Atl. Richfield Co. v. NL Indus.
| Decision Date | 19 August 2022 |
| Docket Number | Civil Action 20-cv-00234-NYW-KLM |
| Parties | ATLANTIC RICHFIELD COMPANY, Plaintiff, v. NL INDUSTRIES, INC., and NL ENVIRONMENTAL MANAGEMENT SERVICES, Defendants and Third-Party Plaintiffs, v. UNITED STATES OF AMERICA, EL PASO REMEDIATION COMPANY, and REDPATH USA CORPORATION, et. al., Third-Party Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Third-Party Defendant United States of America's (the “United States”) Motion to Dismiss Second Amended Third-Party Complaint [ECF 172] [#176] (the “United States Motion”) and Third-Party Defendant Redpath USA Corporation's (“Redpath”) Motion to Dismiss Second Amended Third-Party Complaint [ECF 172] or, in the Alternative, for Summary Judgment [#189] (the “Redpath Motion”).
Third-Party Defendant El Paso Remediation Company (“El Paso”) filed a Motion to Join and Adopt the United States Motion [#184], which was granted by the Court. See Order [#203] at 2. Third-Party Plaintiffs NL Industries, Inc. and NL Environmental Management Services (collectively, “NL”) filed a Response [#188-1] in opposition to the United States Motion [#176] (the “United States Response”),[1] and the United States filed a Reply [#192] (the “United States Reply”). El Paso filed a Motion for Leave to File Reply [#193], which was granted by the Court, and a Reply [#193-1] (the “El Paso Reply”). See Order [#203] at 2.
NL further filed a Response [#191] in opposition to the Redpath Motion [#189] (the “Redpath Response”), and Redpath filed a Reply [#198] (the “Redpath Reply”).
The United States Motion [#176] and the Redpath Motion [#189] have been referred to the undersigned pursuant to 28 U.S.C § 636(b)(1) and D.C.COLO.LCivR 72.1. See [#185 #190]. The Court has reviewed the Motions, the Responses, the Replies, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the United States Motion [#176] and the Redpath Motion [#189] be GRANTED.
“This case arises out of claims brought by Atlantic Richfield Company (“ARCO”) against NL alleging that ARCO has incurred costs and will incur future costs in responding to releases and threatened releases of hazardous substances at certain facilities and locations within the Rico-Argentine Site, near Rico, Dolores County, Colorado (the “ARCO Site”).” Second Am. Third-Party Compl. [#172] ¶ 2.
NL is the alleged successor to St. Louis Smelting & Refining Co. and Rico Mining and Reduction Company, which conducted operations at the ARCO Site prior to 1943. See id. ¶¶ 7-8. NL alleges that it has “never owned, operated, or conducted any activities at the ARCO Site.” Id. ¶ 6.
El Paso is a successor to “companies that owned property or operated or arranged for the disposal of hazardous substances at the ARCO Site ....” Id. ¶ 10.
The Unites States “includes the U.S. Department of the Interior acting through the Bureau of Land Management . . ., the U.S. Department of Agriculture acting through the the U.S. Forest Service . . ., and other current and former departments, agencies, and instrumentalities of the United States government (collectively, the “United States”). Id. ¶ 30. The United States has owned land at the ARCO Site “where there has been a release of hazardous substances and where hazardous substances have come to be located.” Id. ¶ 32.
Redpath is a successor to J.S. Redpath Construction Company, which built “various drill stations at the ARCO Site in the 1980s.” Id. ¶ 40. NL alleges that Redpath “is responsible as an operator at the ARCO Site . . . at the time of disposal of hazardous substances.” Id.
In response to the release of hazardous substances within the ARCO Site, the Environmental Protection Agency (the “EPA”) issued a Unilateral Administrative Order (the “UAO”) effective March 23, 2011, against ARCO. See id. ¶¶ 2, 48, 88. Following this order, ARCO brought a civil action against NL pursuant to the Comprehensive Environmental, Response, Compensation and Liability Act (“CERCLA”) § 107(a), 42 U.S.C. § 9607(a) (“Section 107(a)”). Id. ¶ 90. ARCO's civil action against NL seeks to recover “unreimbursed costs that ARCO has incurred or will incur in response to releases or threatened release[s] of hazardous substances at the ARCO Site” on the basis of NL being a potentially responsible party (“PRP”). Id. After initiating this action, ARCO entered into an Administrative Settlement Agreement and Order on Consent for Removal Action (the “AOC”) with the EPA, resolving ARCO's liability with the United States relating to the ARCO Site as imposed by the UAO. See generally AOC [#152-1].[3] Afterwards, the Court granted ARCO leave to file an amended complaint that dismissed ARCO's Section 107(a) claim and replaced it with a contribution claim made pursuant to CERCLA § 113(f), 42 U.S.C. § 9613(f) (“Section 113(f)”). See Recommendation [#164] at 12; Order [#170] at 4 (accepting and adopting the Recommendation [#164]).
In the Second Amended Third-Party Complaint [#172], NL asserts two claims against the United States, El Paso, and Redpath (collectively, the “Third-Party Defendants”): (1) contribution pursuant to Section 113(f) if NL is held liable to ARCO; and (2) declaratory relief pursuant to CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2) (“Section 113(g)”) and 28 U.S.C. § 2201 stating that if NL is found to be liable to ARCO, the Third-Party Defendants are liable for contribution for their equitable share of future response costs or damages. Id. ¶¶ 62-106. The Third-Party Defendants seek dismissal of the Second Amended Third-Party Complaint [#172] for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). United States Motion [#176] at 1; Redpath Motion [#189] at 2. In the event that the Court considers matters outside of the pleadings, Redpath further moves for entry of summary judgment in its favor regarding NL's claims against Redpath. Redpath Motion [#189] at 2.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact to state a claim for relief that is plausible on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) .
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Id. (brackets in original; internal quotation marks omitted).
“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that [a] defendant has acted unlawfully.” Id. (citation omitted). To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” a factual allegation has been stated, “but it has not show[n] . . . that the pleader is entitled to relief,” as required by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (citation and internal quotation marks omitted).
The United States and El Paso argue that “NL[ ] has failed to meet CERCLA's statutory prerequisites for its third-party contribution claim.” United States Motion [#176] at 6. The United States and El Paso further argue that NL “has no claim for contribution as a matter of common law because, as a contribution defendant NL Industries is potentially liable only for its equitable share.” Id. at 8. Redpath argues that NL has not “pled facts sufficient to establish that Redpath, at the time of disposal of any hazardous substance, operated a facility at which hazardous substances were disposed of.” ...
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