U.S. v. Dico Inc.
| Decision Date | 15 February 2011 |
| Docket Number | No. 4:10–cv–00503.,4:10–cv–00503. |
| Citation | 765 F.Supp.2d 1126 |
| Parties | UNITED STATES of America, Plaintiff,v.DICO, INC. and Titan Tire Corp., Defendants. |
| Court | U.S. District Court — Southern District of Iowa |
OPINION TEXT STARTS HERE
Loren A. Remsberg, U.S. Dept. of Justice–Environment & Natural Resources, Washington, DC, for Plaintiff.Brian D. Williams, Mark E. Johnson, Stinson Morrison Hecker LLP, Kansas City, MO, Bryan S. Hatch, Stinson Morrison Hecker LLP, Omaha, NE, for Defendants.
Currently before the Court is a “Motion to Dismiss” filed by Dico, Inc. (“Dico”) and Titan Tire Corp. (“Titan Tire”) (collectively “Defendants”) on January 3, 2011. Clerk's No. 4. The United States filed a response in opposition to the motion on January 28, 2011. Clerk's No. 14. Defendants filed a reply on February 7, 2011. Clerk's No. 15. The matter is fully submitted.1
The United States alleges that in the early 1990s, a contractor discovered polychlorinated biphenyls (“PCBs”) in the insulation of three buildings owned by Dico.2 Compl. ¶ 20; see also Defs.' Br. at 3–4 (defining PCBs). These buildings, which the United States refers to as “Buildings 3, 4, and 5,” were located within the Des Moines TCE Superfund Site. Compl. ¶¶ 17, 20. Buildings 3, 4, and 5 were affected by the Raccoon River flood of 1993. Id. ¶ 21. Following the flood, “Titan Wheel International, now Titan International .... acquired Dico's parent, the Dyneer Corp.” Id. ¶ 22. According to the United States, “Titan Wheel indicated ... that it wanted to return the Dico Property to usable condition but that substantial building cleaning and renovation would be necessary before the buildings could be reoccupied.” Id. In 1994, the United States Environmental Protection Agency (hereinafter the “EPA”) issued a Unilateral Administrative Order for Removal Action (hereinafter the “Building UAO”) to Dico related to Buildings 3, 4, and 5. Id. ¶ 23. The Building UAO “requir[ed] Dico to submit a work plan for cleaning the buildings and adjacent soils consistent with EPA's comments and, upon EPA's approval of the work plan to, inter alia, repair, seal and protect the building insulation.” Id. Among other things, the Building UAO required that Dico encapsulate the PCB-contaminated insulation and maintain that encapsulation. See id. ¶¶ 24–25.
In 2003, “Dico sought EPA's permission to stop monitoring Building 4, arguing that the buildings were not being actively used.” Id. ¶ 31. “In that letter, Dico stated that it had ‘intentions of possible future demolition or dismantling of these buildings,’ ” but did not indicate that it had plans to demolish or dismantle the buildings by any certain date. Id. ¶ 32. Dico also “asked to discontinue the operation and maintenance requirements” for Buildings 3, 4, and 5. See id. The EPA “denied Dico's proposal by letter dated September 3, 2003, and stated that, while EPA did not necessarily object to demolition of the building, Dico was required to ‘coordinate any plans for demolition of the buildings with EPA.’ ” Id. ¶ 33. In this letter, the EPA also stated that “[c]ertain disposal requirements may apply for building debris, and the EPA or state would want to oversee the demolition.” Id.
The United States alleges that, “[I]n July 2007, Titan Tire, on behalf of Dico, arranged with Southern Iowa Mechanical (‘SIM’) to dismantle certain buildings on the Dico Property, including Buildings 3, 4 and 5.” Id. ¶ 35. SIM demolished Buildings 3, 4 and 5 “between August and November 2007.” Id. ¶ 38. Following the demolition, the debris, “including most of the PCB contaminated insulation, lighting fixtures, doors, and miscellaneous materials, were disposed of at the Metro Park East Landfill in Mitchellville, Iowa, just east of Des Moines.” Id. ¶ 39. However, “SIM transported the steel structural beams from the buildings to its facility in Ottumwa, Iowa” (hereinafter the “SIM Site”). Id. ¶ 41.
In September 2007, the EPA became aware that “large portions of the buildings had ... been dismantled and essentially all of the [PCB-contaminated] insulation had been removed.” See id. ¶ 42. The EPA inquired about this demolition, and eventually inspected the SIM Site. See id. ¶¶ 43–44. “When EPA inspected the SIM property, it found multiple piles of structural steel of various sizes and shapes covering an area of approximately three-quarters of an acre.” Id. ¶ 45. Id. ¶ 46. According to the United States, the “EPA incurred at least $94,000 in response costs related to the release or threatened release of hazardous substances at the SIM Site.” Id. ¶ 51.
The United States filed this case on October 28, 2010, alleging that the Defendants' actions violated the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”). See Compl. ¶ 2. Specifically, the United States claims that Defendants are liable for response costs, civil penalties and punitive damages due to the disposal of PCBs at the SIM Site. See id. ¶¶ 58, 63, 67.
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In reviewing a complaint, a court must “accept as true all of the factual allegations contained in the complaint,” and must draw “all reasonable inferences ... in favor of the plaintiff.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A viable complaint must include “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.
Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009) (quoting Iqbal, 129 S.Ct. at 1949).
In Ashcroft v. Iqbal, the Supreme Court described a “two-pronged approach” for evaluating complaints challenged under Rule 12(b)(6). Iqbal, 129 S.Ct. at 1949–50. First, a court should divide the allegations between factual and legal allegations; factual allegations should be accepted as true, but legal allegations should be disregarded. Id. Second, the factual allegations must be parsed for facial plausibility. Id. at 1950.
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.... Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ”
Id. at 1949 (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
The “parsing” process requires careful examination of the plaintiff's allegations, however, “the complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden, 588 F.3d at 594. Indeed, “[r]equiring a plaintiff to rule out every possible lawful explanation for the conduct he challenges would invert the principle that the complaint is construed most favorably to the nonmoving party, and would impose the sort of probability requirement at the pleading stage which Iqbal and Twombly explicitly reject.” Id. at 597 (internal quotations and citations omitted).
A court will “draw on its judicial experience and common sense” when determining whether a complaint states a plausible claim for relief. Iqbal, 129 S.Ct. at 1949. Thus, the Court may consider other, more likely explanations for the acts described in the complaint when determining whether the pleaded factual allegations give rise to a plausible entitlement to relief. Id. at 1950–51. But, the Court must always be mindful that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and ‘that a recovery is very remote and unlikely.’ ” Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). “[W]hile a plaintiff must offer sufficient factual allegations to show that he or she is not merely engaged in a fishing expedition or strike suit, [a court] must also take account of [his or her] limited access to crucial information.” Braden, 588 F.3d at 597.
In its “First Claim for Relief,” the United States alleges that Defendants arranged for the disposal of the PCBs at the SIM Site and, therefore, they “are each liable to the United States under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), for all response costs incurred by the United States in connection with the [SIM] Site.” Compl. ¶¶ 55, 58. Defendants argue that this claim should be dismissed because it does not “state a claim for ‘arranger’ liability under CERCLA § 107(a)....” Defs.' Br. at 6.
“CERCLA imposes strict liability for environmental contamination upon four broad classes of” potentially responsible parties (“PRPs”). Burlington N. & Santa Fe Ry. Co. v. United States, ––– U.S. ––––, 129 S.Ct. 1870, 1878, 173 L.Ed.2d 812 (2009)....
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