Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SOLVENT CHEMICAL CO. v. E.I. DUPONT DE NEMOURS & CO.

December 24, 2002

SOLVENT CHEMICAL COMPANY, ICC INDUSTRIES, INC., PLAINTIFFS,
V.
E.I. DUPONT DE NEMOURS & COMPANY, DEFENDANT.



The opinion of the court was delivered by: John T. Curtin, United States District Judge

      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"*fn1). 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.

BACKGROUND

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.*fn2 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 "significant groundwater and soils contamination. Principal contaminants discovered in the remedial investigation included chlorobenzene, dichlorobenzene, trichlorobenzene, and metals such as lead, mercury, etc." 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.

The Consent Orders/Decrees

1. DuPont

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,

Item 1, Ex. D, ¶ 17.

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 . . .

Id., ¶ 19(b).

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.

Id., ¶ 21.

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.

2. Solvent and ICC

Also in April 1997, plaintiffs Solvent and ICC entered into separate Consent Decrees with the State of New York.*fn3 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:

Item 1, Ex. A, ¶ 46(b) (emphasis added).

The Solvent and ICC Consent Decrees were approved by this court on October 8, 1997, and entered as orders in No. 83-CV-1401. Item 1, ¶ 13.

PROCEDURAL HISTORY

1. Plaintiffs' Motion to Strike Affirmative Defenses; Defendant's Motion to Dismiss Complaint

Solvent's first claim for relief in the complaint in this action is for contribution under CERCLA. Solvent asserts that the 3163 Buffalo Avenue Site, the DuPont Facility, and the Olin "Hot Spot" are all "facilities" within the meaning of CERCLA Section 101(9), 42 U.S.C. § 9601(9), and that DuPont is a "person" within the meaning of CERCLA Section 101(21), 42 U.S.C. § 9601(21). Item 1, ¶¶ 14-17. In paragraph 18 of the complaint, Solvent alleges that "[u]pon information and belief, DuPont has released `hazardous substances' as defined in CERCLA § 101(14), 42 U.S.C. § 9601(14), at the DuPont Facility that have come to be located at the 3163 Buffalo Avenue Site and the Hot Spot." Id., ¶ 18. In the next paragraph, Solvent alleges that "Solvent and ICC have incurred, and will continue to incur, necessary costs in responding to the release of hazardous substances at the 3163 Buffalo Avenue Site and the Hot Spot." Id. ¶ 19. Solvent also alleges that these costs have been incurred in a manner consistent with the National Contingency Plan, id., ¶ 20, and that Solvent and ICC are entitled to contribution from DuPont "for some or all of the response costs incurred at the 3163 Buffalo Avenue Site and the Hot Spot." Id., ¶ 21. Solvent and ICC seek a declaration pursuant to CERCLA Section 113(g)(2), 42 U.S.C. § 9613(g)(2), that DuPont "is liable for an equitable share of all future costs to be incurred" by plaintiffs in remediating the 3163 Buffalo Avenue Site and the Olin Hot Spot. Id., ¶ 22.

In their second claim for relief, for contribution under the common law, Solvent and ICC allege that they have been compelled to incur response costs and other damages in excess of their equitable share, and are thus entitled to contribution from DuPont for all or part of those response costs and damages. Id., ¶¶ 24, 25.

In its answer, DuPont asserts four affirmative defenses. The first affirmative defense is that Solvent has failed to state a claim upon which relief can be granted. Item 3, ¶ 26. The second affirmative defense is based on the "Contribution Protection" provision and other language contained in the DuPont Consent Decree, which DuPont argues bars Solvent and ICC from asserting any claim against DuPont with respect to response costs incurred or to be incurred at the 3163 Buffalo Avenue Site or at the Olin Hot Spot. Item 3, ¶¶ 27-31. As its third affirmative defense, DuPont alleges that to the extent there have been releases at the DuPont plant of organic compounds unrelated to the benzene and chlorinated benzene compounds associated with the remediation at the 3163 Buffalo Avenue Site, which may have migrated to the Solvent Site or the Hot Spot, such release and/or migration did not cause Solvent and ICC to incur response costs. Id., ¶ 34. As its fourth affirmative defense, DuPont alleges that since conditions at the DuPont Facility are being addressed by the State in a separate enforcement matter memorialized in the 1989 Order on Consent, the alleged release of contaminants from its facility "cannot be considered to have necessitated any of the remedial actions required by the State's ROD for the Solvent Facility." Item 9, p. 21; Item 3, ¶¶ 36-38.

In its answer, DuPont also asserts a counterclaim for declaratory judgment seeking a declaration of the respective rights of DuPont, Solvent, and ICC pursuant to ¶¶ 17, 19(b), and 21 of the DuPont Consent Decree. Specifically, DuPont alleges that ¶¶ 17 and 21 preclude plaintiffs from seeking contribution or other relief regarding release of hazardous substances at the Solvent Site and the Olin Hot Spot. Item 3, Counterclaim ¶ 11(a). Furthermore, DuPont contends that paragraph 19(b) permits plaintiffs to seek contribution from DuPont only with regard to the incremental or additional costs incurred in performing remedial actions required by the ROD to the extent that such costs "are attributable to hazardous substances emanating or arising from the DuPont plant and migrating onto the Solvent site or the Olin hot spot." Id., ¶ 11(b).

Solvent filed a motion to strike DuPont's second, third, and fourth affirmative defenses and to dismiss the counterclaim. Item 4. In response, DuPont filed a memorandum of law*fn4 both in support of a cross-motion for summary judgment dismissing Solvent's complaint and granting declaratory judgment in favor of DuPont on its counterclaim, and opposing Solvent's motion to strike and to dismiss the counterclaim. Item 9. Further briefing by Solvent, Items 18 and 30, and DuPont, Item 24, followed, as well as various letter submissions to the court. Items 33-37.

2. Motion to Consolidate

Solvent also filed a motion to consolidate this action with Civil Action No. 83-CV-1401. Item 1028 in No. 83-CV-1401. DuPont filed a memorandum in opposition to the motion to consolidate. Item 8. Further briefing by Solvent, Item 11, and DuPont, Item 14, followed.

3. Motion to Amend

Lastly, Solvent filed a motion for leave to amend the complaint to add a third cause of action for "imminent and substantial endangerment" under § 7002(a)(1)(B) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B). Items 15, 16. DuPont opposes the motion, Item 26, and Solvent has filed a reply memorandum. Item 29.

The court will first address DuPont's cross-motion for summary judgment dismissing the complaint, given the impact that resolution of this motion will have upon the other pending motions. The court will then address in turn Solvent's motion to strike DuPont's affirmative defenses and to dismiss DuPont's counterclaim for declaratory judgment; Solvent's motion to amend the complaint; and finally, Solvent's motion to consolidate this action with No. 83-CV-1401.

DISCUSSION

I. DuPont's Motion for Summary Judgment/Dismissal

Federal Rule of Civil Procedure 56(c) provides that a motion for summary judgment shall be granted if the pleadings and supplemental evidentiary materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Under the rule, the burden is on the moving party to inform the court of the basis for its motion and to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has carried its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed.R.Civ.P. 56(e)). When perusing the record to determine whether a rational fact-finder would find for the nonmoving party, "a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party." Sorlucco v. New York City Police Department, 888 F.2d 4, 6 (2d Cir. 1989).

By way of its summary judgment motion, DuPont seeks dismissal of the complaint for failure to state a CERCLA contribution claim, invoking the standards for considering a motion to dismiss pursuant to Rule 12(b)(6). A court may not dismiss a complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be granted unless the movant demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989) (complaint may be dismissed under Rule 12(b)(6) only "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations"). Therefore, "the issue before the court is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Solow Building Co. v. Nine West Group, Inc., 2001 WL 736794, at *2 (S.D.N.Y. June 29, 2001) (citing Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (internal quotation omitted)). When passing on a motion to dismiss, the court must accept the allegations in the complaint as true and construe them in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Preliminarily, a "motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." 5A Wright & Miller, Federal Practice & Procedure: Civil 2d ยง 1357, p. 321 (2d ed. 1990). "Few complaints fail to meet this liberal standard and become subject to dismissal . . .," especially considering the policy of the Federal Rules to determine actions on their merits. Id., pp. 323-24. Rule 12(b)(6) "imposes a substantial burden of proof ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.