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AMLON METALS, INC. v. FMC CORP.

October 16, 1991

AMLON METALS, INC., AMLON METALS, LTD., D/B/A EUROMET, AND WATH RECYCLING, LTD., PLAINTIFFS,
v.
FMC CORPORATION, DEFENDANT.



The opinion of the court was delivered by: William C. Conner, District Judge:

OPINION AND ORDER

This action stems from a commercial contract for the recycling of copper residue produced by defendant FMC Corporation ("FMC"). The matter is currently before the Court on FMC's motion to dismiss plaintiffs' claims under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. (1982 & Supp. III 1985), and Alien Tort Statute, 28 U.S.C. § 1350 (1982 & Supp. III 1985), on the grounds that this Court lacks jurisdiction over the claims pursuant to Fed.R.Civ.P. 12(b)(1) and that the claims fail to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).

Background

Plaintiff Amlon, a New York Corporation with its principal place of business in New York, is the sole American agent for plaintiffs Wath, a United Kingdom corporation with its principal place of business in Wathon-Dearne, South Yorkshire, and Euromet, a United Kingdom corporation with its principal place of business in London. Complaint ¶¶ 3-5, 9. Amlon acquires metal residues, which are shipped to Wath for drying and other processing. Complaint ¶ 9. The profits and losses are divided equally between Amlon and Euromet. Complaint ¶ 9.

In January 1988, Amlon and FMC, a Delaware corporation with its principal place of business in Chicago, entered into negotiations concerning the possible reclamation of copper residue produced by a pesticide plant operated by FMC in Baltimore, Maryland. Complaint ¶¶ 6, 10.

In August 1988, Amlon and FMC entered into a contract under which the parties agreed, inter alia, that the copper residue would be treated for metallic reclamation purposes, that the material would be free from harmful impurities as per a sample tested earlier by Amlon, that the material was not a hazardous waste, and that the material typically contained 33% copper. Complaint ¶¶ 15-16.

Problems between Amlon and FMC developed shortly after the contract was signed. The shipment of material was to take place in October. Amlon had arranged for containers sufficient to handle the 140 tons of material it had anticipated. Complaint ¶ 19. The delivery actually made to Wath was between three and four tons, a quantity so small that it caused Wath some processing difficulties. Complaint ¶ 19. The material itself was apparently free from harmful impurities. Complaint ¶ 19.

In May 1989, Amlon procured some 20 containers and caused them to be delivered to FMC's Baltimore plant in preparation for the shipping of additional copper residue to Wath. Complaint ¶ 25. Unbeknownst to Amlon or Wath, the drivers of the trucks that took the containers from FMC's plant to the cargo ship were told to wear respirators and the containers had been marked "corrosive" before leaving FMC's hands. Complaint ¶¶ 25-27.

When the containers arrived in Leeds England on June 9, 1989, Wath's personnel noticed a strong odor coming from the containers. Complaint ¶ 33. Thirteen of the containers were shipped to Wath's premises while seven remained at Leeds. Amlon contacted FMC and was told that the smell was probably due to xylene (an EPA-listed hazardous substance), which FMC stated was present in concentrations of 0 to 100 parts per million. Complaint ¶¶ 33-34. When the smell did not dissipate over the course of the week, Amlon again contacted FMC, and was told that xylene might be present in concentrations five to fifteen times higher than FMC had stated previously. Complaint ¶¶ 37-38. On June 16, Amlon rejected the seven containers that were still in the British Rail depot at Leeds and reserved the right to hold FMC responsible for the removal of the material at Wath's premises, which at that point had been mixed with other residues. Complaint ¶¶ 40-41.

Thereafter, Wath notified the British government of the problems of which it was then aware and commenced its own analysis of the material. Complaint ¶ 45. Its tests revealed that the material contained a number of organic chemicals, including xylene (in concentrations up to ten times higher than FMC had disclosed in its second communication), 7-hydrogen (an allegedly carcinogenic pesticide intermediary) and chlorinated phenols (which may form dioxin when exposed to heat and a catalyst).

Upon learning of the situation, the Health and Safety Executive of the United Kingdom required Wath to drum the material and Wath placed it in steel drums at its premises, where it remains today. Complaint ¶¶ 45, 54.

On December 20, 1989, plaintiffs brought suit against FMC in the Commercial Court of the Queen's Bench Division of the British High Court of Justice. The Commercial Court granted FMC's motion to dismiss on the grounds that all the actions claimed to be taken by FMC took place in the United States and U.S. law would apply.

On June 7, 1991, plaintiffs filed the complaint that gives rise to the instant case. The complaint alleges that FMC misrepresented the composition and characteristics of the copper residue and failed to disclose the presence and concentrations of organic chemicals in the material on a number of occasions, both before and after the material arrived in England. Complaint ΒΆΒΆ 1, 11-12, 19, 21-27, 29-31, 42-44, 50-52, 69-75. The Complaint also alleges that the material may present imminent and substantial danger to human health and to the environment. In addition to the RCRA and Alien Torts Act claims that defendant here ...


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