B. Solvent's Motion to Strike DuPont's Third Affirmative Defense
By way of its third affirmative defense, DuPont notes that between
1973-1977, Solvent manufactured various chlorinated benzenes and other
substances at the Buffalo Avenue site. Item 3, ¶ 32. DuPont argues
that to the extent that the DuPont plant released unrelated organic
compounds that may have migrated to the Site or the Hot Spot, that
release and/or migration did not cause Solvent to incur response costs in
performing the remedial actions necessitated by the Solvent Consent
Decree, and required by the ROD. Id., ¶¶ 34, 35. DuPont also raises
the causation argument here, contending that Solvent has not pleaded
facts establishing that the release of hazardous substances from the
DuPont facility caused Solvent to incur any response costs, and what
those response costs were. DuPont asserts that "Solvent's inability to
establish that the cost of the ROD-mandated remedy for the Solvent
Facility has increased, or will increase, as a result of releases or
threatened releases from the DuPont Facility would preclude the
imposition of liability on DuPont, and thus constitutes a valid and
viable defense." Item 9, p. 21.
Solvent responds that DuPont's factual allegations contained in the
Third Affirmative Defense, even if true, "fail to support any legally
cognizable defense to CERCLA liability," because CERCLA, as a strict
liability statute, is subject only to the defenses set forth in the
statute.*fn12 Item 5, pp. 5-6. Solvent challenges DuPont's assertion
that DuPont cannot be held liable to plaintiffs because the migrating
substances did not "cause" plaintiffs to incur any response costs.
Lastly, plaintiffs claim that so long as they can show that hazardous
substances generated by DuPont have come to be located at the Solvent
Site or the Olin Hot Spot, and that plaintiffs have incurred response
costs cleaning up any hazardous substances there, DuPont can be held
liable. Id., p. 8.
Once again, the parties are debating the role of causation in pleading
a prima facie case, which has been discussed earlier. Although a
plaintiff is not required to plead causation as an element of a claim for
contribution under CERCLA, DuPont's point is well taken that causation
still remains an issue with which Solvent must contend in the allocation
stage of the proceedings.*fn13 If DuPont can show, for example, that the
hazardous substances that allegedly migrated from its facility to the
Solvent Site did not cause any contamination and response costs that
could be attributed to it, DuPont would have a viable defense. See
Memphis Zane May Assoc. v. IBC Mfg. Co., 952 F. Supp. 541, 548 (W.D.
The court thus declines to strike DuPont's third affirmative defense.
C. Solvent's Motion to Strike DuPont's Fourth Affirmative Defense
In its fourth affirmative defense, DuPont makes reference to the Order
on Consent it entered into with the DEC in 1989 to eliminate or mitigate
the release and migration of contaminants at and from the DuPont plant.
Item 3, ¶ 37. DuPont argues that the DEC, through the Order on
Consent, determined that it was not necessary to address DuPont
contaminants in the bedrock groundwater in the eastern section of the
plant, despite the fact such contaminants were known to be migrating
from the DuPont facility. Item 9, p. 21. Therefore, concludes DuPont, the
release of such contaminants cannot be considered to have necessitated
any of the remedial actions required by the ROD at the Solvent facility.
Solvent moves to strike this affirmative defense. According to Solvent,
DuPont does not allege that DuPont's efforts have prevented the migration
of contaminants from the DuPont Facility, or that the 1989 Order on Consent
releases DuPont from liability for off-site migration.*fn14 Solvent
argues that since this affirmative defense does not fall within the
statutory framework, it must be stricken from the answer. Item 5, p. 8.
For reasons similar to those underlying the ruling on Solvent's motion
to strike the third affirmative defense, the court declines to strike
DuPont's fourth affirmative defense. DuPont seeks to show that it
implemented a number of remedial programs with the result that releases
from its facility did not cause Solvent to incur response costs at the
Solvent Site or the Olin Hot Spot. The court agrees with Solvent that the
1989 Order on Consent does not release DuPont from liability for off-site
migration, nor does it fit within the statutory framework that would
allow it to escape CERCLA liability. Still, DuPont may be able to prove
facts to show that the remediation implemented under the 1989 Order on
Consent prevented or minimized the contamination to such an extent as to
reduce or obviate any contribution in the allocation phase.
Accordingly, Solvent's motion to strike DuPont's fourth affirmative
defense is denied.
D. Solvent's Motion to Dismiss DuPont's Counterclaim for Declaratory
In its counterclaim, DuPont seeks a judgment declaring the respective
rights of the parties pursuant to paragraphs 17, 19(b), and 21 of the
1997 DuPont Consent Decree. Solvent moves pursuant to Fed.R.Civ.P. 12(b)(6)
to dismiss this counterclaim on the ground that it fails to state a claim
upon which relief may be granted.
As Solvent points out, the counterclaim is essentially based on
DuPont's second and third affirmative defenses. Item 5, p. 9. Solvent
contests DuPont's reading of the DuPont Consent Decree that ¶¶ 17 and
21 bar any claim for contribution by plaintiffs, and that ¶ 19(b)
authorizes contribution only for "incremental or additional costs"
incurred by plaintiffs to the extent the costs are attributable to
material migrating from DuPont's facility. Solvent also notes that even
if the court "accepts DuPont's assertion that [plaintiffs] may have
incurred costs addressing releases not attributable to DuPont, such facts
are irrelevant to the issue of DuPont's liability." Item 5 p. 11.
DuPont counters that the debate concerning the proper construction of
the Consent Decree and the scope of contribution is the kind of dispute
that a declaratory judgment is meant to address. Item 9, p. 22. DuPont
argues that its reading of ¶ 19(b) is the only construction of the
Consent Decree comporting with its provisions and with CERCLA
jurisprudence. It urges the court to treat Solvent's motion to dismiss
the counterclaim and DuPont's response thereto as cross-motions for
summary judgment. Id., p. 24.
Once again, each party is partially correct. Solvent is correct that
nothing in the DuPont Consent Decree or CERCLA jurisprudence shields
DuPont from liability for the migration of hazardous substances from the
DuPont facility to the Solvent facility. It is also correct that it is
not required at the liability stage to prove that hazardous substances
from the DuPont plant specifically caused Solvent to incur response costs
that it would not have otherwise incurred. On the other hand, DuPont is
correct that Solvent's interpretation of the Consent Decree may require
DuPont "to pay yet another portion of those same costs, over and above
its equitable share. . . ." Item 24, p. 4.
Accordingly, the court finds that DuPont has asserted enough facts in
its counterclaim to state a claim — i.e., that interpretation of
certain paragraphs in the Consent Decree bears on the protection from
contribution it may be due in this action. The court therefore declines
to dismiss DuPont's counterclaim for declaratory judgment. By the same
token, the court also finds that genuine issues of fact remain with
respect to the respective rights of the parties pursuant to paragraphs
17, 19(b), and 21 of the 1997 DuPont Consent Decree, and declines to
grant summary judgment in favor of DuPont on its counterclaim.
III. Solvent's Motion for Leave to Amend the Complaint
On September 21, 2001, Solvent moved pursuant to Fed.R.Civ.P. 15(a) for
leave to amend the complaint to assert an additional claim against DuPont
for imminent and substantial endangerment under RCRA Section
7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B). Item 15. DuPont opposed the
motion, Item 26, and Solvent filed a reply memorandum. Item 29. For the
reasons set forth below, Solvent's motion to amend is granted.
Fed.R.Civ.P. 15(a) provides that leave to amend "shall be freely given
when justice so requires." The seminal case on leave to amend, Foman v.
Davis, 371 U.S. 178 (1962), held that:
If the underlying facts or circumstances relied upon
by a plaintiff may be a proper subject of relief, he
ought to be afforded an opportunity to test his claim
on the merits. In the absence of any apparent or
declared reason — such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by
virtue of the amendment, futility of amendment, etc.
— the leave sought should, as the rules
require, be "freely given."
Id. at 182.
Where it appears that granting leave to amend "is unlikely to be
productive, however, it is not an abuse of discretion to deny leave to
amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.
1993) (citing Foman, 371 U.S. at 182); see also Health-Chem Corp. v.
Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("where . . . there is no merit
in the proposed amendments, leave to amend should be denied"). While
"futility" is a valid reason for denying a motion to amend, this is true
"only where it is `beyond doubt that the plaintiff can prove no set of
facts in support' of his amended claims." Pangburn v. Culbertson,
200 F.3d 65, 71 (2d Cir. 1999) (citation omitted). Absent a clear showing
of prejudice, undue delay, or bad faith, it is an abuse of discretion to
deny leave to amend. Block v. First Blood Associates, 988 F.2d 344, 350
(2d Cir. 1993).
Solvent asserts that the jurisdictional prerequisite to filing the
imminent and substantial endangerment claim (the "RCRA claim") has been
met. Solvent mailed notice of the RCRA claim to the
including defendant, 90 days before assertion of the claim.*fn15 Item
16, p. 3. Solvent alleges in its proposed RCRA claim that the hazardous
substances emanating from the DuPont Facility and migrating to the 3163
Buffalo Avenue Site and Olin Hot Spot constitute hazardous wastes which
present an imminent and substantial endangerment to health and/or the
environment. Item 17, Ex. B (proposed amended complaint), ¶¶ 26-31.
In its prayer for relief, Solvent asks the court to order DuPont to "take
such action as is necessary to abate the imminent and substantial
endangerment which it caused or to which it has contributed." Id., p. 7,
DuPont argues that the motion for leave to amend should be denied
because (1) the complaint constitutes an improper collateral attack on
the Solvent and DuPont Consent Decrees, as well as the ROD; and (2)
amendment would be futile since (a) plaintiffs lack standing to bring
this RCRA suit, (b) plaintiffs' claim is subject to dismissal for lack of
subject matter jurisdiction, and (c) plaintiffs' claim is subject to
dismissal on the basis that an indispensable party has not been joined.
1. Collateral Attack on the Consent Decrees and the ROD
DuPont asserts that:
[W]hatever danger is posed by the alleged presence of
hazardous substances at the Solvent Facility is
already being addressed by the implementation of the
remedial actions set forth in the ROD. The Solvent
Consent Decree, as entered by this Court, obligates
Solvent to implement the ROD-mandated remedial actions
for the Solvent Facility. Thus, by seeking to amend
its complaint to add [the RCRA claim], Solvent is, in
effect, asking this Court to amend both the Solvent
Consent Decree and the DuPont Consent Decree to shift
some of the responsibility for implementing the
ROD-mandated remedy from Solvent to DuPont.
Item 26, pp. 5-6.