Reynolds Metals Co. v. Arkansas Power & Light Co.

• Citation: 920 F. Supp. 991
• Decision Date: 26 March 1996
• Docket Number: Civil No. LR-C-95-281.
• Parties: REYNOLDS METALS COMPANY, a Delaware corporation, Plaintiff, v. ARKANSAS POWER & LIGHT COMPANY, an Arkansas Corporation, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

920 F. Supp. 991

REYNOLDS METALS COMPANY, a Delaware corporation, Plaintiff, v. ARKANSAS POWER & LIGHT COMPANY, an Arkansas Corporation, Defendant.

Civil No. LR-C-95-281.

United States District Court, E.D. Arkansas, Western Division.

March 26, 1996.

Ray F. Cox, Jr., Wright, Lindsey & Jennings, Little Rock, AR, Renata M. Manzo, James E. McKinnon, Brian D. Bertonneau, Reynolds Metals Company, Richmond, VA, for plaintiff.

Scott J. Lancaster, Friday, Eldredge & Clark, Little Rock, AR, for defendant.

MEMORANDUM OPINION AND ORDER

EISELE, District Judge.

Before the Court is Arkansas Power & Light Company's (AP & L's) Motion to Dismiss, filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Reynolds Metals Company (Reynolds) has responded to this motion, opposing the relief sought. For the reasons expressed in the following opinion, AP & L's motion will be granted.

I.

Reynolds' Complaint (Docket No. 1) asserts two independent causes of action against AP & L under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601 to 9675. First, Reynolds seeks to maintain a direct, private party recovery action against AP & L under 42 U.S.C. § 9607(a) (CERCLA § 107(a)) to recover "all necessary costs of response incurred at the Site by Reynolds." Complaint ¶ 25 (Count I). Second, and apparently in the alternative, Reynolds seeks to maintain a contribution action against AP & L under 42 U.S.C. § 9613(f) (CERCLA § 113(f)) to recover "costs of response in excess of Reynolds' equitable share." Complaint ¶ 29 (Count II). Additionally, Reynolds seeks to invoke the Court's supplemental jurisdiction, 28 U.S.C. § 1367(a), to maintain a contribution action against AP & L under Arkansas' Remedial Action Trust Fund Act (RATFA), Ark.Code Ann. §§ 8-7-501 to -523 (Michie 1993 & Supp.1995), specifically Ark.Code Ann. § 8-7-520 (Michie Supp.1995), to recover the "costs of the remedial action which are in excess of Reynolds' equitable share." Complaint ¶ 42 (Count III).

In its motion, AP & L argues that Counts I and III of Reynolds' Complaint fail, as a matter of law, to state a claim for relief against it, and that accordingly all but Count II of the Complaint should be dismissed. See Fed.R.Civ.P. 12(b)(6). In ruling upon this motion, the Court must accept the factual allegations of Reynolds' Complaint as true. Albright v. Oliver, ___ U.S. ___, ___, 114 S.Ct. 807, 810, 127 L.Ed.2d 114 (1994); Coleman v. Watt, 40 F.3d 255, 258 (8th Cir.1994). Moreover, the Court may grant AP & L's motion only if, after so viewing the pleadings, it is patently clear that there is no set of facts that Reynolds could prove thereunder which would entitle it to the relief sought in those counts of its Complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995).

Reynolds has alleged the following facts in its Complaint which, as discussed above, must be accepted as true.

From 1954 to 1985, Reynolds owned and operated an aluminum reduction plant in Clark County, Arkansas (the Site). AP & L supplied electrical services to the Site, and, in the course of doing so, AP & L installed and operated equipment, which it also owned and maintained, that used polychlorinated biphenyls (PCBs). Reynolds likewise owned and operated PCB-utilizing equipment at the Site. During the period described above, the Site experienced various incidents of leaks and/or spills involving PCB-containing fluids, which were caused by the equipment of both AP & L and Reynolds. Complaint ¶¶ 7-8.

When Reynolds decided to close its Clark County aluminum reduction plant, an environmental assessment was conducted at the Site by the Radian Corporation (Radian), a private environmental consultant. That assessment concluded that several areas of the Site were contaminated with PCBs, including areas on which AP & L's PCB-utilizing equipment had been located. In July, 1990, Reynolds, AP & L and Radian met with the Environmental Protection Agency's (EPA's) regional PCB coordinator to discuss the Site's PCB contamination problem, as well as potential clean-up plans. In August, 1990, Reynolds submitted a written PCB remediation plan proposal to the EPA, and in December, 1990 the EPA and Reynolds agreed upon a remedial course of action. Reynolds' PCB clean-up of the Site began in August, 1991 and was largely completed by September, 1992. Complaint ¶¶ 9-11. In December, 1992, Reynolds submitted a closure report to the EPA, which indicated that, with two exceptions (namely the interior of an area known as the "Cast House" and certain sections of a NPDES¹ ditch), the remediation efforts at the Site had been completed. The EPA confirmed this fact in March, 1993, and in 1994 Reynolds completed its remediation efforts at the Cast House, with the remediation of the NPDES ditch scheduled to be completed in 1995. Complaint ¶¶ 12-13. AP & L has declined to participate in any of these remediation efforts, Complaint ¶ 10, and Reynolds has incurred no less than $11,210,000 in remediation costs in cleaning up the Site. Complaint ¶ 14.

II.

The Court turns first to AP & L's CERCLA-related arguments. As the Court has previously explained, Reynolds is attempting to bring two separate CERCLA causes of action against AP & L: (1) a direct cost recovery action under § 107(a); and (2) a contribution action under § 113(f). The basic difference in these two causes of action, at least as they have plead, is that in its § 107(a) cause of action Reynolds is attempting to hold AP & L liable for all of its response costs, see 42 U.S.C. § 9607(a)(1)(B) (which provides in relevant part that "the owner and operator of a ... facility²" shall be held liable for "any ... necessary response costs incurred by any other person consistent with the national contingency plan"), while its § 113(f) cause of action only seeks to hold AP & L liable for a portion of its total response costs, see 42 U.S.C. § 9613(f)(1) (which provides, in relevant part, that "any person³ may seek contribution from any other person who is liable or potentially liable under section 9607(a)" for his equitable share of the total response costs). However, AP & L argues that because Reynolds, having incurred response costs pursuant to an agreement with the EPA, is itself a potentially responsible party (PRP)⁴ under CERCLA, it should be precluded from maintaining a direct cost recovery action against it under § 107(a), and that the only CERCLA claim Reynolds has against AP & L is a contribution action under § 113(f).

CERCLA is a strict liability statute, Farmland Indus. v. Morrison-Quirk Grain Corp., 987 F.2d 1335, 1339 (8th Cir.1993), that imposes joint and several liability upon RPs and/or PRPs in § 107(a) cost recovery actions, United States v. Colorado & E. R.R. Co., 50 F.3d 1530, 1535 (10th Cir.1995), and several liability in § 113(f) contribution actions. Plaskon Elec. Materials v. Allied-Signal, Inc., 904 F.Supp. 644, 651 (N.D.Ohio 1995). By its express terms, § 107(a) does not limit the ability of RPs and/or PRPs to bring an action thereunder against other PRPs. Instead, § 107(a) provides a private cost recovery action against the owner or operator of a facility to "any ... person" who has incurred response costs in connection with a CERCLA-related clean-up of that facility. 42 U.S.C. § 9607(a)(1)(B); see generally General Elec. Co. v. Litton Indust. Automation Sys., Inc., 920 F.2d 1415, 1417 (8th Cir.1990), cert. denied, 499 U.S. 937, 111 S.Ct. 1390, 113 L.Ed.2d 446 (1991). Thus, it appears that the plain language of § 107(a), standing alone, supports Reynolds' effort to bring a direct cost recovery action against AP & L, even though Reynolds itself is a PRP. Indeed, the Court is aware that some courts have interpreted CERCLA to permit such a result under § 107(a). See, e.g., Charter Twp. of Oshtemo v. American Cyanamid Co., 910 F.Supp. 332, 335-38 (W.D.Mich.1995); Transportation Leasing Co. v. California, 861 F.Supp. 931, 938 (C.D.Cal.1993); Companies for Fair Allocation v. Axil Corp., 853 F.Supp. 575, 579 (D.Conn.1994); City of N. Miami v. Berger, 828 F.Supp. 401, 407 n. 7 (E.D.Va.1993); United States v. Kramer, 757 F.Supp. 397, 416 (D.N.J.1991); Burlington N. R.R. Co. v. Time Oil Co., 738 F.Supp. 1339, 1342-43 (W.D.Wash.1990). However, the Court does not believe that § 107(a) should, or indeed can, be read in a vacuum, and the Court respectfully declines to follow these holdings.⁵ Instead, the Court believes that the text of § 107(a) must not be viewed in isolation, but in the context of CERCLA as a whole. See generally United States Nat'l Bank of Or. v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 2182, 124 L.Ed.2d 402 (1993) ("`In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the law as a whole, and to its object and policy.'") (citation omitted); King v. St. Vincent's Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991) ("A statute is to be read as a whole since the meaning of statutory language, plain or not, depends on context.") (citation omitted). In view of CERCLA's overall remedial scheme, and in light of the substantive changes made thereto by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613, 1615 (1986), the Court concludes that in cost recovery litigation between plaintiff RPs and/or PRPs and defendant PRPs, § 107(a) and § 113(f) must be read together, and, under this construction of CERCLA, that any cost recovery action brought by an RP and/or a PRP against another PRP must be viewed only as a contribution action under § 113(f), rather than a direct cost recovery action (or some sort of implied contribution action) governed by § 107(a).⁶United States v. Colorado & Eastern R.R. Co., 50 F.3d at 1534-36; United Tech....