Companies for Fair Allocation v. Axil Corp.

• Decision Date: 11 May 1994
• Docket Number: Civ. No. 2:92CV00674(AHN).
• Citation: 853 F. Supp. 575
• Parties: The COMPANIES FOR FAIR ALLOCATION v. AXIL CORPORATION, et al.
• Court: U.S. District Court — District of Connecticut

853 F. Supp. 575

The COMPANIES FOR FAIR ALLOCATION v. AXIL CORPORATION, et al.

Civ. No. 2:92CV00674(AHN).

United States District Court, D. Connecticut.

May 11, 1994.

Robert G. Dunn, Pepe & Hazard, Hartford, CT, for plaintiffs.

David Platt, Murtha, Cullina, Richter & Pinney, Hartford, CT, for defendant.

RULING ON MOTION TO DISMISS

NEVAS, District Judge.

The plaintiffs, the Companies for Fair Allocation ("plaintiffs"), bring this action against the defendants, the Axil Corporation; J.P.S. Manufacturing, Inc.; Dynamics Corporation; BNB Manufacturing, Inc.; Sanitary Services Corporation; Kaman Music Corporation; Automated Material Handling, Inc.; Tom Corvo, Ltd.; John Fiori; The Dino Corporation, Isabell Bull; and M.S.I., Inc.,¹ pursuant to sections 107(a) and 113(f) of the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986 ("CERCLA"), 42 U.S.C. §§ 9607(a) and 9613(f). Plaintiffs seek to recover response costs incurred or to be incurred by the plaintiffs in relation to the hazardous waste cleanup of a public landfill site.

Presently, defendants J.P.S. Manufacturing Corporation and Kaman Corporation ("defendants") move to dismiss counts one and two of the complaint. Defendants argue that as potentially responsible parties ("PRPs"), the plaintiffs have no private right to recovery under § 107, and that their claim for contribution must fail because the plaintiffs have not accepted liability for the site clean-up. For the reasons that follow, the defendants' motion doc. # 43 is DENIED.

STANDARD OF REVIEW

When considering a Rule 12(b)(6) motion to dismiss, the court is required to accept as true all factual allegations in the complaint and draw inferences from these allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Easton v. Sundram, 947 F.2d 1011, 1014-1015 (2d Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). Dismissal is warranted only if, under any set of facts that the plaintiff can prove consistent with the allegation, it is clear that no relief can be granted. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir.1991). "The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his or her claims." United States v. Yale New Haven Hosp., 727 F.Supp. 784, 786 (D.Conn.1990) (citing Scheuer, 416 U.S. at 232, 94 S.Ct. at 1684).

FACTS

The facts, as alleged in the plaintiffs' complaint, are as follows. The Barkhamsted Landfill (the "Landfill"), located in the towns of Barkhamsted and New Hartford, Connecticut, began operations in or about 1974. Between 1974 and 1988, the Landfill accepted industrial and commercial solid and liquid wastes for disposal.

In 1989, following a site inspection by the United States Environmental Protection Agency ("EPA"), the Landfill was listed on the National Priorities List for Superfund cleanup sites because it contained substances designated as hazardous under § 101(14) of CERCLA, 42 U.S.C. § 9601(14). The defendants and plaintiffs in this action received "Special Notice" letters from the EPA pursuant to § 122(e) of CERCLA, 42 U.S.C. § 9622(e), notifying them that the EPA had reason to believe each of them had arranged for the disposal or treatment of waste containing hazardous substances at the Barkhamsted Landfill, or had accepted for transport to the Barkhamsted Landfill wastes containing hazardous substances.

In 1990, the Connecticut Department of Environmental Protection ("CT DEP"), issued an order requiring the owner and operator of the Landfill to investigate the waste materials on site and the potential impact of the Landfill's activities and waste on human health and the environment.

In 1991, the plaintiffs, voluntarily and without admission of liability, entered into an Administrative Order by Consent ("Consent Order") with the EPA, CT DEP and others. The Consent Order obligated them to perform a Remedial Investigation and Feasibility Study ("RI/FS") to determine the nature and extent of contamination and any threat to the public health, welfare or the environment caused by the release or threatened release of hazardous substances, pollutants or contaminants from the Landfill.

As a result of their obligations under the Consent Order, the plaintiffs have incurred and will continue to incur response costs in connection with the site, including, but not limited to, response costs in connection with the RI/FS and the DEP Order. The plaintiffs allege that their expenditures to date, and their planned expenditures, have been and will be consistent with the National Contingency Plan.

In the first count of their complaint, plaintiffs claim that pursuant to § 107 of CERCLA, 42 U.S.C. § 9607, and principles of federal common law, each defendant is jointly, severally and strictly liable to the plaintiffs for a fair and equitable share of all response costs incurred in connection with the Landfill.

In the second count, the plaintiffs claim that pursuant to § 113 of CERCLA, 42 U.S.C. § 9613, and principles of federal common law, each defendant is liable to the plaintiff for contribution of all response costs incurred by the members in connection with the Landfill in excess of any share of such costs found to be fairly and equitably allocable to the members. Alternatively, the plaintiffs claim that each defendant is liable for the proportionate share of all response costs incurred by the plaintiffs in excess of any share of such costs found to be fairly and equitably allocable to the plaintiffs.

In the third count of the complaint, plaintiffs claim that pursuant to § 22a-452 of the Connecticut General Statutes, the defendants are liable to the plaintiffs for the defendants' pro rata share of the plaintiffs' costs of containing, and removing or otherwise mitigating the effects of the alleged pollution or contamination at the Landfill, and all damage caused thereby. This third claim is not at issue in the defendants' motion to dismiss.

DISCUSSION

I. The § 107 Claim

The First Count of the Complaint is a claim for response costs under CERCLA § 107, 42 U.S.C. § 9607(a)(4)(B). The defendants argue that this claim must be dismissed because, as the plaintiffs are themselves potentially responsible parties ("PRPs"), their exclusive remedy is one for contribution under § 113, and the § 107 claim is merely subsumed within the § 113 claim. The plaintiffs contend that § 113 is not the exclusive remedy and that PRPs may seek cost recovery under § 107. The court agrees.

Generally, to state a prima facie case for response costs under § 107, a plaintiff must allege the following:

(1) the waste disposal site is a "facility" within the meaning of 42 U.S.C. § 9601(9); (2) a "release" or "threatened release" of any "hazardous substance" from the facility has occurred, id. § 9607(a)(4); and (3) such "release" or "threatened release" has caused the plaintiff to incur response costs that are "consistent with the national contingency plan," id. §§ 9607(a)(4) & (a)(4)(B).

Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989); see also New York v. Shore Realty Corp., 759 F.2d 1032, 1043 (2d Cir.1985). In addition, the defendant must qualify as one of four categories of "covered persons" subject to CERCLA liability. 42 U.S.C. § 9607(a);² Ascon Properties, 866 F.2d at 1152. Moreover, "absent a showing by a preponderance of the evidence that one of the affirmative defenses contained in 42 U.S.C. § 9607(b) has been satisfied, the liability of covered parties for costs incurred in the clean-up is strict.... Where the environmental harm is indivisible, liability is also joint and several." United States v. A & N Cleaners and Launderers, Inc., 842 F.Supp. 1543, 1547 (S.D.N.Y.1994) (citing B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1197 (2d Cir.1992)).

With these general principles in mind, plaintiffs state a prima facie case under § 107 as they have alleged: (1) that the Barkhamsted Landfill is a "facility" within the meaning of 42 U.S.C. § 9601(9), (2) a "release" of hazardous substances has occurred, and (3) the plaintiffs have incurred, and will incur, response costs consistent with the national contingency plan. (See Pl. Compl. ¶¶ 25-27.)

The defendants do not challenge this prima facie showing; rather, the defendants' argument for dismissal of this claim is two-fold: 1) as PRPs, plaintiffs lack standing to pursue a § 107 claim, and 2) under these facts, the § 107 and § 113 claims are not properly asserted as separate claims, but the § 107 claim is merely subsumed within the § 113 claim. The issues framed by these arguments appear to ones of first impression in this circuit.³

A. Potentially Responsible Parties as Proper Plaintiffs

Section 107(a)(4) provides, in relevant part:

any person who accepts or accepted any hazardous substances ... from which there is a release, or a threatened release which causes the incurrence of response costs, ... shall be liable for— (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan.

42 U.S.C. § 9607(a)(4) (emphasis added).

The defendants contend that because the plaintiffs are themselves PRPs under CERCLA, the appropriate action is one for contribution under § 113, which provides for several, rather than joint and several, liability. However, the § 107 liability provision, with its use of the term "any other person" and its limited defenses to liability,⁴ implies that Congress intended the liability provision to sweep broadly. United States v. New Castle County, 642 F.Supp. 1258, 1264 (D.Del.1986). While CERCLA is silent as to whether "any other person" includes other PRPs, a...