Bello v. Barden Corp.

• Decision Date: 07 January 2002
• Docket Number: No. CIV. 3:01CV01531(AWT).,CIV. 3:01CV01531(AWT).
• Citation: 180 F.Supp.2d 300
• Court: U.S. District Court — District of Connecticut
• Parties: Ralph BELLO and Vera Associates Limited Partnership, Plaintiffs, v. BARDEN CORPORATION, Defendant.

180 F.Supp.2d 300

Ralph BELLO and Vera Associates Limited Partnership, Plaintiffs, v. BARDEN CORPORATION, Defendant.

No. CIV. 3:01CV01531(AWT).

United States District Court, D. Connecticut.

January 7, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ikechukwu Umeugo, Umeugo & Assoc., West Haven, CT, for Plaintiffs.

Joseph A. Wellington, Carmody & Torrance, Waterbury, CT, for Defendant.

RULING ON MOTION TO DISMISS

THOMPSON, District Judge.

The plaintiffs have filed a two-count complaint, seeking recovery of certain costs or losses incurred or suffered by them and related to an "environmental cleanup" of their property performed by the United States Environmental Protection Agency during 1998. The defendant moves to dismiss both counts pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, the defendant's motion to dismiss is being granted, but with leave to amend the complaint to include one claim being asserted by the plaintiffs but not included in the complaint, namely, a claim for recovery of water usage fees.

I. Factual Background

The plaintiffs are the owners of property located at 16-20 Elm Street in West Haven Connecticut. The plaintiffs allege that, during the period between January 9, 1984 and October 31, 1997, the plaintiffs rented this property to Robert Pattison, Sr. and certain corporations owned and/or controlled by him, namely, National Oil Services, Inc., National Oil Recycling and Environmental Services, Inc., National Tank and Construction Co., Inc., Bell Habor Environmental, Inc., and Atlantic Environmental Laboratory, Inc. (collectively, "National Oil").

The plaintiffs allege that, during the same period, the defendant delivered to National Oil 587,668 gallons of hazardous waste, contaminated waste oil and/or oil sludge or waste oil, which accumulated in various tanks and containers on the plaintiffs' property. On or about January 8, 1998, hazardous substances accumulated on the property spilled and polluted the property and the Long Island Sound.

The United States Environmental Protection Agency ("EPA") conducted a cleanup of the property between January 8, 1998 and June 30, 1998, at a cost in excess of $1,134,000. The EPA initiated proceedings under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq., as amended ("CERCLA") to recover the costs it incurred in cleaning up the property. On October 1, 1998, the EPA placed a lien on the plaintiffs' property in the amount of $1,134,000.

The EPA also sought to recover its clean-up costs from the defendant and the other persons who had delivered hazardous substances to National Oil. On August 17, 2001, the EPA commenced an action in this district against the defendant and some 400 other parties that had disposed of or arranged for the disposal of hazardous substances at National Oil, seeking to recover its response costs under CERCLA. Many of the defendants in that action, including the defendant, have accepted the EPA's settlement offer and agreed to pay their share of the agency's response costs. On September 14, 2001, a consent decree (the "Consent Decree") memorializing the settlement was lodged with the court. See United States of America v. A-1 Auto Service, Inc. et al., Civil No. 3:01CV01567 (AHN) (D.Conn.). On December 19, 2001, the EPA filed a motion to enter the consent decree.

Paragraph 20 of the Consent Decree states, in relevant part, that:

The Parties agree, and by entering this Consent Decree this Court finds, that Settling Defendants and the Settling Federal Agencies are entitled, as of the Effective Date of this Consent Decree, to protection from contribution actions or claims as provided by Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), for "matters addressed" in this Consent Decree. The "matters addressed" in this Consent Decree are Past Response Costs.

(Doc. 16, Ex. C at 7.) The definitions section of the Consent Decree provides that "Past Response Costs" shall mean "all costs, including but not limited to direct and indirect costs, that EPA or DOJ on behalf of EPA has paid at or in connection with the site through May 15, 2001, plus accrued Interest on all such costs through such date." Id. at 2. Thus, once the Consent Decree is entered, the defendant will have protection, pursuant to CERCLA § 113(f)(2), from contribution for matters addressed in the settlement.

Count One of the plaintiffs' complaint is brought under CERCLA, 42 U.S.C. §§ 9607 and 9613. Count Two of the plaintiffs' complaint asserts a state law claim for "intentional and/or reckless" conduct. In their complaint, the plaintiffs seek the following amounts as damages for the following injuries or losses:

(i) $125,910 for damage to an Abcor system;

(ii) $34,195.60 for damage to oil tanks;

(iii) $420,000 as damages for loss of rental income;

(iv) an unspecified amount as damages in connection with two failed attempts to sell the property for $1,750,000;

(v) $2,680 as damages for costs to be incurred in the future in connection with the cleanup of debris left on the property at the end of the EPA cleanup;

(vi) $12,000 as damages for costs to be incurred in the future in connection with testing the pressure in the oil tanks; and

(vii) $1,150 as damages for investigative costs incurred to determine the extent of hazardous materials on the property.

In addition, the plaintiffs assert that they are entitled to recover the respective amounts of $398.87 and $501.50, paid by them for water usage fees as part of the EPA cleanup. This assertion is made in the plaintiffs' opposition to the motion to dismiss, but no such allegation is made in the complaint. The plaintiffs contend that the EPA forwarded to their counsel a letter concerning, inter alia, the damage to the oil tanks and the water usage fees, in which the EPA stated the following:

Your client requests that EPA return the tanks to their original condition. In performing the removal work, it was determined that the only way to safely ensure optimum removal of the hazardous substances from the tanks was to create larger access ways than the tanks previously had. The access ways created were necessary to abate the hazardous substance threat and were considered a necessary part of EPA's response action. The water usage that your client contends that EPA is responsible for falls into the same category.

(Doc. 18, Ex. 1 at 2.)

Finally, the record shows, and it is not disputed, that plaintiff Bello participated in a meeting with the EPA on June 11, 1998, at which he made the following statements:

In September of 1996, I sent two registered letters to [the Connecticut Attorney General], informing him of the accumulation of hazardous materials being stored on my property in the storage tanks and in drums, and that I was very concerned.

. . . . .

In November of 1996, National Oil Services, Inc., ... signed an agreement to empty all of the storage tanks of water solubles, waste oils and sludge and to comply with the laws of the DEP ....

... Suddenly, in June of 1997, they failed to meet the requirements of the agreement they had signed ....

In September of 1997, I immediately started eviction proceedings against National Oil Services ....

On September 17, 1997, I hired Atlantic Petroleum, Inc. from New Jersey to stick the tanks and take samples of all of the storage tanks and analyze what was in the tanks. At that time, there was 423,000 gallons of waste oil and sludge.

On October 15, 1997, [the Department of Environmental Protection ("DEP")] made more inspections to retain lists of where the waste oil was being picked [up] and shipped ....

(Doc. 10, Ex. B at 17-18.)

II. Standard of Review

When deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A complaint "should not be dismissed for failure to state a claim 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, 2 L.Ed.2d 80 (1957). See also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). "The function of a motion to dismiss is `merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Mytych v. May Dept. Stores Co., 34 F.Supp.2d 130, 131 (D.Conn. 1999), quoting Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984). "The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims." United States v. Yale New Haven Hosp., 727 F.Supp. 784, 786 (D.Conn.1990) (citing Scheuer, 416 U.S. at 232, 94 S.Ct. 1683).

However, in deciding a motion to dismiss, "a court may properly look beyond the complaint to matters of public record and doing so does not convert a Rule 12(b)(6) motion to one for summary judgment." Lofton v. Bureau of Prisons, 1995 WL 341565, at *1, 57 F.3d 1077 (9th Cir. June 8, 1995); Pani, et al. v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.1998) ("It is well established that a district court may rely on matters of public record in deciding a Motion to Dismiss under Rule 12(b)(6), including case law and statutes.") (citations omitted).

III. Discussion

A. Count One — CERCLA

The plaintiffs set forth two claims in Count One. The first claim is brought under CERCLA § 107(a), i.e., 42 U.S.C. § 9607(a), and the second is a claim for contribution brought under CERCLA § 113(f)(1), i.e., 42 U.S.C. § 9613(f)(1).

CERCLA § 107 makes certain categories of persons liable for specified costs incurred...