeks to hold NUS liable under 7 Del.C. §§ 9105(a)(1), (2), (4), and/or (5). Count III is supported by the improper construction contention.

NUS moves for summary judgment on Count I on the grounds that defendant owed no duty of care to plaintiffs. NUS moves for summary judgment on Count II on the grounds that plaintiffs' CERCLA claim is a claim for contribution and as such is time barred by the three year limitations period applicable to contribution claims.

On March 24, 1994, this action was referred to the Honorable Mary Pat Trostle, United States Magistrate-Judge. [D.I. 18]. Presently before the Court is her Report and Recommendation ("R & R"), [D.I. 27], in which she recommends that NUS's motion for summary judgment on Counts I and II be

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denied. NUS has filed Objections to the R & R, [D.I. 73], and Plaintiffs have filed a Response to NUS's objections, [D.I. 79].


Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) when the moving party establishes that there is no genuine issue of material fact that can be resolved at trial and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Materiality is determined by the substantive law that governs the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In this inquiry, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. A dispute is "genuine" only if a reasonable jury could return a verdict for the nonmoving party. Id. Following a determination that no genuine dispute of material facts exists, the moving party must demonstrate that it is entitled to judgment as a matter of law.

Any doubts as to the existence of genuine issues of fact will be resolved against the moving party and all inferences to be drawn from the material it submits will be viewed in the light most favorable to the party opposing the motion. Norfolk Southern Corp. v. Oberly, 632 F.Supp. 1225, 1231 (D.Del.1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970)), aff'd, 822 F.2d 388 (3d Cir.1987). If the evidentiary record supports a reasonable inference that the ultimate facts may be drawn in favor of the responding party, then the moving party cannot obtain summary judgment. In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 258 (3d Cir.1983), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).


NUS objects to two portions of the Magistrate's Report and Recommendation on what NUS characterizes as "procedural" grounds. First, NUS objects to the statements contained in the "Factual Background" section of the Report and Recommendation, contending that the Magistrate-Judge listed as undisputed facts items that are very much in dispute. The Court interprets the Report and Recommendation not as expressing undisputed facts, but rather expressing the facts in a light most favorable to the plaintiffs, as they necessarily must be viewed at this stage. If the presentation of facts in the Report and Recommendation seems one-sided, this is because at this stage NUS does not present any factual contentions of its own but rather relies solely on legal arguments regarding duty of care (Count I) and statute of limitations (Count II). Indeed, NUS makes perfectly clear that it intends to dispute plaintiffs' version of the facts at trial if its legal arguments fail [D.I. 56 at 2 n. 1].

Second, NUS contends that the Magistrate-Judge ignored NUS' reply brief, D.I. 56, because the Magistrate did not specifically mention it in the opening paragraph of the Report and Recommendation. The fact that the Magistrate-Judge did not specifically list each document filed by the parties does not indicate that she ignored the parties' arguments. In any event, the Court has considered all arguments presented by the parties in its de novo review of the record in this case.


NUS contends that summary judgment is appropriate with respect to Count I because NUS owed a duty only to the public, pursuant to Section 288 of the Restatement (Second) of Torts:

The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively:


(b) to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public.

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NUS contends that the Eighth Circuit's recent decision in Tri-State Mint, Inc. v. Riedel Environmental Services, Inc., 29 F.3d 424 (8th Cir.1994) supports a finding that NUS owed no duty to plaintiffs as a result of its contract with the EPA. In Tri-State, the Eighth Circuit relied upon the public duty doctrine in holding that a specific South Dakota statute did not establish a private duty of care between Riedel, a contractor hired by the state of South Dakota, and Tri-State, a suspected polluter. Id. at 426-27.

Magistrate-Judge Trostle found that Tri-State was distinguishable from the case sub-judice because section 9619(a) of CERCLA, 2 in direct contrast to the South Dakota statute, specifically creates a cause of action in favor of PRPs such as the plaintiffs. The Court adopts that finding. Under section 9619(a)(1), a response action contractor is not liable under CERCLA or any other federal law to any person absent a finding that the response action contractor was negligent, grossly negligent, or engaged in intentional misconduct. Thus, a response action contractor is liable to "any other person" who is harmed by that response action...

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