Raytheon Aircraft Co. v. U.S.

• Decision Date: 26 May 2006
• Docket Number: No. 05-2328-JWL.,05-2328-JWL.
• Citation: 435 F.Supp.2d 1136
• Parties: RAYTHEON AIRCRAFT COMPANY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Kansas

435 F.Supp.2d 1136

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

No. 05-2328-JWL.

United States District Court, D. Kansas.

May 26, 2006.

COPYRIGHT MATERIAL OMITTED

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

Lois Godfrey Wye, Natalia Sorgente, 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) seeking cost recovery or contribution from the Army Corps of Engineers as a liable party. Plaintiff also seeks a declaratory judgment that the provisions of CERCLA governing the unilateral administrative order regime are unconstitutional under the Due Process Clause of the Fifth Amendment.

This matter is presently before the court on the United States' motion to dismiss or, in the alternative, for summary judgment (doc. # 13). As explained below, the motion is granted in part and denied in part. Specifically, the motion is granted with respect to Raytheon's claim for cost recovery pursuant to CERCLA section 107(a), but the court would permit Raytheon to amend its complaint to assert that it is not a potentially responsible person if it intends to so assert, as only parties who are not themselves potentially responsible persons may assert claims for cost recovery under section 107(a) under Tenth Circuit case law; the motion is granted with respect to Raytheon's claims for contribution under CERCLA section 113(f) (except to the extent Raytheon seeks to recover some portion of the costs incurred for work performed pursuant to two AOCs); the motion is granted with respect to Raytheon's claims for contribution under federal common law; and the motion is granted with respect to Raytheon's due process claims. The motion is otherwise denied and the court finds that Raytheon has an implied right to contribution under CERCLA section 107(a) such that it may pursue a claim for contribution against the Army Corps of Engineers.

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. From 1942 through 1946, the United States Army constructed and the Army Air Corps operated the Herington Army Airfield (HAAF). 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 Hering-ton 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. Thereafter, in March 2000, the EPA issued an Administrative Order on Consent (AOC) pursuant to CERCLA section 122(d). In this AOC, the EPA found that Raytheon may be liable under section 107(b) of CERCLA and ordered Raytheon to conduct a removal action to address TCE and TCE degradation products at TCPA. The AOC further required Raytheon to pay for 100 percent of the work and 100 percent reimbursement of oversight costs incurred by the EPA. Raytheon alleges that it has incurred response costs for work performed under the AOC, including the EPA's oversight costs. The Army Corps of Engineers has not contributed to these costs. In November 2000, Raytheon signed an Administrative Order on Consent with the Kansas Department of Health and Environment ("KDHE") to perform a remedial investigation/feasibility study of TCPA. Raytheon alleges that it has incurred response costs for work performed under the KDHE AOC and that the Army Corps of Engineers has not contributed to these costs.

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. The UAO requires Raytheon to perform work that may cost Raytheon, at a minimum, $3,500,000.00. 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.

Raytheon now seeks to recover from the Army Corps of Engineers all or some portion of the costs that Raytheon has incurred performing work required by the two AOCs and in response to the UAO.

II. The CERCLA Cost Recovery and Contribution Framework

Congress enacted CERCLA "to facilitate the expeditious cleanup of environmental contamination caused by hazardous waste releases," Sierra Club v. Seaboard Farms Inc., 387 F.3d 1167, 1172 (10th Cir.2004) (citing Daigle v. Shell Oil Co., 972 F.2d 1527, 1533 (10th Cir.1992)), and to establish a "financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites." Young v. United States, 394 F.3d 858, (10th Cir.2005) (quoting Public Serv. Co. of Colo. v. Gates Rubber Co., 175 F.3d 1177, 1181 (10th Cir. 1999)). Thus, "the twin aims of CERCLA are to cleanup hazardous waste sites and impose the costs of such cleanup on parties responsible for the contamination." Id. (citing Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996)). Under the statutory scheme, the "former ... must precede the latter." Id. (citing Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 91 (2d Cir.2000)).

CERCLA encourages "private parties to assume the financial responsibility of cleanup by allowing them to seek recovery from others." Id. (quoting FMC Corp. v. Aerb Indus., Inc., 998 F.2d 842, 847 (10th Cir.1993)). Specifically, CERCLA "provides two types of legal actions by which parties can recoup some or all of their costs associated with hazardous waste cleanup: cost recovery actions under § 107(a), 42 U.S.C. § 9607(a), and contribution actions under § 113(f), 42 U.S.C. § 9613(f)." Id. (quoting United States v. Colorado & Eastern R.Co., 50 F.3d 1530, 1535 (10th Cir.1995)); accord Cooper Indus., Inc. v. Avian Servs., Inc., 543 U.S. 157, 163, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004) ("CERCLA provide[s] for a right to cost recovery in certain circumstances, § 107(a), and separate rights to contribution in other circumstances, §§ 113(f)(1), 113(f)(3)(B)").

Under section 107(a), the government may recover its response costs from four classes of potentially responsible persons (PRPs). Cooper Indus., 543 U.S. at 161, 125 S.Ct. 577 (citing § 107(a)(4)(A)). Section 107(a) further provides that PRPs shall be liable for "any other necessary costs of response incurred by any other person consistent with the national contingency plan." Id. (quoting § 107(a)(4)(B)). Section 107(a)(4)(B), then, allows private parties to recoup costs from other private parties in certain circumstances. See id. at 163 n. 3. Section 113(f) was added to CERCLA with the enactment of the Superfund Amendments and Reauthorization Act (SARA) of 1986 to expressly recognize a right of contribution. Colorado & Eastern R.Co., 50 F.3d at 1536.¹ Pursuant to section 113(f)(1), "any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title." SARA also created a separate express right of contribution for "[a] person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement." § 113(f)(3)(B).

III. Raytheon's Cost Recovery and Contribution Claims

Raytheon is seeking to recover...