Solvent Chem. Co. Icc v. E.I. Dupont De Nemours
| Decision Date | 24 December 2002 |
| Docket Number | No. 01-CV-425C(SC).,01-CV-425C(SC). |
| Citation | 242 F.Supp.2d 196 |
| Parties | SOLVENT CHEMICAL COMPANY, ICC INDUSTRIES, INC., Plaintiffs, v. E.I. DUPONT DE NEMOURS & COMPANY, Defendant. |
| Court | U.S. District Court — Western District of New York |
Jaeckle, Fleischmann & Mugel, LLP (Dennis P. Harkawik, Esq., and Brenda J. Joyce, Esq., of Counsel), Buffalo, NY, for Solvent Chemical Company, Inc.
Buchanan Ingersoll Professional Corporation (Daniel M. Darragh, Esq., and Martha M. Harris, Esq., of Counsel), Pittsburgh, PA, for E.I. DuPont de Nemours & Company.
INTRODUCTION
Plaintiffs Solvent Chemical Company, Inc. ("Solvent") and Solvent's parent company, ICC Industries, Inc. ("ICC"), (collectively "Solvent" or "plaintiffs") commenced this action on June 14, 2001, asserting two claims against defendant E.I. DuPont de Nemours & Company ("DuPont"). The claims are for contribution pursuant to Section 113 of the Comprehensive Environmental Response, Compensation, and Liability, Act ("CERCLA"), 42 U.S.C. § 9613, and for common law contribution, with respect to the costs plaintiffs have incurred and will incur in remediating contamination at the Solvent property located at 3163 Buffalo Avenue, Niagara Falls, New York (the "3163 Buffalo Avenue Site" or the "Solvent Site") and adjacent property owned by Olin Corporation (referred to by the parties herein as the "Olin Hot Spot"1). Pending before the court are four motions: (1) Solvent's motion to strike the second, third, and fourth affirmative defenses contained in DuPont's answer and dismissing DuPont's counterclaim, Item 4; (2) DuPont's cross-motion for summary judgment dismissing the complaint and for declaratory judgment, Item 9; (3) Solvent's motion for leave to file an amended complaint to add an additional claim, Item 15; and (4) Solvent's motion to consolidate this action with a CERCLA action commenced in this court in 1983 by New York State against Solvent, ICC, and numerous other defendants, docketed as Civil Action No. 83-CV-1401, seeking recovery of costs incurred and to be incurred at the 3163 Buffalo Avenue Site. Item 1028 in 83-CV-1401.
For the reasons that follow, the court (1) denies Solvent's motion to strike the second, third, and fourth affirmative defenses contained in DuPont's answer and to dismiss DuPont's counterclaim; (2) denies DuPont's cross-motion for summary judgment dismissing the complaint and granting declaratory judgment; (3) grants Solvent's motion for leave to file an amended complaint; and (4) denies Solvent's motion to consolidate.
The 5.7 acre 3163 Buffalo Avenue Site at issue in this complaint "functioned as a chemical manufacturing and storage facility during various periods starting in 1940." Item 1, Ex. B, p. 1. During World War II, from 1940-1945, DuPont built and operated the plant at the site under a contract with the United States government to manufacture "impregnite." From 1951-1953, the site was reactivated for impregnite production by Hooker Electrochemical Company. In 1972, the City of Niagara Falls purchased the site and sold it to Solvent. From 1973-1977, Solvent manufactured chlorinated benzenes and other chemicals at the site. Solvent sold the site to Transit Holding Company (predecessor of Mader Capital Corp.) in 1978. A number of owners have operated the site until the present day.
The Solvent Site is adjacent to several other industrial facilities, and is bordered on the west by the Olin Corporation, and to the south and east by DuPont's manufacturing facility located at Buffalo Avenue and 26th Street in Niagara Falls ("the DuPont Facility"). Item 1, Ex. B, p. 1. In 1985, the State determined that the 3163 Buffalo Avenue Site was an inactive hazardous waste disposal site, and placed it on the Inactive Waste Disposal Site Registry as Site Number 932096. Id., Ex A, p. 3. At about the same time, the State also determined that the DuPont Facility was an inactive hazardous waste disposal site, and separately listed it on the Inactive Waste Disposal Site Registry as Site Number 932013. Item 9, App. A, ¶ 3.
Meanwhile, in December 1983, the State commenced Civil Action No. 83-CV-1401 against Solvent and others (including DuPont and Olin), pursuant to CERCLA Section 107(a), 42 U.S.C. § 9607(a), and the common law of public nuisance. The State sought recovery of response costs incurred in connection with the 3163 Buffalo Avenue Site, and an injunction compelling investigation and remediation of the contaminated property.
In June 1986, Solvent commenced a third-party action in No. 83-CV-1401 against DuPont, Occidental Chemical Corp., the United States, and the City of Niagara Falls, claiming that the chemical manufacturing operations conducted by the third-party defendants on the 3163 Buffalo Avenue Site had contributed to the Site's environmental condition.2 In 1989, plaintiffs, the United States, DuPont, Mader Capital Corp., and Occidental, as potentially responsible parties, conducted a remedial investigation to define the nature and extent of contamination resulting from previous activities at the Site. An investigation report was submitted to the State in 1990, indicating Item 1, Ex. B, p. 3. The New York State Department of Environmental Conservation ("DEC") conducted a Supplemental Remedial Investigation and Feasibility Study ("RI/FS") to evaluate various remedial alternatives. The DEC issued a Record of Decision ("ROD") on December 31, 1996. The ROD presented a plan for the remedial action to be taken at the site, in accordance with the New York State Environmental Conservation Law, which was "not inconsistent" with the National Contingency Plan. Item 1, Ex. B, p. i.
In 1989, DuPont and the DEC entered into an Order on Consent for the purpose of eliminating or mitigating the release and migration of contaminants at and from the DuPont Facility. Item 9, App. A, ¶ 5. Pursuant to the Order on Consent, DuPont installed a groundwater pump and treatment system which it still operates. Item 3, ¶ 37. This remedial system was implemented to address threats to public health or the environment related to release of hazardous substances at the DuPont plant, including migration of such substances in the groundwater. Id., ¶ 38. Among the substances released at or from the DuPont Facility were chlorinated aliphatic compounds, such as trichloroethylene ("TCE") and perchloroethylene ("PCE"). Item 9, p. 3 n. 3.
In April 1997, the State entered into a Consent Decree with DuPont, Occidental, and the United States with respect to the 3163 Buffalo Avenue Site (the "DuPont Consent Decree," Item 657 in No. 83-CV-1401). The terms of the DuPont Consent Decree provided that DuPont would pay the State $216,250.00 and the State would settle all of its claims against DuPont for the "Matters Addressed" in the Consent Decree,
including all Response Costs, past and future, which have been incurred or will be incurred by the State, any local governmental entity, or any private entity, including any and all Response Costs incurred by any party to this action or by any other responsible party, for investigation and remediation as a result of the release or threatened release of Hazardous Substances at or from the Site.
Paragraph 19(b) of the Consent Decree provided that,
Only with respect to DuPont, the "Matters Addressed" do not include, and DuPont reserves all of its rights and defenses against any party other than a Settling Defendant or the State with regard to:
....
(b) any claim by a person not a party to this Consent Decree for any Response Costs or other relief for the release of Hazardous Substances emanating or arising from the adjacent or nearby DuPont Facility and migrating onto or about the Site and/or Olin property ...
The Consent Decree also contained the following provision for "Contribution Protection:"
The Parties agree and by entering into this Consent Decree the Court finds that the Settling Defendants [DuPont, Occidental, and the United States] are entitled to the full extent of protection from contribution actions or claims provided by CERCLA Section 113(f)(2), 42 U.S.C. § 9613(f)(2), and/or any other applicable federal or state law, for the Matters Addressed by this Consent Decree.
The DuPont Consent Decree was approved by this court on October 8, 1997, and entered as an order in No. 83-CV-1401. Id., p. 22; Item 1, ¶13.
Also in April 1997, plaintiffs Solvent and ICC entered into separate Consent Decrees with the State of New York.3 Item 1, Exs. A and C (Items 655 and 652 in No. 83-CV-1401), respectively. Pursuant to its Consent Decree, Solvent agreed to remediate the contamination discovered at the 3163 Buffalo Avenue Site, as well as the contamination located on adjacent property owned by Olin (the "Hot.Spot"), as set forth in the ROD. See Item 1, Ex. A, ¶¶ 5, 7. In its Consent Decree, ICC, as Solvent's parent company, agreed to guarantee Solvent's performance under the Solvent Consent Decree. Item 1, Ex. C. Both the Solvent and ICC Consent Decrees reserved each corporation's rights to seek recovery of any response costs incurred for the release of hazardous substances or other contamination emanating or arising from adjacent facilities, including the DuPont Facility, and migrating onto the 3163 Buffalo Avenue Site and/or the Olin property. Item 1, Ex. A, ¶46(b); Ex. C, ¶46(b). Paragraphs 46(b) in both the ICC and Solvent Consent Decrees provided:
The "Matters Addressed" do not include, and Settling Defendant reserves all of its rights against any party other than the State with regard to:
....
(b) any...
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