City of Health, Ohio v. Ashland Oil, Inc., C-2-91-980.

Citation834 F. Supp. 971
Decision Date19 July 1993
Docket NumberNo. C-2-91-980.,C-2-91-980.
PartiesCITY OF HEATH, OHIO, Plaintiff, v. ASHLAND OIL, INC., and Unocal, Corp., Defendants.
CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

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Randolph C. Wiseman, Bricker & Eckler, Columbus, OH, for plaintiff.

David W. Alexander, Squire, Sanders & Dempsey, Columbus, OH, for Ashland Oil, Inc.

Richard P. Fahey, Arter & Hadden, Columbus, OH, for Unocal, Corp.

MEMORANDUM AND ORDER

HOLSCHUH, Chief Judge.

This matter is before the Court on the motion of defendant Ashland Oil, Inc. to dismiss counts 2, 3 and 4 for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and failure to state a claim pursuant to Rule 12(b)(6).

BACKGROUND

This lawsuit was filed by plaintiff the City of Heath (Heath) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601, et seq., the Resource Conservation Recovery Act (RCRA), 42 U.S.C. § 6901, et seq., and various state laws. Count 2 seeks costs under CERCLA allegedly incurred by plaintiff due to the release of hazardous substances at a facility owned by defendant Ashland Oil, Inc. (Ashland) and previously owned by defendant Unocal Corp. Counts 3 and 4 seek civil penalties and injunctive relief under RCRA against defendants for operating a hazardous waste facility in violation of the standards applicable to generators of hazardous waste and for creating an imminent and substantial endangerment to the health of the citizens of Heath and the environment.

Plaintiff alleges that the facility located at 840 Heath Road, Heath, Ohio was originally used as an oil refinery and in the 1970s was converted to a storage and disposal facility for petroleum and petroleum distillates. Plaintiff alleges that defendants engaged in practices that resulted in the unlawful disposal of hazardous substances and wastes including vinyl acetate, bromodichloromethane, benzene, 1, 1, 2, 2-tetrachlorethane, chlorobenzene and zylenes. Plaintiff further alleges that the hazardous substances and wastes seeped into and polluted the ground, groundwater and aquifer and have migrated into the publicly owned treatment works (POTW). By stipulation entered June 30, 1993, plaintiff dismissed all claims for damages relating to the POTW, including the specific allegations in counts 6, 7, 8 and 9. Plaintiff alleges that it has incurred and will continue to incur substantial response costs.

On May 30, 1991 the State of Ohio filed an action in the Common Pleas Court of Licking County against Ashland and Unocal relating to the disposal of hazardous waste from the facility at 840 Heath Road, Heath, Ohio and resulting contamination of groundwater and surface water. Ohio, ex rel Fisher v. Ashland Petroleum Company and Union Oil Company of California dba Unocal, Case No. 91-F-90011. On that same day the parties, with the approval of the common pleas court, entered a consent order for a preliminary injunction requiring site investigation and remedial work in accordance with the National Contingency Plan. 40 C.F.R. Part 300.

SURREPLY

In addition to the memoranda permitted under Local Rule 7.2(a), plaintiff has filed a motion for leave to file a surreply memoranda. Plaintiff requests that it be permitted to file a surreply containing more detailed information on the applicability of the Hazardous and Solid Waste Amendments (HSWA). Ashland has also filed a motion for leave to file a response to plaintiff's surreply.

Although plaintiff gives no reason why the more detailed information found in the surreply was not contained in the original response, the information provides the Court with additional helpful information on issues in dispute and the motion for leave is granted. Likewise, defendant's motion for leave to file a response to the surreply is granted. The Court will consider the surreply and response.

ADDITIONAL AUTHORITY

Ashland has filed two motions for leave to file instanter additional authority on the basis that decisions issued after its briefs were filed are relevant to its motion to dismiss. The motions are granted and the Court will consider the opinions.

LEGAL STANDARD

When a defendant seeks dismissal under both Rule 12(b)(1) and 12(b)(6), the Court is bound to consider the Rule 12(b)(1) motion first, because the Rule 12(b)(6) motion will become moot if the Court lacks subject matter jurisdiction. Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir.1990). In reviewing a Rule 12(b)(1) motion, the plaintiff has the burden of proving jurisdiction to survive the motion and the Court has the power to resolve factual disputes. Id., Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986). However, where the complaint seeks recovery directly under federal law the federal court must entertain the action unless the claim is immaterial or wholly insubstantial and frivolous. Cherokee Exp. Inc. v. Cherokee Exp., Inc., 924 F.2d 603, 609 (6th Cir.1991) (citing Bell v. Hood, 327 U.S. 678, 681-682, 66 S.Ct. 773, 775-76, 90 L.Ed. 939 (1945)). "The fact that a complaint may not state a claim upon which relief may be granted is of no relevance to the question of subject matter jurisdiction." Id. The question of whether a complaint states a claim for relief calls for a decision on the merits, not for a determination of jurisdiction. Id.

Ashland argues that the complaint fails to state claims upon which relief may be granted in regard to counts 2, 3 and 4 and that counts 3 and 4 have jurisdictional defects. The Court will first establish, with reference to counts 3 and 4, whether the Court has subject matter jurisdiction over the claims in those counts. If so, the Court will consider whether the respective counts state claims upon which relief can be granted.

The purpose of a motion under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the complaint. When considering a motion to dismiss pursuant to Rule 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material 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); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642 (1972); Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.1983); Dunn v. Tennessee, 697 F.2d 121, 125 (6th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349; Smart v. Ellis Trucking Co., 580 F.2d 215, 218 n. 3 (6th Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1497, 59 L.Ed.2d 770 (1979); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). Although the Court must liberally construe the complaint in favor of the party opposing the motion to dismiss, Kugler v. Helfant, 421 U.S. 117, 125-26 n. 5, 95 S.Ct. 1524, 1531 n. 5, 44 L.Ed.2d 15 (1975); Smart, 580 F.2d at 218 n. 3; Davis H. Elliot Co. v. Caribbean Utils. Co., 513 F.2d 1176, 1182 (6th Cir.1975); Ott v. Midland-Ross Corp., 523 F.2d 1367, 1369 (6th Cir.1975), it will not accept conclusions of law or unwarranted inferences cast in the form of factual allegations. Blackburn v. Fisk Univ., 443 F.2d 121, 124 (6th Cir.1971); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir.), cert. denied, 352 U.S. 870, 77 S.Ct. 94, 1 L.Ed.2d 76 (1956). The Court will, however, indulge all reasonable inferences that might be drawn from the pleading. Fitzke v. Shappell, 468 F.2d 1072, 1076-77 n. 6 (6th Cir. 1972).

When determining the sufficiency of a complaint in the face of a motion to dismiss, a court will apply the principle that "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, 102, 2 L.Ed.2d 80 (1957). See also McLain v. Real Estate Bd., 444 U.S. 232, 246, 100 S.Ct. 502, 511, 62 L.Ed.2d 441 (1980); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984). Because a motion under Rule 12(b)(6) is directed solely to the complaint itself, Roth Steel Prods., 705 F.2d at 155; Sims v. Mercy Hosp., 451 F.2d 171, 173 (6th Cir.1971), the focus is on whether the plaintiff is entitled to offer evidence to support the claims, rather than on whether the plaintiff will ultimately prevail. Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686; McDaniel v. Rhodes, 512 F.Supp. 117, 120 (S.D.Ohio 1981).

A complaint need not set down in detail all the particularities of a plaintiff's claim against a defendant. United States v. School District, 577 F.2d 1339, 1345 (6th Cir.1978); Dunn, 697 F.2d at 125; Westlake, 537 F.2d at 858. Rule 8(a)(2) Federal Rules of Civil Procedure, requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." The function of the complaint is to afford the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. See Dunn, 697 F.2d at 125; Westlake, 537 F.2d at 858. The Court will grant a motion for dismissal under Rule 12(b)(6) only if there is an absence of law to support a claim of the type made or of facts sufficient to make a valid claim or if on the face of the complaint there is an insurmountable bar to relief indicating that the plaintiff does not have a claim. See generally Rauch v. Day & Night Mfg., 576 F.2d 697, 702 (6th Cir.1978); Ott, 523 F.2d at 1369; Brennan v. Rhodes, 423 F.2d 706 (6th Cir. 1970).

DISCUSSION
A. COUNT 2: 42 U.S.C. § 9607(a)(4)(A)

Ashland argues that Heath has failed to state a claim on which relief can be granted under count 2. Ashland argues that CERCLA does not permit a municipality like the City of Heath to bring suit under 42 U.S.C. § 9607(a)(4)(A). Ashland argues that only the United States, a state or an Indian tribe can proceed under s...

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