Collins v. Olin Corp.
| Decision Date | 28 February 2006 |
| Docket Number | No. 3:03 CV 945(DRD).,3:03 CV 945(DRD). |
| Citation | 418 F.Supp.2d 34 |
| Parties | Clarence R. COLLINS, Jr., et al., Plaintiffs, v. OLIN CORPORATION, et al. Defendants. |
| Court | U.S. District Court — District of Connecticut |
Adam J. Blank, Alison Kaplan Clark, David B. Zabel, Monte E. Frank, Perry Goodman, Cohen & Wolf, P.C., Bridgeport, CT, Andrew A. Rainer, Jennifer A. Currie, Mark Roberts, McRoberts, Roberts & Rainer, LLP, Boston, MA, Brad J. Mitchell, David C. Strouss, Michael A. Lesser, Neil T. Leifer, Thornton, Early & Naumes, Boston, MA, for Plaintiffs.
Joel B. Samson, Michael H. Wetmore, Husch & Eppenberger, St. Louis, MO, Mark S. Baldwin, Brown Rudnick Berlack Israels, Hartford, CT, Ann Marie Catino, Brian D. Rich, Joseph G. Fortner, Jr., Laurie R. Steinberg, Mark Theodore Lives, Thomas C. Blatchley, Halloran & Sage, Hartford, CT, for Defendants.
RULING ON DEFENDANT TOWN OF HAMDEN'S MOTION TO DISMISS AND MOTION FOR PARTIAL SUMMARY JUDGMENT
The plaintiffs in this action, homeowners in the Newhall section of Hamden, Connecticut, allege that their properties contain contaminated soil and groundwater as a result of conduct by the defendants, the Town of Hamden and the Olin Corporation ("Olin"). The plaintiffs brought a putative class action on behalf of themselves and a class of similarly situated individuals, seeking damages for the diminution in the value of their properties, response costs, loss of use and enjoyment of their properties, and emotional distress.1 They also seek preliminary and permanent injunctions compelling Hamden and Olin to conduct, on an expedited basis, actions necessary to investigate and remediate the alleged contamination.
This ruling addresses the Town of Hamden's motion to dismiss and motion for partial summary judgment.
On May 12, 2003, the plaintiffs brought this action against Hamden and Olin in the Connecticut Superior Court. On May 28, 2003, it was removed by the defendants to this Court and, on the same day, the plaintiffs filed a seventeen count amended complaint.2 That complaint sets forth claims against the Town of Hamden for negligence (count 2); gross negligence/reckless conduct (count 4); violation of the Connecticut Environmental Protection Act of 1971 ("CEPA Act"), Conn. Gen.Stat. § 22a-15 et seq. (count 6); negligence per se (count 8); abnormally dangerous activity/strict liability (count 10); infliction of emotional distress (count 12); nuisance (count 15); and recovery of response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607 (count 17).
Hamden has moved to dismiss seven counts of the amended complaint. The Town also filed a subsequent motion for partial summary judgment. Only the CERCLA count is not addressed by those motions. As discussed below, the Court grants Hamden's motion to dismiss as to the alleged violations of the CEPA Act, and claims for strict liability for abnormally dangerous activity, public and private nuisance, and intentional infliction of emotional distress.3 The Court also grants Hamden's motion for partial summary judgment on the basis of the Town's protection by governmental immunity from alleged liability for negligence, gross negligence, negligence per se, and negligent infliction of emotional distress.
The Court will first address Hamden's motion to dismiss, then its motion for partial summary judgment.
The portion of this action against Hamden has its origins in the town's waste management practices in the late nineteenth and early twentieth centuries, specifically in the town's establishment and coordination of dumps and landfills in the Newhall section of Hamden. The following allegations are taken from the complaint or is undisputed background information. The allegations of the complaint are deemed to be true for the purposes of resolving the motion to dismiss.
Until the late 1900's, the State of Connecticut and many of its municipalities attempted to eliminate particular wetlands where mosquitoes might breed by encouraging the filling of those areas. As early as 1915, Hamden encouraged its property owners to allow refuse to be dumped on their properties as part of this effort. Hamden would at times operate dumps on these properties and, when filled, the properties could be developed by their owners. Some time prior to 1917, Hamden established or encouraged dumps in the area bounded to the east and west by Wadsworth Street and St. Mary's street, and bounded to the north and south by Mill Rock Road and Goodrich Street—the area collectively referred to as the Newhall section. In approximately 1915, Winchester Repeating Arms ("Winchester") began disposing of its industrial waste and ash at dumps in the Newhall section, and it continued to dispose of waste at those dumps until they were closed in the early to mid-twentieth century. Winchester was a firearms manufacturer with a large plant in the neighboring City of New Haven and was a predecessor to the Defendant Olin Corporation. The complaint further alleges that Olin and Hamden were aware that after each dump in the Newhall area was closed to disposal, homes would be constructed on those sites.
During the years 2000 and 2001, the U.S. Environmental Protection Agency ("the EPA") conducted studies in the Newhall area. These studies revealed that chemicals and waste had been deposited in former wetland areas in the Newhall section. The EPA agreed to further investigate these residential areas for the presence of contamination. In April 2001, the EPA conducted surficial soil sampling on seventy-six private properties in the Newhall section, and analyzed these samples for a variety of organic and inorganic contaminants, including lead, arsenic, semi-volatile organic compounds ("SVOCs") and polycyclic aromatic hydrocarbons ("PAHs"). Over twenty-five percent of the samples contained lead concentrations that exceeded acceptable state standards for residential property soils, and approximately ten percent of the samples exceeded the State's "action level.4 Results of these surveys were sent to various individual property owners by letters dated May 29, 2001, or shortly thereafter. At thirteen residences known to exceed the action level, the EPA carried out "time-critical removal action," removing soil down to eighteen inches and replacing it with clean fill. These removals uncovered the presence of industrial materials related to the manufacture of firearms, ammunition and batteries. Additional tests conducted by the Connecticut Department of Environmental Protection ("the DEP") at twenty properties revealed widespread contamination and filling of industrial wastes throughout the area. A large number of the residential properties in the Newhall section remained "uncharacterized" or untested at that time, with no information concerning the nature or extent of waste or contamination in surficial and subsurface soils or groundwater, and the risks associated with such contamination. In December 2002, consultants for Olin reported that analyses of the fill in the Newhall area indicate the presence of elevated concentrations of metals (principally arsenic and lead) in residential site soil, and that groundwater quality and deeper soil deposits were largely uncharacterized. The complaint further alleges that elevated concentrations of these various hazardous constituents—principally arsenic and lead—may lead to a variety of physical and cognitive ailments including nervous system dysfunction, renal problems and cancer.
On July 10, 2001, the DEP issued an order to the four parties it believed were responsible for the contamination of the properties in the Newhall section—Hamden, Olin, the South Central Regional Water Authority and the State Board of Education ("the State BOE") (collectively "the respondents").5 This order required the respondents to investigate and remediate sources of pollution on a site which consisted of properties principally located within the Newhall section. The respondents appealed this order within the agency, and the DEP opened a contested case proceeding. During the course of this proceeding, both the DEP and the private parties performed further investigations of the properties in the subject area. In the spring of 2003, the DEP drafted a consent order, which was signed by all four of the respondents, and which was captioned "State of Connecticut v. Town of Hamden, South Central Connecticut Regional Water Authority, State Board of Education, and Olin Corporation."6 The consent order became effective on April 16, 2003, when a hearing officer for the DEP accepted it as a final decision pursuant to Connecticut regulation § 22a-3a-6(1) and (2).7
The consent order makes thirty-one factual findings, noting, however, that those findings were "for purposes of this consent order only." The consent order then sets forth the detailed "order" resulting from those factual findings, which contains twenty-five paragraphs spread over thirty-one pages. In the order, the four respondents agreed to investigate and remediate the private and public properties in the Newhall section and share the responsibilities and costs of such work.
This lawsuit against Hamden and Olin followed.8
When considering a motion to dismiss, a court accepts all factual allegations in the complaint as true and draws inferences in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). Dismissal is not warranted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of the 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); Weiss v. Wittcoff...
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