Laidlaw Waste Systems, Inc. v. Mallinckrodt, Inc., 4:95-CV-2033 CAS.

• Decision Date: 06 May 1996
• Docket Number: No. 4:95-CV-2033 CAS.,4:95-CV-2033 CAS.
• Citation: 925 F. Supp. 624
• Parties: LAIDLAW WASTE SYSTEMS, INC., et al., Plaintiffs, v. MALLINCKRODT, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

925 F. Supp. 624

LAIDLAW WASTE SYSTEMS, INC., et al., Plaintiffs, v. MALLINCKRODT, INC., et al., Defendants.

No. 4:95-CV-2033 CAS.

United States District Court, E.D. Missouri, Eastern Division.

May 6, 1996.

COPYRIGHT MATERIAL OMITTED

R. Henry Branom, Jr., Jason M. Rugo, Ronald E. Jenkins, Jenkins and Kling, St. Louis, MO, for plaintiffs Laidlaw Waste Systems, Inc., Laidlaw Waste Systems (Belleville), Inc.

Richard J. Pautler, Partner, Peper and Martin, St. Louis, MO, for defendants Mallinckrodt, Inc., Mallinckrodt Chemical, Inc.

MEMORANDUM AND ORDER

SHAW, District Judge.

This matter is before the Court on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendants Mallinckrodt, Inc. and Mallinckrodt Chemical, Inc., formerly known as Mallinckrodt Specialty Chemicals Company (collectively "defendants"). Plaintiffs Laidlaw Waste Systems (Belleville), Inc. and Laidlaw Waste Systems, Inc. oppose the motion. This is a civil action for cost recovery, contribution, declaratory and monetary relief pursuant to sections 107 and 113 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9607, 9613; the Declaratory Judgment Act, 28 U.S.C. § 2201(a); and state common law.

Defendants have submitted matters outside the pleadings in support of portions of their motion to dismiss. A motion to dismiss pursuant to Rule 12(b)(6) "must be treated as a motion for summary judgment when matters outside the pleadings are presented and not excluded by the trial court." Woods v. Dugan, 660 F.2d 379, 380 (8th Cir.1981) (per curiam). As plaintiffs have had an adequate opportunity to respond to defendants' motion, and have based some of their arguments on documents submitted by defendants, the Court will treat the motion, to the extent appropriate, as one for summary judgment. See Davis v. Johnson Controls, Inc., 21 F.3d 866, 867 (8th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 426, 130 L.Ed.2d 340 (1994); Angel v. Williams, 12 F.3d 786, 788-89 (8th Cir.1993); Gibb v. Scott, 958 F.2d 814, 816 (8th Cir.1992). In so doing, the Court will apply the following standards.

Dismissal Standard. When ruling on a motion to dismiss, this Court must take the allegations of the complaint as true. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The complaint must be liberally construed in a light most favorable to the plaintiff. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir.1994); Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). A motion to dismiss should not be granted merely because a complaint does not state with precision every element of the offense necessary for recovery. Roberts v. Walmart Stores, Inc., 736 F.Supp. 1527, 1528 (E.D.Mo. 1990). "A complaint is sufficient if it contains allegations from which an inference can be drawn that evidence on these material points will be introduced at trial." Id. (internal quotations and citation omitted). Therefore, a motion to dismiss a complaint should not be granted unless it appears beyond doubt' that the plaintiff can prove no set of facts which would entitle him or her to relief. Coleman, 40 F.3d at 258; Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir.1993).

Summary Judgment Standard. The standards applicable to summary judgment motions are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the information before the court shows "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir.1988) (the moving party has the burden of clearly establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor). Once this burden is discharged, if the record does in fact bear out that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Once the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed. R.Civ.P. 56(e). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). In fact, the non-moving party must show there is sufficient evidence favoring the non-moving party which would enable a jury to return a verdict for it. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

Facts. With these principles in mind, the Court turns to an examination of the facts. Plaintiffs are Laidlaw Waste Systems (Belleville) Inc. ("Laidlaw Belleville"), a Missouri corporation, and Laidlaw Waste Systems, Inc. ("Laidlaw"), a Delaware corporation (collectively "plaintiffs"). Plaintiffs filed this action on October 26, 1995, seeking recovery from defendants for response costs and damages plaintiffs allegedly incurred arising out of the release and/or threatened release of hazardous substances at a licensed and permitted sanitary landfill site (the "Site") owned and operated by Laidlaw Belleville, and for a declaration of defendants' liability for future response costs and damages which plaintiffs will incur at and in connection with the Site.

Plaintiffs allege that between October 1983 and May 1991, Laidlaw Belleville owned and operated the Site. During this time, the Illinois Environmental Protection Agency ("IEPA") issued a supplemental waste stream permit to Laidlaw Belleville which authorized it to accept and dispose at the Site filter waste material generated by defendants. The waste material was described as celite/darco filter cake ("filter cake") and was classified as a non-hazardous waste.

Defendants arranged with plaintiff for the disposal of filter cake based on defendants' representations that the filter cake was non-hazardous waste. Between October 1983 and May 1991, defendants sent numerous shipments of waste (including filter cake) to the Site, through Laidlaw as transporter. Laidlaw Belleville accepted and disposed of these shipments at the Site. During this time, defendants certified to plaintiffs and IEPA that the filter cake was a non-hazardous waste. Defendants later revealed that a portion of the filter cake transported to the Site was a hazardous waste within the meaning of § 101(14) of CERCLA,¹ because it had higher than allowable levels of barium and chromium.

Plaintiffs allege that there have been releases or threatened releases of hazardous substances from the Site, caused by practices and actions of defendants. Plaintiffs allege they have incurred costs in excess of $50,000.00 in responding to the releases and threatened releases, and will continue to incur necessary response costs to remove and remedy future releases or threats of release, as required by a Consent Order between Laidlaw Belleville and the State of Illinois. Plaintiffs allege they have not conducted or knowingly permitted generation, storage, treatment or disposal of hazardous substances at the Site.

The Consent Order between Laidlaw Belleville and the State of Illinois was entered June 28, 1995, in the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, in People of the State of Illinois v. Laidlaw Waste Systems (Belleville) Inc., Case No. 94-CH-182 (See Exh. C to Defts.' Mem.Supp.Mot.Dismiss.) Laidlaw Belleville did not admit any violation by entering into the Consent Order, see id. at p. 1, but the Consent Order may be used in any future enforcement action as evidence of a past adjudication of violation of the Illinois Environmental Protection Act. (Id., at pp. 1-2.)

The corporate predecessor of Mallinckrodt Chemical, Inc. also entered into a Consent Order with the State of Illinois, in People of the State of Illinois v. Mallinckrodt Specialty Chemicals Company, Case No. 92-CH-58 (See Exh. B to Defts.' Mem.Supp.) The Consent Order was based on an action to recover civil penalties, not to recover response costs. As part of the Consent Order, Mallinckrodt Chemical, Inc.'s corporate predecessor did not admit any violation, and no issue of law or fact was adjudicated. (Id. p. 1.)

Discussion. In the Complaint, plaintiffs asserts claims for declaratory relief under § 107 of CERCLA (Count I); damages under § 107 of CERCLA (Count II); contribution under § 113 of CERCLA (Count III, pleaded in the alternative to Count II); breach of contract/warranty (Count IV); misrepresentation (Count V); nuisance (Count VI); negligence (Count VII); and negligent misrepresentation (Count VIII). Defendants move to dismiss each count of the Complaint.

I.

Defendants first move to dismiss Counts I and II, plaintiffs' claims under § 107 of CERCLA. Defendants' primary argument is that plaintiffs lack standing to bring a cost recovery action under Section 107, because plaintiffs are liable parties under CERCLA,² and a liable party cannot bring an action under Section 107. The Court treats this aspect of defendants' motion as a motion for summary judgment because defendants refer to matters outside the pleadings in support of their motion.

Section 107(a) sets forth the scope of liability which may be imposed on private parties and the defenses they may assert. 42 U.S.C. § 9607(a). Liability under this section is imposed on four categories of...