Hobart Corp. v. Waste Mgmt. of Ohio, Inc.

• Decision Date: 10 February 2011
• Docket Number: Case No. 3:10cv195.
• Citation: 840 F.Supp.2d 1013
• Parties: HOBART CORPORATION, et al., Plaintiffs, v. WASTE MANAGEMENT OF OHIO, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

840 F.Supp.2d 1013

HOBART CORPORATION, et al., Plaintiffs,

v.WASTE MANAGEMENT OF OHIO, INC., et al., Defendants.

Case No. 3:10cv195.

United States District Court,

S.D. Ohio,

Western Division.

Feb. 10, 2011.

Michael A. Cyphert, Leslie G. Wolfe, Walter & Haverfield LLP, Cleveland, OH, for Plaintiffs.

William H. Harbeck, Quarles & Brady LLP, Milwaukee, WI, John Paul Brody, Kegler Brown Hill & Ritter, Anthony M. Sharett, Drew H. Campbell, Frank Leslie Merrill, Bricker & Eckler, LLP, Jack Allen Van Kley, Columbus, OH, Michael W. Sandner, Pickrel Schaeffer & Ebeling, Christopher Allen Walker, Dayton, OH, David T. Moss, Hanna Campbell & Powell, Akron, OH, William Wick, Wactor and Wick, LLP, Oakland, CA, Mark D. Erzen, Mark D. Erzen, P.C., Chicago, IL, Robert Eugene Signom, II, Steven Morris Sherman, Vicki J. Wright, Krieg DeVault LLP, Indianapolis, IN, Martin Harry Lewis, Tucker Ellis & West LLP, Cleveland, OH, Steve N. Siegel, Dinsmore & Shohl LLP, Cincinnati, OH, for Defendants.

DECISION AND ENTRY OVERRULING, IN PART, AND SUSTAINING, IN PART, MOTION TO DISMISS OF DEFENDANT DAYTON POWER AND LIGHT (DOC. # 27) AND MOTION TO DISMISS OF DEFENDANT BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC (DOC. # 33); AND SUSTAINING MOTION TO DISMISS OF DEFENDANT IRG DAYTON I LLC (DOC. # 35)

WALTER HERBERT RICE, District Judge.

With regard to environmental clean-up costs associated with certain property known as the South Dayton Dump and Landfill Site (the “Site”), ¹ the Plaintiffs, Hobart Corporation, Kelsey–Hayes Company and NCR Corporation, bring suit under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601– 9675, as well as under Ohio common law, against the following Defendants: Waste Management of Ohio, Inc., The Bimac Corporation, Bridgestone Americas Tire Operations, LLC,² Cargill, Inc., The Dayton Power & Light Company, Monsanto Company, Valley Asphalt Corporation, IRG Dayton 1, LLC, and “John Doe” corporations. Doc. # 69 (2nd Am. Compl.). Specifically, the Second Amended Complaint alleges four claims, to wit: (1) cost recovery, under CERCLA Section 107(a) (Count I); (2) contribution, under CERCLA Section 113(f)(3)(B) (Count II); (3) unjust enrichment (Count III); and (4) declaratory judgment (Count IV). Id.

Presently before the Court are Motions to Dismiss filed by Defendant Dayton Power and Light (“DP & L”) (Doc. # 27), Defendant Bridgestone Americas Tire Operations, LLC (“Bridgestone”) (Doc. # 33) and Defendant IRG Dayton I LLC (“IRG”) (Doc. # 35).³ Defendants DP & L and Bridgestone both assert that the Plaintiffs have failed to state claims, under Federal Rule of Civil Procedure 12(b)(6), as to all four claims. Defendant IRG, on the other hand, asserts only that the Plaintiffs' claim under CERCLA Section 107(a) should be dismissed, for failure to state a claim.⁴

In analyzing the three Motions to Dismiss, the Court will begin with a summary of the pertinent facts and will then turn to a consideration of the standard that guides its decisions on Motions to Dismiss. It will then conclude with an analysis of the merits of the three Motions that are presently before it.

I. Facts⁵

The allegations in the Complaint include the following pertinent factual averments, which must be taken as true for purposes of the Court's analysis of the Motions to Dismiss:

• The United States Environmental Protection Agency (“EPA”) has identified contaminants at the Site, consisting of certain hazardous substances. Doc. # 69 (2nd Am. Compl.) ¶ 3.

• Waste disposal started at the Site, in 1941. Known hazardous substances, to include certain identified organic and inorganic compounds, were disposed at the Site between June 1973 and July 1976. Id. ¶ 22.

• In accordance with the pertinent CERCLA provisions, ... there has been a “release” and/or “threatened release” at the Site, the organic and inorganic compounds detected at the Site at elevated levels are “hazardous substances,” and the release and/or threatened release has caused and will continue to cause the Plaintiffs to incur response costs, including costs for removal and/or remedial actions, which are necessary and consistent with the National Contingency Plan.⁶Id. ¶¶ 24–26.

• Hazardous substances released on adjacent properties have been allowed to migrate from adjacent properties through the groundwater to contaminate the Site. Id. ¶ 22.

• Contaminants have been detected in both the soil and groundwater at the Site at concentrations above background levels or maximum contaminant levels as established by the EPA. Id. ¶ 39.

• The Plaintiffs entered into a settlement with the EPA, under the Superfund Alternative Sites program, for performance of the remedial investigation and feasibility study (“RI/FS”) for the Site, in compliance with the National Contingency Plan. Id. ¶ 4. Also, the Plaintiffs and the EPA entered into an Administrative Settlement Agreement and Order on Consent for Remedial Investigation/Feasibility Study, which became effective August 15, 2006 (“Settlement Agreement”). Id. ¶ 41.

• The Plaintiffs have incurred and will continue to incur costs in the performance of the RI/FS including, but not limited to, costs of investigation, testing, evaluating and removal of some or all of the contamination. Id. ¶ 5. Further, the Plaintiffs have incurred response costs and will continue to incur response costs in connection with the Site. These costs have been and will continue to be (i) for actions taken in response to the release or threatened release of hazardous substances at the Site; (ii) necessary costs of response incurred by Plaintiffs consistent with the National Contingency Plan; and (iii) in excess of Plaintiffs' equitable shares. Id. ¶ 43.

Specifically with regard to Defendant Bridgestone, the Second Amended Complaint alleges that Bridgestone is the legal successor in interest to Dayton Tire & Rubber Company (“Dayton Tire”), and that Dayton Tire arranged for the disposal of wastes at the Site, including waste containing hazardous substances from its facilities and operations located in and around Dayton. Id. ¶ 28. Further, Dayton Tire contributed to contamination at the Site, through its disposal of wastes that included hazardous substances, at the Site. Id.

As to Defendant DP & L, the Second Amended Complaint avers that DP & L arranged for the disposal of wastes at the Site, including waste containing hazardous substances from its facilities and operations located in and around Dayton. Id. ¶ 31. Further, DP & L contributed to contamination at the Site through its disposal of wastes that included hazardous substances at the Site, as well as by releasing hazardous substances on its property adjacent to the Site and allowing these hazardous substances to migrate through the groundwater to contaminate the Site. Id. DP & L was a regular customer at the Site and had its own key for 24 hour access to the Site for disposal of its waste materials, including wastes containing hazardous substances. Id. ¶ 32.

With regard to Defendant IRG, the Second Amended Complaint alleges that IRG is the owner of certain parcels of real estate that comprise the property adjacent to the Site known as the Wisconsin BoulevardSite, with a street address of 1515 Cincinnati Street, Dayton, Montgomery County, Ohio (the “WBS Property”). Id. ¶ 38. Further, the WBS Property contains hazardous substances which IRG has failed to contain and has allowed these hazardous substances to migrate through the groundwater to contaminate the Site. Such migration constitutes an arrangement for the disposal of hazardous substances. Id.

The Second Amended Complaint also alleges that the three Defendants in question “are persons who arranged for disposal or treatment at the Site, or arranged with a transporter for transport for disposal or treatment at the Site, of hazardous substances owned or possessed by [them].” Id. at 45.

II. Standard for Motions to Dismiss for Failure to State a Claim, under Federal Rule of Civil Procedure 12(b)(6)

In Prater v. City of Burnside, Ky., 289 F.3d 417 (6th Cir.2002), the Sixth Circuit reiterated the fundamental principles which govern the ruling on a motion to dismiss under Rule 12(b)(6);

The district court's dismissal of a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is also reviewed de novo. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir.1999), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). When deciding whether to dismiss a claim under Rule 12(b)(6), “[t]he court must construe the complaint in a light most favorable to the plaintiff, and accept all of [the] factual allegations as true.” Id. (citation omitted).

Id. at 424. In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), the Supreme Court noted that Rule 8(a)(2) of the Federal Rules of Civil Procedure merely requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 512, 122 S.Ct. 992. Therein, the Court explained further:

Such a statement must simply “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims. See id., at 47–48, 78 S.Ct. 99;Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168–169, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). “The provisions for discovery are so flexible and the provisions for pretrial procedure and summary judgment so effective, that attempted surprise in federal practice is aborted very easily, synthetic issues detected, and the gravamen of the dispute brought frankly into the open for the inspection of the court.” 5...