Carrier Corp. v. Piper
| Decision Date | 30 September 2006 |
| Docket Number | No. 05-2307 Ml/V.,05-2307 Ml/V. |
| Citation | 460 F.Supp.2d 827 |
| Parties | CARRIER CORPORATION, Plaintiff, v. Paul P. PIPER, Jr., et al., Defendants. |
| Court | U.S. District Court — Western District of Tennessee |
Joey Miranda, Robinson & Cole LLP, Hartford, CT, John A. Poakeart, Pamela Elkow, Robinson & Cole, LLP, Stamford, CT, Michael E. Keeney, Cheryl R. Estes, Thomason Hendrix Harvey Johnson & Mitchell, Memphis, TN, for Plaintiff.
David C. Wade, Adam Calhoun Simpson, Martin Tate Morrow & Marston, Allen T. Malone, Burch Porter & Johnson, Charles C. Harrell, Charles F. Morrow, Michael D. Fitzgerald, Butler Snow O'Mara Stevens & Canada, PLLC, Memphis, TN, for Defendants.
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT QUANEX'S MOTION TO DISMISS; ORDER DENYING IN PART AND GRANTING IN PART PIPER DEFENDANTS' MOTION TO DISMISS; AND ORDER DENYING DEFENDANT LUND'S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Quanex Corporation's ("Quanex") Motion to Dismiss Amended Complaint, filed September 13, 2005. Plaintiff Carrier Corporation ("Plaintiff' or "Carrier") responded on October 13, 2005, and Quanex filed reply briefs on September 20, 2005, and November 8, 2005. Also before the Court is the Motion to Dismiss Plaintiff Carrier's First Amended Complaint, filed by the Piper Defendants on November 23, 2005.1 Plaintiff responded in opposition on December 23, 2005, and the Piper Defendants filed their reply on January 10, 2006. The final motion before the Court is Defendant Lund Coating Technologies, Inc.'s ("Lund") Motion for Summary Judgment, filed November 7, 2005. Plaintiff filed its opposition on December 14, 2005, and Lund filed its reply on December 30, 2005. For the following reasons, the Court (1) DENIES IN PART AND GRANTS IN PART Quanex's Motion to Dismiss Amended Complaint; (2) DENIES IN PART AND GRANTS IN PART the Piper Defendants' Motion to Dismiss Plaintiff Carrier's First Amended Complaint; and (3) DENIES Lund's Motion for Summary Judgment.
The instant lawsuit arises out of Plaintiffs asserted need to remediate chromium discovered at the Town of Collierville's ("Town's") municipal water wells, Water Plant 2 ("Water Plant 2"), that Carrier alleges has impacted its own trichloroethylene ("TCE") remediation operations.2 Plaintiff seeks to recover past and future response costs, damages, and other relief "relating to the deposition, release and disposal of chemical liquids or solid, semisolid or liquid wastes or hazardous wastes or `hazardous substances' ... at, on or under certain property located at or near 719 Piper Street, Collierville, Tennessee (the `Smalley-Piper Site')." (First Am. Compl. ¶ 1.) According to Carrier, each of the Defendants is a current or past owner and/or operator of industrial manufacturing or other business operations at the Smalley-Piper Site. (Id. ¶ 37.)
Carrier has been manufacturing heating and air conditioning equipment at its property located at 97 Byhalia Road, Collierville, Tennessee (the "Carrier Property") since the late 1960s. (Id. ¶ 34-35.) In July 1986, TCE was discovered in Water Plant 2. Water Plant 2 is located adjacent to Carrier Property. (Id. ¶ 41.) In response to the discovery of the TCE release, the United States Environmental Protection Agency ("USEPA") issued a Record of Decision ("ROD") on September 2, 1992 (Id. ¶ 43) and on February 11, 1993, the USEPA issued a Unilateral Administrative Order for Remedial Design and Remedial Action ("UAO") to Carrier. (Id. ¶ 42). Pursuant to the UAO, Carrier has implemented investigative and remedial steps in order to address the TCE contamination in the soil and groundwater at Water Plant 2 and Carrier Property, and, according to Carrier, it will have to complete additional work related to TCE contamination in the future. (Id. ¶ 43.) In particular, under the ROD, Carrier must maintain control over the TCE contamination in the groundwater by pumping and treating the groundwater through Water Plant 2. (Id. ¶ 44.) Under an agreement entered in April 1996 between Carrier and the Town of Collierville ("Town"), once Carrier treats the TCE, the treated water would be introduced into the Town's potable water supply. (Id. ¶ 45.)
In April 2003, the Town informed Carrier that it had found chromium in Water Plant 2. (Id. ¶ 46.) As a result of the presence of unacceptable levels of chromium, the Town shut down Water Plant 2 in December 2003. (Id. ¶ 47.) Since then, the Town and Carrier have entered into an Interim Agreement whereby Carrier would discharge treated groundwater from Water Plant 2 into the Town's publicly owned treatment works ("POTW"). (Id. ¶ 48.) Carrier claims that it is required to treat the groundwater for chromium in order to discharge to the POTW (Id. ¶ 48) and that it has incurred substantial costs in the discharging of treated water from Water Plant 2 to the POTW, and in researching and implementing options for treating the chromium in the water at Water Plant 2. (Id. ¶ 50-51).
On September 23, 2005, the USEPA proposed listing the Smalley-Piper Site on the National Priorities List ("NPL") for chromium contamination. The Smalley-Piper Site was listed on the NPL on April 27, 2005. (Id. ¶ 52.) Also, chromium has been identified as a substance historically used by Defendants and/or third parties in the course of business operations at the Smalley-Piper Site. (Id. ¶ 53.) According to Carrier, it is the chromium originating at the Smalley-Piper Site which has migrated to Water Plant 2 and surrounding properties. (Id. ¶ 55.) Further, according to Carrier, neither chromium nor any similar substance was ever disposed, discharged, spilled, or released at the Carrier Property. (Id. ¶ 56.) Finally, Carrier believes that it is or may be required by the USEPA and/or the Tennessee Department of Environmental Conservation to investigate and remediate the chromium. (Id. ¶ 57.)
Carrier brings this action primarily under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), The Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. § 9601 et seq. It seeks to recover the costs it has and will incur related to its investigation and remediation of chromium. Carrier pleads eight causes of action: (1) cost recovery pursuant to CERCLA § 107(a), 42 U.S.C. § 9607(a); (2) contribution pursuant to CERCLA § 113(f), 42 U.S.C. § 9613(f); (3) declaration of Defendant's obligation to reimburse Carrier "for response costs already incurred and to be incurred ... for which Defendants are liable" under Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 9613(g)(2); (4) negligence; (5) negligence per se pursuant to the Tennessee Safe Drinking Water Act, Tenn.Code Ann. § 68-221-711(4); (6) negligence per se pursuant to the Tennessee Hazardous Waste Management Act, Tenn.Code Ann. § 68-212-105(1); (7) public nuisance; and (8) res ipsa loquitur.
A. Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss the plaintiffs complaint "for failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, a court must treat all of the well-pleaded allegations of the complaint as true. Saylor v. Parker Seal Co., 975 F.2d 252, 254 (6th Cir.1992). Furthermore, the court must construe all of the allegations in the light most favorable to the non-moving party. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). "A court may dismiss a complaint [under Rule 12(b)(6)] only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
A. Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). So long as the movant has met its initial burden of "demonstrat[ing] the absence of a genuine issue of material fact," Celotex, 477 U.S. at 323, 106 S.Ct. 2548, and the nonmoving party is unable to make such a showing, summary judgment is appropriate. Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989). In considering a motion for summary judgment, "the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion." Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
When confronted with a properly-supported motion for summary judgment, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.CIV.P. 56(e); see also Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 250 (6th Cir.1998). A genuine issue of material fact exists for trial "if the evidence [presented by the nonmoving party] is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In essence, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.
Defendant Quanex moves to dismiss Carrier's suit with respect to each count. In its Motion to...
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