Barmet Aluminum Corp. v. Doug Brantley & Sons, Inc.

• Citation: 914 F. Supp. 159
• Decision Date: 27 December 1995
• Docket Number: Civ. A. No. 4:95-CV-93-M.
• Court: U.S. District Court — Western District of Kentucky
• Parties: BARMET ALUMINUM CORPORATION, Plaintiff, v. DOUG BRANTLEY & SONS, INC., Doug Brantley Excavating Co., Douglas L. Brantley, Ronald Brantley and Virginia Brantley, Defendants.

914 F. Supp. 159

BARMET ALUMINUM CORPORATION, Plaintiff, v. DOUG BRANTLEY & SONS, INC., Doug Brantley Excavating Co., Douglas L. Brantley, Ronald Brantley and Virginia Brantley, Defendants.

Civ. A. No. 4:95-CV-93-M.

United States District Court, W.D. Kentucky, Owensboro Division.

November 22, 1995.

Order Denying Reconsideration December 27, 1995.

Kim Burke, Charles H. Pangburn, III, Robert A. Bilott, Taft, Stettinius & Hollister, Cincinnati, OH, for plaintiff.

J. Anthony Goebel, Clinton J. Elliott, Wyatt, Tarrant & Combs, Louisville, KY, James D. Ishmael, Wyatt, Tarrant & Combs, Lexington, KY, George L. Seay, Jr., Joseph J. Zaluski, Lesly A.R. Davis, Wyatt, Tarrant & Combs, Frankfort, KY, for Doug Brantley & Sons, Inc., Doug Brantley Excavating Co., Douglas L. Brantley, Ronald Brantley, Virginia Brantley.

MEMORANDUM OPINION

McKINLEY, District Judge.

This matter is before the Court on a motion by Defendants, Doug Brantley & Sons, Inc., Doug Brantley Excavating Company, Douglas L. Brantley, Ronald Brantley, and Virginia Brantley, to dismiss Counts I and III of Plaintiff's complaint pursuant to Fed. R.Civ.P. 12(b)(6) DN 6 and on a motion by Defendants, Douglas Brantley, Ronald Brantley, Virginia Brantley, and Doug Brantley Excavating Company hereinafter "non-incorporated defendants", for dismissal of Plaintiff's complaint in its entirety DN 6. Fully briefed, this matter is now ripe for decision. For the reasons set forth below, Defendants' motions are denied.

I. Standard of Review

In deciding a Fed.R.Civ.P. 12(b)(6) motion to dismiss, the complaint must be liberally construed and viewed in the light most favorable to Plaintiff. See Federal Procedure: Lawyers Edition § 62:467 (1984 & Supp.1994); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Davis H. Elliot Co., Inc. v. Caribbean Utilities Co., Ltd., 513 F.2d 1176 (6th Cir.1975). The complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his 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). See also Hartford Fire Insurance Co. v. California, 509 U.S. 764, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993).

II. FACTS

This is a civil action for cost recovery, contribution, declaratory and monetary relief brought pursuant to Section 107 and 113 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (collectively hereinafter "CERCLA"), 42 U.S.C. § 9607 and § 9613; the Declaratory Judgment Act, 28 U.S.C. § 2201 and § 2202; and Kentucky statutory and common law.

On May 17, 1995, Plaintiff, Barmet Aluminum, filed its complaint against Defendants seeking recovery from Defendants for the response costs and damages Plaintiff incurred arising out of the release and/or threatened release of hazardous substances at an abandoned industrial landfill site known as the Brantley Landfill Site (hereinafter "Site"), and a declaration of Defendants' liability for future response costs and damages that Plaintiff will incur at, and in connection with, the Site.

Beginning in 1988, the Site was proposed for addition to the Superfund National Priorities List as a facility requiring cleanup under CERCLA, and in 1989 the Environmental Protection Agency ("EPA") notified Plaintiff that the EPA considered it a potentially responsible party for costs incurred in response to the release or threatened release of hazardous substances at the Site. Plaintiff entered into an administrative order by consent in which it agreed to perform certain response activities between 1992 and 1994, including the performance of a remedial investigation and a feasibility study. After issuance of the final remedial investigation and feasibility study reports, the EPA issued notice of the proposed plan for remedial action. After expiration of the applicable notice period, the EPA issued a final decision on the remedial action. On March 31, 1995, the EPA issued to Plaintiff an Unilateral Administrative Order, pursuant to § 106 of CERCLA, ordering Plaintiff to perform the work.

III. PRIVATE COST-RECOVERY UNDER SECTION 107

Defendants claim that Plaintiff is barred from asserting (1) a claim against them for private-party cost-recovery under § 107 of CERCLA, Count I of the Complaint, and (2) from asserting a declaratory judgment confirming Defendants' liability under § 107, Count III of the Complaint.

Section 107(a) imposes liability on four classes of potentially responsible parties ("PRPs"): (1) the owner and operator of the facility; (2) any person who owned or operated the facility at the time of disposal of any hazardous substance; (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment of hazardous substances owned or possessed by that person; and (4) any person who accepted any hazardous substances for the transport to disposal or treatment sites selected by that person. 42 U.S.C. § 9607(a)(1)-(4). Section 107(a) provides an implied cause of action for private parties to seek recovery of cleanup costs. Key Tronic Corp. v. United States, ___ U.S. ___, ___, 114 S.Ct. 1960, 1966, 128 L.Ed.2d 797 (1994). Under § 107(a), PRPs are strictly liable if there was a release or threat of a release of a hazardous substance at a facility and a person incurred necessary response costs consistent with the national contingency plan ("NCP"). 42 U.S.C. § 9607(a). See also 42 U.S.C. § 9601(32); Bethlehem Iron Works, Inc. v. Lewis Industries, Inc., 891 F.Supp. 221 (E.D.Pa.1995); United States v. Monsanto Co., 858 F.2d 160, 167 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989) (interpreting § 107(a) as imposing strict liability). Some courts have held that § 107(a) liability is joint and several.

To alleviate the potentially unfair burden that joint and several liability may cause, Congress created a right of contribution in the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613 (1986). Section § 113(f), provides in relevant part as follows:

Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action ... under section 9607(a) of this title.... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under ... section 9607 of this title.

See Bethlehem Iron Works, Inc., 891 F.Supp. at 223.

Defendants argue that only an innocent party may bring a cost recovery action under § 107(a). Defendants maintain that Plaintiff is a PRP, and as such, must proceed under § 113(f), not § 107(a). Plaintiff contends that § 113 is not the exclusive remedy and that PRPs' are not precluded from utilizing § 107 to recover their response costs. The issue before the Court is whether a liable, or potentially liable party, is limited to a contribution action under 42 U.S.C. § 9613 (§ 113 of CERCLA) or may the party also bring an action to recover response costs under 42 U.S.C. § 9607 (§ 107 of CERCLA). At the present time, the Sixth Circuit has not addressed this issue.

Defendants cite several cases that specifically hold that a PRP may not assert a § 107(a) cost recovery action against another PRP, but may seek only a contribution action under § 113(f). See United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96 (1st Cir.1994); United States v. ASARCO, Inc., 814 F.Supp. 951 (D.Colo. 1993), cert. denied ___ U.S. ___, 115 S.Ct. 1176, 130 L.Ed.2d 1128 (1995); City and County of Denver v. Adolph Coors Co., 829 F.Supp. 340, 346 (D.Colo.1993); Transtech Industries, Inc. v. A & Z Septic Clean, 798 F.Supp. 1079 (D.N.J.1992), cert. denied, ___ U.S. ___, 114 S.Ct. 2692, 129 L.Ed.2d 823 (1994); Dravo Corp. v. Zuber, 804 F.Supp. 1182, 1187 (D.Neb.1992); Avnet, Inc. v. Allied-Signal, Inc., 825 F.Supp. 1132 (D.R.I. 1992), aff'd, 13 F.3d 1222 (1994). See also United States v. Colorado & Eastern R. Co., 50 F.3d 1530 (10th Cir.1995); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761 (7th Cir. 1994); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir.1989).

The First Circuit in United Technologies found the distinction between the two legal actions was important because the statute of limitations for the cost recovery action under § 107(a) 42 U.S.C. § 9607(a) is six years, while the statute of limitations for the contribution action under § 113(f) 42 U.S.C. § 9613(f) is three. See 42 U.S.C. 9613(g)(2) & (g)(3). Similarly, Defendants argue that the distinction in this case is equally important because liability under § 107(a) is joint and several and applied regardless of the degree of fault, while liability pursuant to § 113(f) is not.

Defendants request the Court to adopt the reasoning of the First Circuit in United Technologies, 33 F.3d 96, which found that CERCLA differentiates between "actions for recovery of ... costs" and "actions for contribution." In reaching the conclusion, the Court began by defining the term "contribution" found in § 113(f). The court defined "contribution" as an action by and between severally liable parties for an appropriate division of payment that one of the members has been compelled to make. In interpreting the word "contribution" in terms of Section 113(f), the First Circuit concluded that it referred to an action by a responsible party to recover from another responsible party that portion of its costs in excess of its pro rata share. Id. at 103. The Court found that the two types of actions are "distinct and do not overlap," distinguishing the two as follows:

The two statutes of limitations

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