Arawana Mills Co. v. United Technologies Corp., Civ. A. No. 5:91CV00711 (JAC).

• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Writing for the Court: John B. Nolan, Scott P. Moser, Ann McClure, Day, Berry & Howard, Hartford, Conn., for defendant
• Citation: 795 F. Supp. 1238
• Parties: ARAWANA MILLS CO. v. UNITED TECHNOLOGIES CORP.
• Docket Number: Civ. A. No. 5:91CV00711 (JAC).
• Decision Date: 07 May 1992

795 F. Supp. 1238

ARAWANA MILLS CO.
v.
UNITED TECHNOLOGIES CORP.

Civ. A. No. 5:91CV00711 (JAC).

United States District Court, D. Connecticut.

May 7, 1992.

795 F. Supp. 1239

COPYRIGHT MATERIAL OMITTED

795 F. Supp. 1240

Douglas A. Cohen, Peter M. Nolin, Franca L. DeRosa, Schatz & Schatz, Ribicoff & Kotkin, Stamford, Conn., Ira B. Grudberg, Steven D. Ecker, Jacobs, Grudberg, Belt & Dow, P.C., New Haven, Conn., for plaintiff

John B. Nolan, Scott P. Moser, Ann McClure, Day, Berry & Howard, Hartford, Conn., for defendant.

RULING ON MOTION TO DISMISS

JOSÉ A. CABRANES, District Judge:

Pending before the court is defendant's Motion to Dismiss (filed Dec. 12, 1991), which was submitted for decision after oral argument on February 3, 1992.

BACKGROUND

Plaintiff Arawana Mills Company ("Arawana") owns property on Newell Street in Southington, Connecticut ("the Property"), which is described in paragraph 5 of the Complaint (filed Oct. 21, 1991) ("Complaint"). Prior to 1963, it was undeveloped farmland. Since May of that year, defendant United Technologies Corporation ("UTC") has had sole and continuous possession of the Property pursuant to various lease agreements with plaintiff. Defendant's possession of the Property is currently based on a lease dated November 2, 1991 (the "Lease"). The Lease term expires on December 31, 1993. There appears to be no dispute over the validity or the terms of the Lease.

There is also no dispute that defendant overhauls and services jet engines on the Property, which involves the storage and handling of hazardous substances. See Memorandum of Law in Support of Defendant's Motion to Dismiss the Complaint (filed Dec. 20, 1991) ("Defendant's Memorandum") at 1-2 n. 1; Complaint ¶¶ 10, 11.

Plaintiff alleges that during its occupancy of the property, defendant has spilled, leaked and discharged hazardous substances

795 F. Supp. 1241

into the soil and groundwater on the Property, Complaint ¶¶ 11-13, and that these activities have significantly contaminated its Property in violation of federal and state law. Plaintiff's Brief in Opposition to Defendant's Motion to Dismiss the Complaint (filed Jan. 3, 1992) ("Plaintiff's Memorandum") at 3. Plaintiff contends that defendant's unlawful waste disposal practices and contamination of the Property have resulted in "ongoing actions" involving the State of Connecticut Department of Environmental Protection ("DEP") and the Environmental Protection Agency ("EPA")

First, plaintiff asserts that defendant filed a lagoon closure plan entitled Interim Status Partial Closure Plan (the "Plan") with the DEP pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. ("RCRA") and applicable regulations. Complaint ¶ 14. The Plan has apparently not yet been approved by the DEP, but it contemplates, among other things, that the lagoon on the Property will be covered with an impervious layer and will contain a groundwater monitoring and containment system. Complaint ¶¶ 14-16.

Second, plaintiff contends that in 1990 the EPA instituted an action against defendant for the alleged violation of state and federal laws regarding the generation, treatment, storage and disposal of hazardous waste at eight of its facilities, including the Property. Complaint ¶ 18 (referring to United States v. United Technologies, Civil Action No. H-90-715 (JAC), brought pursuant to RCRA, 42 U.S.C. § 6928(a)).¹

Plaintiff does not contend that the federal government has initiated or requested an investigation or cleanup of the Property pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended, 42 U.S.C. § 9601 et seq., or that the EPA has issued any notices to potentially responsible parties ("PRPs") for the cleanup of the Property under 42 U.S.C. § 9607.² Nor does plaintiff claim that the Property is listed on the National Priorities List ("NPL") of contaminated sites. 40 C.F.R. § 300, App. B (1991).

However, because of the alleged contamination of the Property and defendant's alleged failure to assure plaintiff that the Property will be completely cleaned up by December 31, 1993 (the date of the expiration of the Lease), plaintiff contends that it has begun to incur costs investigating, monitoring, assessing, evaluating and responding to the release and/or threat of release of hazardous substances on the Property, and that it will continue to incur costs necessary to clean up soil and groundwater contamination. Plaintiff's Memorandum at 6. Accordingly, plaintiff in this action seeks a declaratory judgment and reimbursement of response costs pursuant to CERCLA (First Count). The remaining

795 F. Supp. 1242

eight counts of the Complaint are based on a variety of state common law and statutory theories: reimbursement of costs pursuant to Conn.Gen.Stat. § 22a-452 (Second Count); breach of contract (Third Count); specific performance (Fourth Count); waste (Fifth Count); nuisance and negligent nuisance (Sixth and Seventh Counts); strict liability in tort for engaging in abnormally dangerous activities (Eighth Count); and violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn.Gen.Stat. § 42-110a, et seq. (Ninth Count)

Defendant's motion seeks dismissal of the entire Complaint. Defendant argues that the First Count should be dismissed because no justiciable dispute exists between the parties as to CERCLA liability and plaintiff has alleged no reimbursable "response costs" as defined by CERCLA. Defendant contends that the remaining eight counts should be dismissed because (1) each of the state claims either "raises a novel or complex issue" or "substantially predominates" over the federal claims, such that the collection of state claims overwhelms even the most generous interpretation of the federal component of the action, see 28 U.S.C. § 1367(c)(1) & (2),³ or because (2) none of the state law claims state a claim upon which relief can be granted.

DISCUSSION

When considering a motion to dismiss the court accepts all factual allegations in the complaint as true and draws inferences from these allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Corcoran v. American Plan Corp., 886 F.2d 16, 17 (2d Cir.1989). Dismissal is not warranted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Patton v. Dole, 806 F.2d 24, 30 (2d Cir. 1986).

I. Response Costs

The First Count of the Complaint is a CERCLA claim for response costs under 42 U.S.C. § 9607(a)(4)(B) ("section 9607(a)(4)(B)").⁴ Defendant contends that plaintiff's claim for response costs must be dismissed because the allegations are not sufficiently particular and because there is no way to determine that such response costs are consistent with the National Consistency Plan, 40 C.F.R. Part 300 ("NCP"). Defendant's Memorandum at 21-25. For the reasons stated below, defendant's motion to dismiss the First Count on these grounds is denied.

A.

In order to state a claim for response costs under section 9607(a),

a plaintiff must allege that (1) the waste disposal site is a "facility" within the meaning of 42 U.S.C. § 9601(9); (2) a "release" or "threatened release" of any "hazardous substance" from the facility has occurred, id. § 9607(a)(4); and (3) such "release" or "threatened release" has caused the plaintiff to incur response costs that are "consistent with the national contingency plan," id. §§ 9607(a)(4) & (a)(4)(B).

795 F. Supp. 1243

Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989); see also New York v. Shore Realty Corp., 759 F.2d 1032, 1043 (2d Cir.1985). In addition, the defendant must qualify as one of four categories of "covered persons" subject to CERCLA liability. Id.; Ascon Properties, 866 F.2d at 1152.⁵

The allegations of the Complaint state a claim under section 9607(a) upon which relief can be granted. First, plaintiff has alleged, and UTC does not dispute, that UTC "continues to be an `operator' of the facility on the Property as defined by 42 U.S.C. § 9601(20)(A)." Complaint ¶ 26; Defendant's Memorandum at 12 n. 8. Therefore, plaintiff has properly alleged, and defendant does not dispute, that UTC is a "covered person" subject to CERCLA liability.

Second, plaintiff has alleged that "the Property was and is a `facility', as defined by 42 U.S.C. § 9601(9), where hazardous substances have been and are deposited, stored, disposed of or placed or otherwise come to be located." Complaint ¶ 27. Indeed, defendant admits that "because it handles and temporarily stores hazardous substances at the Overhaul & Repair facility, UTC would be deemed to be operating a `facility' as defined by CERCLA." Defendant's Memorandum at 12 n. 8; see also id. at 1-2 n. 1 ("The Overhaul & Repair metal finishing operations, among others, involve the storage and handling of hazardous substances.").

Third, plaintiff alleges that "during UTC's occupancy of the Property, hazardous substances were released upon and under the Property, within the meaning of 42 U.S.C. § 9601(22)...." Complaint ¶ 28. Specifically, plaintiff claims that "hazardous substances were spilled, leaked, pumped, poured, emitted, emptied, discharged, injected, escaped, leached, dumped and/or disposed of upon the Property." Id.

Fourth, and finally, plaintiff alleges that "as a result of the releases and the threat of further releases, Arawana has paid for action including, but not limited to, investigation, study, and assessment of the soil and groundwater contamination, which actions constitute a `response' pursuant to 42 U.S.C. § 9601(23) through (25)." Id. ¶ 29. Investigation, study, and assessment of contamination constitute "response" costs within the meaning of CERCLA. See Shore Realty, 759 F.2d at...