Mr. (Vega Alta) v. Caribe General Elec. Products

• Citation: 31 F.Supp.2d 226
• Decision Date: 03 December 1998
• Docket Number: Civil No. 97-2294 (JAF).
• Parties: M.R. (VEGA ALTA), INC.; Santa Cruz, Inc.; Gomera (Dorado), Inc., and Monte Rey S.E., Plaintiffs, v. CARIBE GENERAL ELECTRIC PRODUCTS, INC.; General Electric Company; West Company of Puerto Rico, Inc.; The West Company, Inc.; Motorola Electronica de Puerto Rico, Inc.; Motorola International Development Corporation; Unisys Corporation; Harman Automotive Puerto Rico, Inc., and Harman Industries, Inc., Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 226

31 F.Supp.2d 226

M.R. (VEGA ALTA), INC.; Santa Cruz, Inc.; Gomera (Dorado), Inc., and Monte Rey S.E., Plaintiffs, v. CARIBE GENERAL ELECTRIC PRODUCTS, INC.; General Electric Company; West Company of Puerto Rico, Inc.; The West Company, Inc.; Motorola Electronica de Puerto Rico, Inc.; Motorola International Development Corporation; Unisys Corporation; Harman Automotive Puerto Rico, Inc., and Harman Industries, Inc., Defendants.

Civil No. 97-2294 (JAF).

United States District Court, D. Puerto Rico.

December 3, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Margaret N. Strand, Oppenheimer Wolff Donnelly and Bayh, Washington, DC, Jose R. Lazaro-Paoli, Guillermety & Kelly, San Juan, PR, for M.R. (Vega Alta) Inc, Santa Cruz, Inc., Gomera (Dorado), Inc, Monte Rey S.E., plaintiffs.

Eric A. Tulla, Rivera, Tulla & Ferrer, Hato Rey, PR, Langley R. Shook, Sidley & Austin, Washington, DC, Carolyn H. Williams, Philip A. Sechler, Williams & Connolly, Washington, DC, for Caribe General Elec. Products, Inc., General Elec. Co., defendants.

Michael Bogdonoff, Dechert, Price & Rhoads, Philadelphia, PA, Jay A. Garcia-Gregory, Fiddler, Gonzalez & Rodriguez, San Juan, PR, John J. Ennis, Deckert, Price and Rhoads, Philadelphia, PA, for West Co. of PR, Inc., West Co., Inc., defendants.

Rafael Perez-Bachs, McConnell Valdes, San Juan, PR, Jacqueline Denning, Arnold & Porter, Washington, DC, for Motorola Electronica De P.R., Inc., Motorola Intern. Development Corp., defendants.

Eric A. Tulla, Rivera, Tulla & Ferrer, Hato Rey, PR, Langley R. Shook, Sidley & Austin, Washington, DC, Christopher H. Buckley, Jonathan K. Tycko, Gibson, Dunn and Crutcher LLP, Washington, DC, for Unisys Corporation, Harman Automotive Puerto Rico, Inc., Harvard Industries, Inc., defendants.

Charles A. Quinlan, III, U.S. Department of Justice, Washington, DC, for United States Environmental Protection Agency, Carol M. Browner, Jeanne M. Fox, defendants.

OPINION AND ORDER

FUSTE, District Judge.

Plaintiffs, M.R. (Vega Alta), Inc., Santa Cruz, Inc., Gomera (Dorado), Inc., and Monte Rey S.E., bring a complaint against Defendants Motorola Electronica de Puerto Rico, Inc.; Motorola International Development Corporation; Unisys Corporation; Caribe General Electric Products, Inc.; General Electric Company; West Company of Puerto Rico, Inc.; and West Company, Inc. (all these defendants jointly, "Private Defendants"), and the Environmental Protection Agency ("EPA"), for alleged violations of various state and federal laws.

I. Causes of Action

A. Counts 1-8 Against Private Defendants

Plaintiffs allege ten causes of action. The first count seeks the costs of response through the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675, from Private Defendants. See 42 U.S.C § 9607(a). The second count is a citizens suit under CERCLA § 310(a)(1) against Private Defendants, seeking enforcement of an EPA order issued under CERCLA § 106, 42 U.S.C. § 9606(a). See 42 U.S.C. § 9659(a)(1). The third count is for interference with contract under Article 1802, Civil Code of Puerto Rico, 1930, as amended, 31 L.P.R.A. § 5141 (1990). The fourth count is that Plaintiffs were a third-party beneficiary of the contracts between Defendants and the government of Puerto Rico. See 31 L.P.R.A. § 3374 (1990). The fifth count seeks damages for negligence against Private Defendants, pursuant to Article 1802 of the Puerto Rico Civil Code. See 31 L.P.R.A. § 5141 (1990). The sixth count alleges that Private Defendants are liable for nuisance, pursuant to Article 277 of the Puerto Rico Civil Code. See 32 L.P.R.A. § 2761 (1990). The seventh count alleges that Private Defendants' release of substances into Plaintiffs' underground water supply constitutes a trespass against Plaintiffs' property. The eighth count alleges that as a result of the Private Defendants' abnormally dangerous activities, the mishandling of hazardous substances, they are strictly liable.

B. Counts 9-10 Against the EPA

The ninth count is a citizens suit pursuant to CERCLA § 310(a)(2) against the EPA, which seeks judicial review of the EPA's oversight of the CERCLA cleanup and injunctive relief. 42 U.S.C. § 9659(a)(1). The tenth count is a torts claim against the EPA pursuant to the Federal Torts Claim Act ("FTCA"), 28 U.S.C. § 1346(b).

II. Legal Standard for Motion to Dismiss

A defendant may move to dismiss an action against it based only on the pleadings for "failure to state a claim upon which relief can be granted ..." Fed.R.Civ.P. 12(b)(6). In assessing a motion to dismiss, "[w]e begin by accepting all well-pleaded facts as true, and we draw all reasonable inferences in favor of the [nonmovant]." Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir.1993); see also Coyne v. Somerville, 972 F.2d 440, 442-43 (1st Cir.1992). 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).

III. Factual Background

The Vega Alta Site ("Vega Alta" or the "Site") in Vega Alta, Puerto Rico, extends over five square miles and includes a public water supply well field and industrial park. The Site has facilities owned and/or operated, or formerly owned and/or operated, by a number of manufacturers, including the Private Defendants. Since at least the 1950s, manufacturers operating at the Site have used and disposed of hazardous substances.

Plaintiffs allege that the Private Defendants, at their plants in Vega Alta, used chlorinated solvents and other chemicals and hazardous substances in their operations, and disposed of the hazardous wastes into an open trench and elsewhere within the Site. Plaintiffs allege that the underground water beneath their property and their public and private well water is contaminated with trichloroethylene (TCE), trichloroethane (TCA), tetrachloroethylene (PCE) and other hazardous substances derived from the break-down of these chemicals that Private Defendants dumped. On September 21, 1984, the EPA placed the Vega Alta Public Well Field site on the National Priorities List.

In 1984, the EPA commenced a study to investigate possible avenues to remedy contamination of the water supply. The EPA divided the cleanup activities into two categories: those addressing groundwater contamination and those addressing soil or source contamination. The EPA began its remedial action with the groundwater contamination.

Following a study in 1987, the EPA issued the first Record of Decision ("ROD") for the Vega Alta Site selecting a remedy of pumping the contaminated groundwater to the surface and treating it to remove the hazardous substances ("pump and treat" remedy). In 1988, pursuant to CERCLA § 106, 42 U.S.C. § 9606, the EPA issued the first administrative order requiring responsible parties, Caribe GE, Motorola, Harman, West, and PRIDCO to pay for and implement the remedial action selected in the ROD. Plaintiffs allege that these parties never complied with this provision of the order. The EPA modified its remedial approach and administrative order in 1989, 1994, and 1997.¹ The EPA alleges that each time it modified a selected remedy for the groundwater contamination, it explained its reasons in an "Explanation of Significant Differences" ("ESD"), in accordance with 42 U.S.C. § 9617(c).

The EPA also took remedial action regarding the soil contamination. In 1990, the EPA issued an administrative order to the responsible parties, requiring them to conduct an investigation regarding the soil contamination. In 1997, the EPA issued an ROD regarding the soil contamination which included: (1) the operation of a Soil Vapor Extraction ("SVE") treatment system to remove volatile organic compounds from contaminated soils; (2) the possible inclusion of an air treatment system on the SVE to ensure that air discharges do not exceed permissible discharge limits; and (3) the implementation of a monitoring program for sample collection and analysis of soil vapors before and after operation of the SVE treatment system.

IV. Counts 1, 2, and 9: CERCLA Claims

CERCLA, 42 U.S.C. §§ 9601-9675, establishes a comprehensive statutory scheme to address and effectuate the cleanup of actual or threatened releases of hazardous substances into the environment. CERCLA provides the EPA with expansive authority to effectuate a cleanup when there is an actual or threatened release of a hazardous substance into the environment at a particular site. CERCLA requires the President to create a National Priorities List ("NPL") establishing the order of priority for the cleanup of national hazardous waste sites. 42 U.S.C. § 9605(a)(8). Adding a site to the National Priorities List designates it as a Superfund site. The EPA may directly undertake a removal or remedial action² that it deems "necessary to protect the public health or welfare or environment." CERCLA § 104(a)(1), 42 U.S.C. § 9604(a)(1). Alternatively, the EPA may compel responsible parties to undertake a removal or remedial action, either by issuing an administrative order, or by seeking judicial injunctive relief. CERCLA § 106(a), 42 U.S.C. § 9606(a).

As federal courts are of limited jurisdiction, a plaintiff may file suit in federal court only pursuant to a statutory grant of authority which permits the court to hear the asserted claim. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Moreover, when suing the United States or an instrumentality thereof, a plaintiff may not rely upon the general federal question jurisdiction of 28 U.S.C. § 1331, but must bring suit pursuant to a specific statutory provision that waives the government's sovereign immunity. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). CERCLA § 310(a...