Raytheon Co. v. McGraw-Edison Co.

• Decision Date: 13 October 1997
• Docket Number: No. 96-C-691.,96-C-691.
• Citation: 979 F.Supp. 858
• Parties: RAYTHEON COMPANY and Raytheon Appliances, Inc., Plaintiffs, v. McGRAW-EDISON COMPANY, INC., Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

979 F.Supp. 858

RAYTHEON COMPANY and Raytheon Appliances, Inc., Plaintiffs, v. McGRAW-EDISON COMPANY, INC., Defendant.

No. 96-C-691.

United States District Court, E.D. Wisconsin.

October 13, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard J. Lewandowski, Todd Palmer, DeWitt, Ross & Stevens, Madison, WI, for plaintiffs.

Dale E. Stephenson, Squire, Sanders & Dempsey, Cleveland, OH, for defendant.

DECISION AND ORDER

RANDA, District Judge.

This action asserts liability under the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as well as pendent state law theories of recovery. The matter comes before the Court on defendant's motion to dismiss the entire case for failure to state a claim. For the following reasons, the motion to dismiss is denied-in-part and granted-in-part.

I

In October, 1979, Raytheon Company and/or Raytheon Appliances, Inc., on behalf of itself and its subsidiary, Speed Queen Company (collectively, "Raytheon"), entered into a contract with McGraw-Edison Company, Inc.'s Laundry Products Division and Kitchen Appliances Division ("McGraw-Edison") for the purchase of an aluminum die casting operation in Omro, Wisconsin.¹ (Am. Compl. at ¶ 8.) Sixteen years later, in the summer of 1995, Raytheon began construction of a new loading dock on the property. (Am. Compl. at ¶ 10.) During construction, Raytheon discovered contamination in the underlying soil. (Am. Compl. at 11.) Raytheon notified the Wisconsin Department of Natural Resources (the "WDNR") of the contamination. (Am. Compl. at ¶ 12.) The WDNR responded with a letter dated July 3, 1995, directing Raytheon to investigate the contamination and develop a clean-up plan. (Am. Compl. at ¶ 13.) The soil already excavated remained stockpiled on site. (Am. Compl. at ¶ 14.) Soil analyses revealed the presence of polychlorinated biphenyls ("PCBs") and other contaminants in the excavated soil, and similar contaminants were found in the remaining soil on the property. (Am. Compl. at ¶ 15.) Upon investigation, Raytheon discovered that McGraw-Edison had disposed of various "hazardous substances" on the property prior to Raytheon's purchase of the same. (Am. Compl. at ¶ 17.) Raytheon, not being responsible for the disposal of contaminants on the property, wants McGraw-Edison to pay for the cost of cleaning up the property.

Raytheon alleges that, at the time of purchase, McGraw-Edison knew about its prior dumping activities on the property and should have cleaned up the mess and/or disclosed the same to Raytheon. Because McGraw-Edison failed to do so, Raytheon seeks prospective injunctive relief under RCRA, direct cost recovery under CERCLA § 107, contribution under CERCLA § 113, and compensatory damages under several pendent state law claims. In response, McGraw-Edison moves to dismiss the entire lawsuit for failure to state a claim.

In considering whether to grant a 12(b)(6) motion, the Court "must accept as true all well-pleaded factual allegations contained in the plaintiff's complaint, viewing all reasonable inferences in the light most favorable to the plaintiff." McCulley v. U.S. Dept. of Veterans Affairs, 851 F.Supp. 1271, 1276 (E.D.Wis.1994); see also, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir.1979). The complaint "must set forth factual allegations adequate to establish the essential elements of [the] claim...." McCulley, 851 F.Supp. at 1276 (citations omitted). The Court may dismiss the case only if "it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Id.; see also, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Mescall, 603 F.2d at 1269.

II

Raytheon asserts a RCRA citizen suit under 42 U.S.C. § 6972(a)(1)(B).² McGraw-Edison argues that Raytheon cannot bring suit under this section because (1) contaminated soil that has already been removed cannot pose an "imminent and substantial endangerment to health or the environment," and (2) Raytheon is impermissibly seeking a private remedy under the guise of a RCRA citizen suit.

Of course, McGraw-Edison is correct that the contaminated soil already excavated and removed from the property no longer poses an "imminent and substantial endangerment to health or the environment." Because a private party may not recover past clean-up costs under RCRA, this aspect of McGraw-Edison's argument is valid. See, Meghrig v. KFC Western, Inc., 516 U.S. 479, ___, ___, 116 S.Ct. 1251, 1254, 1256, 134 L.Ed.2d 121 (1996). However, Raytheon's RCRA suit does not seek recovery of the costs associated with the soil already excavated and removed. Those costs are sought by way of Raytheon's CERCLA claims. Raytheon's RCRA suit seeks prospective injunctive relief for contamination of the soil still remaining on the property. Raytheon alleges that the contaminants in the remaining soil may pose an imminent and substantial threat to persons or the environment. (Am. Compl. at ¶¶ 15, 28.) The citizen suit provision of RCRA "implies that there must be a threat which is present now, although the impact of the threat may not be felt until later." Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir.1994); see also, Meghrig, 516 U.S. at ___, 116 S.Ct. at 1255. "A finding of imminency does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present." Price, 39 F.3d at 1019. Raytheon's allegations meet this test. At the very least, a question of fact is presented that cannot be resolved on a 12(b)(6) motion. Cf. City of Toledo v. Beazer Materials and Services, Inc., 833 F.Supp. 646, 654 (N.D.Ohio 1993) ("Given that the [plaintiff] has alleged that the ongoing presence of hazardous wastes disposed of by the defendants presents an imminent and substantial endangerment, and that this Court must accept [such] allegations as true, [the defendants have] no colorable argument that the ... action should be dismissed.").³

To bring a RCRA citizen suit, a plaintiff must also act as a "private attorney general," rather than in pursuit of a private remedy. See, Environmental Defense Fund, Inc. v. Lamphier, 714 F.2d 331, 337 (4th Cir.1983); see also, Fallowfield Dev. Corp. v. Strunk, 37 ERC 1076 (E.D.Pa.1993); Commerce Holding Co., Inc. v. Buckstone, 749 F.Supp. 441 (E.D.N.Y.1990). McGraw-Edison contends that Raytheon's request for injunctive relief under RCRA is really an attempt to "reduce its own potential liability for such cleanup costs[,]" rather than an action on behalf of the public good. The 7th Circuit has already rejected this position in AM Int'l, Inc. v. Datacard Corp., 106 F.3d 1342 (7th Cir.1997). In Datacard, AMI argued that Datacard was not a proper party to bring a citizen suit, "contend[ing] that Datacard, a potentially responsible party under CERCLA, was not acting in the public interest...." Id. at 1349. The 7th Circuit "[agreed] that the idea behind citizen suit enforcement is to unleash an army of private attorneys general to force cleanups when the government drags its feet." Id. However, "the plain language of RCRA and CERCLA does not exclude parties like Datacard from the class of potential citizen suit plaintiffs. Rather, both RCRA and CERCLA allow any person to bring citizen suits." Id. Raytheon, like Datacard, qualifies as "any person" within the meaning of the statute and thus may pursue a citizen suit under RCRA irrespective of its motive.

III

Raytheon brings a CERCLA cost recovery action under 42 U.S.C. § 9607(a)⁴ and, in the alternative, a contribution action under 42 U.S.C. § 9613(f)(1)⁵. McGraw-Edison posits that the United States Supreme Court's decision in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), which clarified the presumption against the retroactive application of federal statutes, establishes that CERCLA applies only prospectively. Therefore, because the disposal activity at issue occurred prior to CERCLA's enactment, McGraw-Edison argues that Raytheon cannot assert a CERCLA claim. Landgraf does instruct that absent an express statement, there must be evidence of clear congressional intent favoring retroactive application of a statute. Id., 511 U.S. at 280, 114 S.Ct. at 1505. See also, Hughes Aircraft Co. v. United States ex rel. Schumer, ___ U.S. ___, ___, 117 S.Ct. 1871, 1875, 138 L.Ed.2d 135 (1997). However, pre-Landgraf, CERCLA consistently was found to apply retroactively. See, e.g., U.S. v. Northeastern Pharm. & Chem. Co., 810 F.2d 726 (8th Cir.1986) (recognizing the presumption against retroactive application of statutes and finding that Congress clearly intended for CERCLA to apply retroactively). Landgraf has not altered this reading of CERCLA. See, e.g., State of Nev. ex rel. Dept. Of Transp. v. U.S., 925 F.Supp. 691 (D.Nev.1996); U.S. v. Olin Corp., 107 F.3d 1506 (11th Cir.1997); Continental Title Co. v. Peoples Gas Light and Coke, Co., 959 F.Supp. 893 (N.D.Ill.1997); The Ninth Ave. Remedial Group v. Fiberbond, Corp., 946 F.Supp. 651 (N.D.Ind.1996); Gould Inc. v. A & M Battery & Tire Service, 933 F.Supp. 431 (M.D.Pa.1996). Only one district court to consider the issue held that Landgraf limited CERCLA to prospective application only, and that court's decision was reversed on appeal. See Olin Corp., 107 F.3d 1506, rev'g 927 F.Supp. 1502 (S.D.Ala.1996). Even prior to the reversal, other courts declined to follow the lower court's ruling. See, e.g., Gould Inc., 933 F.Supp. at 438 (finding the district court's decision in Olin unpersuasive in light of the "myriad of opinions applying CERCLA retroactively"). McGraw-Edison cites no other authority supporting its contrary reading of CERCLA. Therefore, aligning itself with the clear and overwhelming trend of cases on the issue, ...