Coastline Terminals of Connecticut v. Usx Corp.
| Citation | 156 F.Supp.2d 203 |
| Decision Date | 11 July 2001 |
| Docket Number | No. 3:00CV1698(WWE).,3:00CV1698(WWE). |
| Parties | COASTLINE TERMINALS OF CONNECTICUT, INC., Plaintiff, v. USX CORPORATION, Defendant, v. NORTHEAST WASTE SYSTEMS, INC. et. al., Third Party Defendants. |
| Court | U.S. District Court — District of Connecticut |
David J. Monz, Joseph A. Rosenthal, Updike, Kelly & Spellacy, P.C., New Haven, CT, for Coastline Terminals of Connecticut.
Brian P. Daniels, John R. Bashaw, Rowena Amanda Moffett, Brenner, Saltzman & Wallman, New Haven, CT, for USX Corporation.
Gian-Matthew Ranelli, Shipman & Goodwin, Hartford, CT, for Northeast Waste Systems, Inc.
Joseph P. Williams, Gian-Matthew Ranelli, Shipman & Goodwin, Hartford, CT, for Waste Management of Connecticut, Inc.
Eric Lukingbeal, Richard Michael Fil, Robinson & Cole, Hartford, CT, for FPS Harbour Holdings, Inc.
Ann Marie Catino, Lori D. DiBella, Halloran & Sage, Hartford, CT, for Blakeslee Arpaia Chapman, Inc.
Lewis K. Wise, Rogin, Nassau, Caplan, Lassman & Hirtle, Hartford, CT, for White Oak Corp.
Alan G. Schwartz, Wiggin & Dana, New Haven, CT, David J. Monz, Joseph A. Rosenthal, Updike, Kelly & Spellacy, P.C., New Haven, CT, for New Haven Terminal, Inc. Christopher P. McCormack, Matthew A. Sokol, Tyler, Cooper & Alcorn, New Haven, CT, for Logistec Connecticut, Inc.
RULING ON MOTION TO DISMISS
In this case, plaintiff Coastline Terminals of Connecticut alleges that defendant USX Corporation is liable for environmental contamination pursuant to the federal Comprehensive Environmental Response, Compensation and Liability Act ["CERCLA"], 42 U.S.C. §§ 9601 et seq., Connecticut General Statute Section 22a-452, and common law negligence. Specifically, plaintiff seeks response costs pursuant to Section 107(a) of CERCLA (count one), contribution pursuant to Section 113(f) of CERCLA (count two), reimbursement pursuant to Connecticut General Statutes Section 22a-452 (count three), and damages as compensation for defendant's negligence (counts four and five).
Defendant USX moves for dismissal of plaintiff's complaint in its entirety. For the following reasons, defendant's motion to dismiss will be denied in part and granted in part.
For purposes of ruling on this motion to dismiss, the Court recites the following factual background taking the allegations made in the complaint as true.
Plaintiff Coastline Terminals of Connecticut is a Connecticut corporation with its principal place of business in New Haven, Connecticut.
Defendant USX Corporation is the corporate successor of United States Steel Corporation. The affiliates and predecessors of U.S. Steel include United States Steel Company and American Steel & Wire Company of New Jersey.
The property that is the subject of this suit is a site composed of two irregularly-shaped parcels totaling approximately 34.71 acres located adjacent to the Quinnipiac River in New Haven, Connecticut. Parcel one comprises approximately 33.02 acres, while parcel two comprises 1.69 acres.
U.S. Steel and/or its affiliates and predecessors in interest owned parcel one from 1923 until 1983, and operated the site as a steel wire, rope and strand plant, using such hazardous materials as solvents, corrosives and ignitibles in the manufacturing process.
U.S. Steel and/or its affiliates and predecessors in interest installed underground storage tanks and a concrete vault at the site, which resulted in the release of hazardous wastes, chemicals, oil and petroleum products into the soil and groundwater.
In July, 1996, Coastline purchased the property from New Haven Terminals ["NHT"]. Since that date, Coastline has expended efforts to mitigate the effects of the contamination.
This litigation ensued.
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." Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984). When deciding a motion to dismiss, the Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). A complaint should 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, 2 L.Ed.2d 80 (1957).
USX argues that Coastline has waived its right to institute a CERCLA action by virtue of plaintiff's mandatory filing pursuant to the Connecticut Transfer Act, Connecticut General Statutes Section 22a-134 et seq. USX also contends that certain statements made in NHT's bankruptcy plan constitute a waiver of Coastline's CERCLA action against USX.
Prior to the transfer of real property contaminated by hazardous waste such as the site at issue here, Connecticut's Transfer Act requires submission of one of four forms to the Connecticut Department of Environmental Protection. Form I attests to the absence of contamination; Form II indicates that remediation has already occurred and is complete; Form III is a written certification that states that the property has been contaminated by hazardous waste, that the environmental condition of the site is unknown, and that the certifying party agrees to investigate and remediate the parcel; and Form IV is a written certification that remediation has taken place and that the certifying party will conduct postremediation monitoring or natural attenuation monitoring. Conn. Gen. Stat. § 22a-134.
When Coastline purchased the site from NHT in 1996, Coastline and NHT filed a Form III, with Coastline listed as the party certifying that it would investigate and remediate the contamination, if necessary. Pursuant to NHT's Second Amended Plan of Reorganization ["NHT's Bankruptcy Plan"], the site was purchased "as is" by Coastline.
In support of its contention that Coastline waived its CERCLA claims by virtue of the Form III filing and statements in NHT's Bankruptcy Plan, USX cites to Southdown v. Allen, 119 F.Supp.2d 1223 (N.D.Ala.2000). In Southdown, a former owner of a hazardous waste recycling facility sought reimbursement of environmental clean up costs from the facility's customers. The district court held that plaintiff's CERCLA claim was barred by an agreement wherein the former owner had agreed to remediate the property at its "sole expense" and to indemnify the purchaser of the property.
The court construed the former owner's agreement to bear the "sole expense" of remediating the property as a waiver of its rights pursuant to CERCLA, reasoning, inter alia, that the purchaser could not have intended to allow CERCLA liability to be imposed on the clientele of the business, which result could have potentially devastated the business.
The facts of Southdown distinguish it from the instant set of facts. Unlike the plaintiffs in Southdown, Coastline has not contracted to remediate the property at its "sole expense." Nor is there any indication that the transfer of the property to Coastline was made with expectation that Coastline alone would absorb the costs of remediation without remedy to receive contribution from other potentially responsible parties. Furthermore, a contract must unequivocally establish the clear transfer or release of CERCLA liabilities. Southland Corp. v. Ashland Oil, Inc., 696 F.Supp. 994, 1002 (D.N.J.1988); see also Int'l Clinical Labs. v. Stevens, 710 F.Supp. 466, 470 (E.D.N.Y.1989)( argument that plaintiff's CERCLA action was barred by an "as is" term of contract). Accordingly, plaintiff has not waived its CERCLA claims against USX by virtue of either its Form III filing or the terms of NHT's Bankruptcy Plan.
USX argues further that Coastline's second count for contribution pursuant to CERCLA's Section 113(f) should be dismissed because Coastline has not alleged that it currently was or has been the subject of either a CERCLA Section 106 or 107 cost recovery action out of which its current CERCLA claim arises.
Section 113(f) of CERCLA provides, in relevant part:
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 9606 of this title or under section 9607(a) of this title....Nothing in this subsection should diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.
This court recognizes that cases from within other circuits support USX's argument that a CERCLA claim for contribution is barred where the plaintiff has not itself been threatened with liability. See Aviall Services, Inc. v. Cooper Industries, Inc., 2000 WL 31730 (N.D.Tx.2000) and cases cited therein. However, Second Circuit authority indicates that the Court should hold otherwise. Bedford Affiliates v. Sills, 156 F.3d 416, 424 (2d Cir.1998).
Bedford Affiliates holds that potentially responsible parties precluded from bringing cost recovery claims pursuant to Section 107(a) may bring contribution actions pursuant to Section 113(f). Accordingly, the Court will deny the motion to dismiss on this count, and allow the plaintiff to assert a claim for contribution pursuant to Section 113(f), even if it is found to be precluded from recovery pursuant to Section 107(a). See Thomson Precision Ball v. PSB Associates Liquidating, 2001 WL 10507 (D.Conn.2001).
USX contends that Coastline's state statutory and common law claims are preempted by CERCLA. Plaintiff counters that its state law claims are not preempted by CERCLA because it is seeking damages covered by CERLCA.
CERCLA does not represent a comprehensive regulatory scheme occupying the entire field of hazardous...
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