Raytheon Aircraft Co. v. U.S.

• Decision Date: 10 August 2007
• Docket Number: No. 05-2328-JWL.,05-2328-JWL.
• Citation: 501 F.Supp.2d 1323
• Court: U.S. District Court — District of Kansas
• Parties: RAYTHEON AIRCRAFT COMPANY, Plaintiff, v. UNITED STATES of America, Defendant.

Page 1323

501 F.Supp.2d 1323

RAYTHEON AIRCRAFT COMPANY, Plaintiff, v. UNITED STATES of America, Defendant.

No. 05-2328-JWL.

United States District Court, D. Kansas.

August 10, 2007.

COPYRIGHT MATERIAL OMITTED

Beverlee J. Roper, Daryl G. Ward, Stephen J. Torline, Blackwell Sanders Peper Martin LLP, Kansas City, MO, for Plaintiff.

Heather E. Gange, Jonathan P. Porier, Mary Whittle, Natalia Sorgente, Scott J. Jordan, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Plaintiff Raytheon Aircraft Company filed suit against the United States `of America under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) asserting in Count V of its complaint that CERCLA's section 106 remedial scheme violates due process, both as written and as applied. This matter is now before the court on defendant's motion to dismiss or, in the alternative, for summary judgment on Count V of Raytheon's complaint. As will be explained, the motion is granted.¹

I. Factual Background

The facts presented here are taken from Raytheon's complaint and, for purposes of the United States' motion, the court accepts these facts as true.² From 1942 through 1946, the United States Army constructed and the Army Air Corps operated the Herington Army Airfield (RAAF). During this time period, the Army Air Corps processed bombing crews and aircraft as part of the World War II war effort. The Army Air Corps also performed maintenance on B-29 aircraft, including engine repair, engine replacement, spark plug degreasing, hydraulic repair and repainting. In conducting such maintenance, the Army Air Corps utilized volatile organic compounds and chlorinated degreasing solvents, including trichloroethylene (TCE). The Army Air Corps' civilian and military employees spilled, poured and released these solvents, including TCE, onto the ground at HAAF and into drains that discharged directly to the environment.

In 1948, the United States quitclaimed HAAF to the City of Herington, Kansas; thereafter, the City of Herington renamed the site the Tri-County Public Airport ("TCPA") and leased portions of it to commercial tenants, including Beech Aircraft Company ("Beech"), the predecessor to Raytheon Aircraft Company ("Raytheon"). Beginning in 1950, Beech leased parts of the site from the City and, until 1960, used portions of its leasehold as a military aircraft refurbishing facility and for various manufacturing purposes, including the production of wing fuel dispersing tanks and military aircraft starter generators.

Between 1993 and 1997, the Environmental Protection Agency (EPA) conducted investigations at TCPA to determine whether the Army Air Corps' activities during World War II had caused soil or groundwater contamination. The EPA detected TCE and other contaminants at TCPA. In October 1997, the EPA tested private groundwater wells in the area around TCPA and detected TCE in some of the groundwater samples. That same month, the EPA contacted Raytheon about contamination at the site and Raytheon's possible status as a potentially responsible person ("PRP"). In 1998, the EPA began an expanded site investigation/remedial investigation at TCPA to clarify that the release of TCE had occurred and to determine the extent of contamination. In response to a request for information issued by the EPA to the United States Army Corps of Engineers, the Army Corps of Engineers summarily denied that it had polluted TCPA and apparently denied using TCE at the site.

In September 2004, the EPA, pursuant to CERCLA section 106, issued a unilateral administrative order (UAO) to Raytheon and the City of Herington, in which it identified Raytheon as a PRP and directed Raytheon to excavate and properly dispose of TCE-contaminated soils from an insular location at TCPA where, according to Raytheon, the Army Corps of Engineers operated a TCE-vapor degreaser. Raytheon alleges that the work required by the UAO involves a separate and distinct area of the site from the area where Beech had its wing tank manufacturing operation (an operation that, as conceded by Raytheon, utilized a TCE-degreaser). Nonetheless, Raytheon agreed to perform the work required in the UAO and, in doing so, expended nearly $2.5 million. In September 2006, the EPA issued a notice of completion informing Raytheon that all work at the Site had been fully performed in accordance with the UAO.

II. Pertinent Statutory Framework

CERCLA is "best known as setting forth a comprehensive mechanism to cleanup hazardous waste sites under a restoration-based approach." New Mexico v. General Elec. Co., 467 F.3d 1223, 1244 (10th Cir.2006) (citing United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998)). CERCLA's principal aims "are to effectuate the cleanup of hazardous waste sites and impose cleanup costs on responsible parties." Id. (citing Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996)). The EPA has the authority under CERCLA to effectuate hazardous waste cleanup in two primary ways — it can take responsive action itself and then seek reimbursement from responsible parties, see 42 U.S.C. § 9607(a)(4)(A), or it can compel responsible parties to perform the cleanup. See id. § 9606(a); Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 161, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004).

In compelling responsible parties to perform the cleanup, the EPA issues an administrative order under section 106 of CERCLA setting out the required remedial action. The EPA can enforce its order by filing suit in federal district court and in that suit the EPA can also seek civil penalties up to $25,000 for each day the violation or non-compliance continues, 42 U.S.C. § 9606(b), and punitive damages up to three times "the amount of any costs incurred" by the Superfund as a result of the party's non-compliance. Id. § 9607(c)(3). No penalties can be imposed and no punitive damages can be awarded, however, if the district court determines that the recipient had "sufficient cause" for not complying with the order. Id. §§ 9606(b), 9607(c)(3). Moreover, even if the district court determines that the recipient did not have sufficient cause, the district court retains the discretion to determine whether noncompliance warrants the imposition of penalties or punitive damages and, if so, the amount of such penalties or damages. See id.

In turn, the recipient of an administrative order has at least two options upon receiving the order if it does not believe that it is responsible for the cleanup. First, it can decline to comply with the order and wait for the EPA to file an enforcement suit. Second, the recipient can comply with the order and then petition the EPA for reimbursement of its costs plus interest. Id. § 9606(b)(2)(A). If the petition is denied, the party may file suit in federal district court and will prevail only upon a showing that it is not liable for response costs under section 107(a) or, if the party is liable, upon a showing that the required response action was arbitrary and capricious. See id. § 9606(b)(2)(B)-(D).

III. Standard

The court will dismiss a cause of action for failure to state a claim only when the factual allegations fail to "state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The complaint need not contain detailed factual allegations, but a plaintiff's obligation to provide the grounds of entitlement to relief requires more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic, 127 S.Ct. at 1964-65. The court must accept the facts alleged in the complaint as true, even if doubtful in fact, id. at 1965, and view all reasonable inferences from those facts in favor of the plaintiff, Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir.2006). Viewed as such, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic, 127 S.Ct. at 1965 (citations omitted). The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

IV. Discussion

In Count V of its complaint, Raytheon asserts that CERCLA's section 106 remedial scheme — both as written and as applied in this particular case — violates Raytheon's procedural due process rights guaranteed by the Fifth Amendment.³ Raytheon articulates three theories in support of its claim — that the section 106 remedial scheme deprives Raytheon of various protected interests without due process of law; that the statutory scheme violates due process under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), because the penalties imposed for challenging a section 106 administrative order are so coercive that they deprived Raytheon of any meaningful opportunity to challenge that order in court; and that the United States'"dual role" in this case as both the enforcer of CERCLA and a potentially responsible party at the Site violates due process because the United States, by issuing a section 106 administrative order only to Raytheon, has ignored its own liability and has shifted that liability to Raytheon.

A. Deprivation of Protected Interests

Raytheon asserts that the EPA's issuance of the UAO deprived Raytheon of its property interests by requiring Raytheon to perform work that ultimately cost Raytheon nearly $2.5 million and/or by imposing on Raytheon a legal obligation (where none existed before the...