Am. Premier Underwriters Inc. v. Gen. Elec. Co., Case No. 1:05cv437.

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Writing for the Court: MICHAEL R. BARRETT
• Citation: 866 F.Supp.2d 883
• Parties: AMERICAN PREMIER UNDERWRITERS INC., Plaintiff, v. GENERAL ELECTRIC COMPANY, Defendant.
• Docket Number: Case No. 1:05cv437.
• Decision Date: 31 March 2012

866 F.Supp.2d 883

AMERICAN PREMIER UNDERWRITERS INC., Plaintiff,
v.
GENERAL ELECTRIC COMPANY, Defendant.

Case No. 1:05cv437.

United States District Court,
S.D. Ohio,
Western Division.

March 31, 2012.

[866 F.Supp.2d 889]

Michael Lawrence Cioffi, Nathaniel R. Jones, Thomas H. Stewart, Jason D. Groppe, Blank Rome LLP, Cincinnati, OH, Richard L. Kremnick, Scott E. Coburn, Blank Rome LLP, Philadelphia, PA, for Plaintiff.

David W. Walulik, Frost Brown Todd LLC, Cincinnati, OH, Jon R. Fetterolf, Robert J. Shaughnessy, Steven R. Kuney, Brett R. Tobin, Williams & Connolly LLP, Washington, DC, for Defendant.

OPINION & ORDER
MICHAEL R. BARRETT, District Judge.

This matter is before the Court on Defendant General Electric Company's Motion for Summary Judgment on Statute of Limitations Issues (Doc. 91). Plaintiff American Premier Underwriters, Inc. (“APU”) has filed a Response in Opposition (Doc. 106), and General Electric filed a Reply (Doc. 143).

I. BACKGROUND

Plaintiff American Premier Underwriters, Inc. (“APU”) is the successor to the Penn Central Transportation Company (“Penn Central”). This action arises from contamination at four rail yards operated by Penn Central prior to April 1, 1976: (1) the Paoli Yard, located in Paoli, Pennsylvania; (2) the South Amboy Yard, located in South Amboy, New Jersey; (3) Sunnyside Yard, located in Long Island, New York; and (4) Wilmington Shops and related facilities, located in Wilmington, Delaware. During the period when Penn Central operated these rail yards, it owned and used passenger rail cars with transformers manufactured by GE. APU claims the GE transformers contaminated the rail yards by leaking polychlorinated biphenyls (“PCBs”).

APU filed the instant action against GE on June 24, 2005. This Court previously dismissed Count II; Counts XI through XIX (insofar as they are based on Pennsylvania law); Count XX; and Count XXI of APU's complaint. The remaining claims are as follows: Count I—cost recovery and declaratory relief under CERCLA § 107(a); Count III—contribution and declaratory judgment under CERCLA § 113(f); Count IV—contractual indemnification relating to the Silverliner IV cars; Count V—contractual indemnification relating to the Jersey Arrow II cars; Count VI—cost recovery under the Pennsylvania Hazardous Sites Cleanup Act (“PHSCA”); Count VII—contribution under the PHSCA; Count VIII—cost recovery under the New Jersey Spill Act; Count IX—contribution under the New Jersey Spill Act; Count X—contribution under the Delaware Hazardous Substances Cleanup Act; Count XI—trespass under New York, Delaware and New Jersey law; Count XII—negligence under New York, Delaware and New Jersey law; Count XIII—private nuisance under New York, Delaware and New Jersey law; Count XIV—public nuisance under New York, Delaware and New Jersey law; Count XV—abnormally dangerous activity under New York, Delaware and New Jersey law; Count XVI—strict liability under New York, Delaware and New Jersey law; Count XVII negligent design under New York, Delaware and New Jersey law; Count XVIII—negligent manufacture under New York, Delaware and New Jersey law; Count XIX—failure to warn under New York, Delaware and New Jersey law; Count XXII—punitive damages; and Count XXIII assignment of Conrail, SEPTA and Contrail's claims.

GE seeks to dismiss these remaining claims as being barred by the applicable statutes of limitations.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper

[866 F.Supp.2d 890]

“if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party has the burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving part has met its burden of production, the non-moving party cannot rest on his pleadings, but must present significant probative evidence in support of his complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of a scintilla of evidence to support the non-moving party's position will be insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the non-moving party. Id. at 252, 106 S.Ct. 2505.

The parties do not dispute the facts which are relevant to deciding the applicability of the statute of limitations, therefore deciding the issue upon a motion for summary judgment is appropriate.

III. ANALYSISA. Recovery of costs under CERCLA

In Counts I and XXII, APU brings claims pursuant to section 107(a) of the Comprehensive Environmental Response and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a). The applicable statute of limitations is found in section 113(g)(2), 42 U.S.C. § 9613(g)(2):

(2) Actions for recovery of costs

An initial action for recovery of the costs referred to in section 9607 of this title must be commenced—

(A) for a removal action, within 3 years after completion of the removal action, except that such cost recovery action must be brought within 6 years after a determination to grant a waiver under section 9604(c)(1)(C) of this title for continued response action; and

(B) for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action, except that, if the remedial action is initiated within 3 years after the completion of the removal action, costs incurred in the removal action may be recovered in the cost recovery action brought under this subparagraph.

42 U.S.C. § 9613(g)(2). Therefore, if the action taken is “remedial,” the statute runs from “initiation of the physical on-site construction.” If the action taken is “removal,” the statute runs from “completion of the removal action.” The term “removal” is defined in the Act as follows:

The terms “remove” or “removal” means the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under section 9604(b) of this title, and any emergency assistance which may be provided under the Disaster Relief and Emergency Assistance Act [42 U.S.C.A. § 5121 et seq.].

42 U.S.C. § 9601(23) (footnote omitted). The term “remedial” is defined as follows:

[866 F.Supp.2d 891]

The terms “remedy” or “remedial action” means those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the President determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.

42 U.S.C. § 9601(24) (footnote omitted). The classification of whether the activity was a removal action or a remedial action is determined as a matter of law and can be determined on summary judgment. Cytec Indus., Inc. v. B.F. Goodrich Co., 232 F.Supp.2d 821, 837 (S.D.Ohio 2002). As a general matter, removal actions cost less, take less time, and are geared to address an immediate release or threat of release of a hazardous substance. Id. at 833. In contrast, remedial actions are usually permanent responses that address more extraordinary environmental dilemmas. Id.

GE argues that APU cannot recover remedial costs because physical onsite construction of the remedy at each site began before June 24, 1999 and the removal action concluded prior to June 24, 2002.

APU argues that its claims for remedial costs are timely because (1) no physical on-site construction of remedial work at the sites commenced more than six years before APU filed the complaint on June 24, 2005; (2) all removal work was completed less than three years before commencement of physical on-site construction of those remedial actions; and (3) removal work has not yet been completed at the Sunnyside Yard and Wilmington Yard sites. APU argues that its claims...