Richland-Lexington Airport v. Atlas Properties, Civ. A. No. 3:92-750-21.

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtTRAXLER
Citation854 F. Supp. 400
PartiesRICHLAND-LEXINGTON AIRPORT DISTRICT, Plaintiff, v. ATLAS PROPERTIES, INC., d/b/a Carolina Chemicals, James T. Wilds, Jr., United States of America, and Westinghouse Remediation Servs., Inc., Defendants.
Decision Date03 March 1994
Docket NumberCiv. A. No. 3:92-750-21.

854 F. Supp. 400

RICHLAND-LEXINGTON AIRPORT DISTRICT, Plaintiff,
v.
ATLAS PROPERTIES, INC., d/b/a Carolina Chemicals, James T. Wilds, Jr.,1 United States of America, and Westinghouse Remediation Servs., Inc., Defendants.

Civ. A. No. 3:92-750-21.

United States District Court, D. South Carolina, Columbia Division.

March 3, 1994.


854 F. Supp. 401
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854 F. Supp. 402
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854 F. Supp. 403
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854 F. Supp. 404
Clifford O. Koon, Jr., Columbia, SC, for plaintiff

David Reece Williams, III, Raymond E. Clark, Asst. U.S. Atty., Columbia, SC, Michael T. McCaul, Ann V. Crowley, Naikang Tsao, Washington, DC, L. Gray Geddie, Jr., Phillip A. Kilgore, Greenville, SC, for defendants.

854 F. Supp. 405

O-R-D-E-R

TRAXLER, District Judge.

I. INTRODUCTION

Before the court are the objections to the report and recommendation of the magistrate judge, see 28 U.S.C.A. § 636(b)(1) (West 1993), and a motion for summary judgment, see Fed.R.Civ.P. 56(c). Richland-Lexington Airport District ("RLAD") brought various claims2 pursuant to the Federal Torts Claim Act ("FTCA"), 28 U.S.C.A. §§ 2671-2680 (West 1965 & Supp.1993), against the United States. The United States, through the Environmental Protection Agency ("EPA"), moved to dismiss these FTCA claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that this court lacked subject matter jurisdiction to entertain these claims. RLAD also brought a claim against the EPA pursuant to § 9607(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C.A. §§ 9601-9657 (West 1983 & Supp.1993). Likewise, Westinghouse Remediation Services, Incorporated ("WRS"), and Atlas Properties, Incorporated, doing business as Carolina Chemicals ("Carolina"), brought crossclaims for indemnity against the EPA pursuant to § 9607(e) of CERCLA. The EPA moved to dismiss RLAD's CERCLA claim and WRS and Carolina's CERCLA crossclaims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, contending that RLAD, WRS, and Carolina failed to state claims upon which relief could be granted. Additionally, the EPA moved to dismiss WRS's contract claim against it pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, again contending that this court lacked subject matter jurisdiction to entertain this claim. The magistrate judge recommended denial of the EPA's motion to dismiss the FTCA claims asserted by RLAD; however, the magistrate judge recommended that RLAD's CERCLA claim asserted against the EPA be dismissed for failure to state a claim. The magistrate judge further recommended that the indemnity crossclaims by WRS and Carolina be dismissed for failure to state a claim and that the contract claim by WRS be dismissed for lack of subject matter jurisdiction. The EPA has objected to the report and recommendation with respect to the FTCA claims, again contending that this court lacks subject matter jurisdiction with respect to these claims. WRS has objected to the magistrate judge's recommendation that its indemnity crossclaim and breach of contract crossclaim be dismissed. Carolina has not objected to the report and recommendation. Also before this court is the motion by WRS for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure against RLAD's claims.3 Concluding that this court lacks jurisdiction to entertain RLAD's FTCA claims, the EPA's motion to dismiss the claims brought pursuant to the FTCA is granted; also, the EPA's motion to dismiss the CERCLA claim is granted. Likewise, the EPA's motion to dismiss the indemnity crossclaims of WRS and Carolina is granted, as is the EPA's motion to dismiss the breach of contract crossclaim by WRS. Finally, the motion by WRS for summary judgment is granted.

II. THE FACTS

The material facts are not disputed. Carolina owned and operated a pesticide manufacturing and packaging plant on its property ("site"), which is adjacent to property owned by RLAD. As a result of contamination of Carolina's property, the EPA instituted

854 F. Supp. 406
clean-up activities and employed WRS to remove the hazardous wastes from the site. Accordingly, WRS excavated, removed, and stockpiled the contaminated soil from the site. RLAD avers that this stockpile was partially deposited on its property; and as a result, its property became contaminated. The parties do not dispute that a portion of the stockpile was on RLAD's property, although the EPA argues that RLAD's property was already contaminated, the stockpile notwithstanding

By letter dated February 16, 1990, RLAD notified the EPA that the stockpile was partially situated on RLAD's property, describing the alleged misplacement as "inadvertent and unintentional." In this letter, RLAD further stated that it supported the EPA's clean-up efforts. Finally, RLAD proposed a meeting with the EPA to address the parties' contentions. This letter contained no statement that RLAD was seeking a claim against the United States, nor did it reference any amount of damages for which RLAD sought compensation.

On March 15, 1990, the EPA responded to this letter, answering the concerns RLAD expressed and agreeing that a meeting was appropriate. The EPA reiterated its contentions that part of RLAD's property was contaminated prior to the stockpile's placement, that this contamination was not caused by the stockpile, that this contamination posed a threat to the environment, and that RLAD may be a potentially responsible party with respect to contamination.

By letter dated March 23, 1990, RLAD characterized the EPA's letter of March 15, 1990 as "designed to posture or intimidate." RLAD repeated its desire to convene a meeting, disclaimed any responsibility for contamination, and attributed any contamination to misplacement of the stockpile. This letter further stated that RLAD was "prepared to discuss the EPA's dumping of hazardous waste on RLAD's property and its plans to remove it and compensate the RLAD for any damages that the EPA has caused." No amount of compensation was demanded, however.

RLAD and the EPA eventually convened a meeting on March 27, 1990. This meeting was apparently little more than a recitation of the parties' original contentions: RLAD disclaimed any liability for contamination, while the EPA maintained that portions of RLAD's property apart from that on which the stockpile was placed was already contaminated and that this contamination was not the result of the stockpile. The EPA summarized the results of the meeting by a letter to RLAD dated April 18, 1990.

By two more letters dated April 24, 1990 and May 15, 1990, RLAD requested information that the EPA had concerning clean-up activities. These letters further stated that the EPA could have access to RLAD's property to effectuate any clean-up. As with the previous letters, RLAD never stated in these letters that it was pursuing a claim against the United States because of the misplaced stockpile, nor did these letters state that RLAD was entitled to a definitive amount of damages.

On May 17, 1990, RLAD wrote another letter to the EPA. This letter recited what RLAD considered to be a reflection of the parties' understanding with respect to cleanup of the site. RLAD also reiterated its assertion that it was not a potentially responsible party with respect to any contamination. This letter did not state that RLAD was bringing a claim or seeking a specific amount of damages against the United States.

Eventually, RLAD instituted these proceedings against the Defendants pursuant to the FTCA and CERCLA. The EPA responded that this court lacked subject matter jurisdiction to hear the FTCA claims because RLAD had not complied with the statutory requirements of § 2675(a) of the FTCA. The EPA contended that the correspondence between RLAD and the EPA did not constitute a claim as prescribed by § 2675(a). Specifically, the EPA asserted that RLAD failed to file notice in writing that RLAD was suing the United States and that RLAD failed to provide a sum certain with respect to its alleged damages. With respect to the CERCLA claim, the EPA contended that RLAD failed to state a claim upon which relief could be granted because the United

854 F. Supp. 407
States had not waived its sovereign immunity with respect to this claim. Concluding that the correspondence between RLAD and the EPA fulfilled the requirements of § 2675(a), the magistrate judge recommended that RLAD's claims brought under the FTCA proceed. The magistrate judge recommended, however, that RLAD's CERCLA claim be dismissed; likewise, the magistrate judge concluded that WRS and Carolina's claims against the EPA should be dismissed. From the various recommendations of the magistrate judge, the parties have interposed objections. This court will consider the objections of the EPA and WRS to the magistrate judge's report and recommendation, as well as the motion for summary judgment filed by WRS against RLAD

III. THE PROCEDURAL STANDARD

A. The Dismissal Standard

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the EPA has moved to dismiss RLAD's claims brought pursuant to the FTCA and WRS's breach of contract claim for lack of subject matter jurisdiction. Additionally, the EPA moved to dismiss RLAD, WRS, and Carolina's CERCLA claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil procedure for failure to state a claim upon which relief could be granted. Motions raised via Rules 12(b)(1) and 12(b)(6) are governed by different legal standards. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991). The party bearing the burden of proof differs with respect to the two motions: if "subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion. On the other hand, under Rule...

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31 practice notes
  • New Mexico ex rel. N.M. Env’t Dep't v. U.S. Envtl. Prot. Agency, No. 16–CV–465 MCA/LF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 12, 2018
    ...others to execute the will of the United States ‘makes little sense.’ " Richland–Lexington Airport District v. Atlas Properties, Inc. , 854 F.Supp. 400 (D.S.C. 1994) (quoting Boyle v. United Techs. Corp. , 487 U.S. 500, 511–512, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988) ). Indeed, the primary ......
  • Murray Energy Corp. v. McCarthy, Civil Action No. 5:14-CV-39
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • October 17, 2016
    ...satisfy itself as to the existence of its power to hear the case." Id.; see also Richland-Lexington Airport Dist. v. Atlas Properties, 854 F.Supp. 400, 407 (D. S.C. 1994) (cogently explaining the differences between dismissal procedure under Rule 12(b)(1) and summary judgment under Rule 56(......
  • Pettiford v. City of Greensboro, Civil Action No. 1:06cv1057.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • May 30, 2008
    ...of the nature of the relationship that gives rise to immunity. See, e.g., Richland-Lexington Airport Dist. v. Atlas Props., Inc., 854 F.Supp. 400, 423 (D.S.C. 1994) (relying on affidavits); In re World Trade Ctr. Disaster Site Litig., 456 F.Supp.2d 520, 564-65 (S.D.N.Y.2006) (relying on dep......
  • Bennett v. Mis Corp., No. 08-2567.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...performance contract context under 28 U.S.C. § 1442(a)(1)); see also Richland-Lexington Airport Dist. v. Atlas Props., Inc., 854 F.Supp. 400, 421 (D.S.C.1994) (“[T]here is simply no reason why a nonmilitary contractor should be barred from enjoying this extension of immunity simply because ......
  • Request a trial to view additional results
30 cases
  • New Mexico ex rel. N.M. Env’t Dep't v. U.S. Envtl. Prot. Agency, No. 16–CV–465 MCA/LF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 12, 2018
    ...others to execute the will of the United States ‘makes little sense.’ " Richland–Lexington Airport District v. Atlas Properties, Inc. , 854 F.Supp. 400 (D.S.C. 1994) (quoting Boyle v. United Techs. Corp. , 487 U.S. 500, 511–512, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988) ). Indeed, the primary ......
  • Murray Energy Corp. v. McCarthy, Civil Action No. 5:14-CV-39
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • October 17, 2016
    ...satisfy itself as to the existence of its power to hear the case." Id.; see also Richland-Lexington Airport Dist. v. Atlas Properties, 854 F.Supp. 400, 407 (D. S.C. 1994) (cogently explaining the differences between dismissal procedure under Rule 12(b)(1) and summary judgment under Rule 56(......
  • Pettiford v. City of Greensboro, Civil Action No. 1:06cv1057.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • May 30, 2008
    ...of the nature of the relationship that gives rise to immunity. See, e.g., Richland-Lexington Airport Dist. v. Atlas Props., Inc., 854 F.Supp. 400, 423 (D.S.C. 1994) (relying on affidavits); In re World Trade Ctr. Disaster Site Litig., 456 F.Supp.2d 520, 564-65 (S.D.N.Y.2006) (relying on dep......
  • Bennett v. Mis Corp., No. 08-2567.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...performance contract context under 28 U.S.C. § 1442(a)(1)); see also Richland-Lexington Airport Dist. v. Atlas Props., Inc., 854 F.Supp. 400, 421 (D.S.C.1994) (“[T]here is simply no reason why a nonmilitary contractor should be barred from enjoying this extension of immunity simply because ......
  • Request a trial to view additional results
1 books & journal articles
  • Acts of God, War, and Third Parties: The Previously Overlooked CERCLA Defenses
    • United States
    • Environmental Law Reporter Nbr. 45-2, February 2015
    • February 1, 2015
    ...similar to that announced in Boyle v. United Techs. Corp. , 487 U.S. 500 (1988). See Richard-Lexington Airport Dist. v. Atlas Props., 854 F. Supp. 400, 424 (D.S.C. 1994). Most courts, however, have rejected a government contractor defense as inconsistent with CERCLA §120, the strict liabili......

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