Bunger v. Hartman

• Decision Date: 05 June 1992
• Docket Number: No. 91-14199-CIV.,91-14199-CIV.
• Citation: 797 F. Supp. 968
• Parties: Richard E. BUNGER and REB of Florida, Inc., Plaintiffs, v. Jack M. HARTMAN and Texaco, Inc., Defendants.
• Court: U.S. District Court — Southern District of Florida

797 F. Supp. 968

Richard E. BUNGER and REB of Florida, Inc., Plaintiffs, v. Jack M. HARTMAN and Texaco, Inc., Defendants.

No. 91-14199-CIV.

United States District Court, S.D. Florida.

June 5, 1992.

Roy Jordan, Jr., West Palm Beach, Fla., and Jeff Harmon of Cors & Bassett, Cincinnati, Ohio, for plaintiffs.

Kirk Burns, Miami, Fla., for Texaco, Inc.

Jordan Fields, of Fields & Wilkinson, P.A., Stuart, Fla., for Jack M. Hartman.

ORDER ON MOTIONS TO DISMISS

PAINE, District Judge.

This matter comes before the court on the Defendant's, Texaco, Inc. ("Texaco"), Motion to Dismiss (DE 7) and the Defendant's, Jack M. Hartman ("Hartman"), Amended Motion to Dismiss (DE 11). Having reviewed the record, the memoranda of counsel and relevant authorities, the court enters the following order.

Background

According to the Plaintiffs, Richard E. Bunger ("Bunger") and REB of Florida, Inc. ("REB"), Texaco operated, from 1965 to 1984, a gasoline service station and bulk petroleum storage facility at 728 North Federal Highway in Stuart, Florida. Thereafter, Texaco assigned its lease to Hartman who remained in possession until the Plaintiffs took control of the property in 1984. During this period, the Defendants allegedly dumped and spilled petroleum and other products which ultimately migrated through the underlying soil and groundwater.

In September of 1988, the properties' contamination was discovered by the Plaintiffs who reported it to the Florida Department of Environmental Regulation ("DER"). DER, in turn, required the Plaintiffs to conduct tests on the property and prepare a Contamination Assessment Report ("CAR").¹ On September 20, 1991, Bunger and REB commenced this action seeking recovery of costs incurred in conducting tests, preparation of the CAR, as well as, future costs related to remediation of the property.²

Motions to Dismiss: Legal Standard

Pre-Answer Motions, such as a Motion to Dismiss for Failure to State a Claim or a Motion for More Definite Statement, may raise two distinct issues: (1) whether the Plaintiff has stated his or her purported claim with sufficient detail; and (2) whether the claim as stated is recognized by law.

As to the first issue, that is, factual detail, the Federal Rules of Civil Procedure are very liberal. Rule 8(a) provides that the Complaint need only contain "a short and plain statement of the claim...." "All that is required is that the defendant be on notice as to the claim being asserted against him and the grounds on which it rests." Sams v. United Food & Commercial Workers Int'l Union, 866 F.2d 1380, 1384 (11th Cir.1989) (collecting cases). The parties may, through discovery, inquire further into the details underlying the claim. Bazal v. Belford Trucking Co., Inc., 442 F.Supp. 1089, 1102 (S.D.Fla.1977); see generally 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1202 (2d ed. 1990).

The instant Motion, however, concerns the latter issue: the viability of the Plaintiff's cause of action. In this regard, the court must first accept all of the allegations in the Complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Thomas v. Burlington Industries, Inc., 769 F.Supp. 368, 370 (S.D.Fla.1991). Consideration of matters beyond the four corners of the Complaint is improper, Milburn v. United States, 734 F.2d 762 (11th Cir.1984); Thomas, 769 F.Supp. at 370, and a Motion to Dismiss should not be granted unless the Plaintiff can prove no set of facts in support of his claim entitling him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Thus, a Complaint may not be dismissed because the Plaintiff's claims do not support the legal theories on which he relies because the court must determine if the allegations form a basis for relief on any possible theory. See Robertson v. Johnston, 376 F.2d 43 (5th Cir.1967).³

CERCLA and Private Cost Recovery Actions

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA" or "Act"), 42 U.S.C. §§ 9601-9657, to "provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites." Pub.L. No. 96-510, 94 Stat. 2767 (1980). In furtherance of these objectives, a bifurcated mechanism was created to promote the cleanup of waste sites, spills and hazardous substances released into the environment: The federal government was empowered to respond to environmental hazards through the creation of Superfund, 42 U.S.C. §§ 9604-05, 9611-12, while private parties were permitted to institute actions to recover "response costs" for the cleanup of sites from those responsible for the hazard, 42 U.S.C. § 9607(a).

42 U.S.C. § 9607(a) delineates who may commence a private cause of action under CERCLA and the types of damages recoverable. It provides:

(a) Notwithstanding any other provision of rule of law, and subject only to the defenses set forth in subsection (b) of this section—

(1) the owner and operator of a vessel or facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which cause the incurrence of response costs, of hazardous substance, shall be liable for —

(A) all costs of removal or remedial action incurred by the United States Government or a State or Indian tribe not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;

(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and

(D) the costs of any health assessment or health effects study carried out under section 104(i).

The present Motions do not present a challenge to the Plaintiffs' standing to bring this action; rather, dismissal of the Complaint is sought because of two alleged pleading deficiencies. First, the Defendants argue that CERCLA does not apply since "hazardous substances" are not involved, that is, waste allegedly dumped or spilled is either petroleum or a fraction thereof, substances excluded from the Act's coverage. Second, Texaco and Hartman contend that Bunger and REB's Complaint is deficient as they have failed to allege consistency with the National Contingency Plan.

Hazardous Substances and the Petroleum Exclusion

A private party must prove four elements before they can prevail in a cost recovery action: (1) the site where the "hazardous substance" is found is a "facility," as per CERCLA's definition of that term, 42 U.S.C. § 9601(9); (2) there has been a "release" or "threatened release" of a "hazardous substance" from the facility, 42 U.S.C. § 9607(a)(4); (3) the "release" or "threatened release" has caused the private party to incur "response costs" that were "necessary" and "consistent with the national contingency plan," 42 U.S.C. § 9607(a)(4)(A) and (B); and (4) the Defendants fall within one the four classes of parties subject to the liability under the Act. 3550 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355, 1358 (9th Cir. 1990); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989). Although the allegations necessary to state a cost recovery action under CERCLA presents a matter of first impression in this Circuit, the undersigned believes that each element of proof must be alleged in the Complaint.

The question raised by the Defendants' first ground for dismissal requires resolution of a more rudimentary issue: What is a hazardous substance? For guidance the court looks to 42 U.S.C. § 9601(14), that portion of the Act which defines "hazardous substances." It includes:

(A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to 9602 of this title; and (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clear Air Act, and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken pursuant to section 2606 of Title 15. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas liquids, liquified natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).

42 U.S.C. § 9601(14) (emphasis added).

The underscored portion of Section 9601(14) has been interpreted as creating a "petroleum exclusion" which has been applied by the Environmental Protection Agency ("EPA")⁴ and federal courts "to remove from the coverage of CERCLA those otherwise hazardous substances which are inherent in petroleum, but not hazardous substances that are added to, or mixed with, a petroleum product...