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April 2, 2003


The opinion of the court was delivered by: Thomas J. McAVOY, District Judge



Plaintiff PAS Oswego Site Performing Group ("Plaintiff") is suing defendant Alcan Aluminum (Alcan) in a contribution suit under § 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). See 42 U.S.C. § 9613(f). Defendant Alcan Aluminum filed this motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) claiming that the Complaint in the case failed to state a cause of action upon which relief could be granted because the application of CERCLA § 113 was unconstitutional in this instance. The motion is denied for the reasons set out below.


This case is another arm of CERCLA litigation that began in 1987 and has had a "long litigation history detailed in numerous judicial opinions." See United States v. Alcan Aluminum Corporation, 315 F.3d 179, 182 (2nd Cir. 2003) ("Alcan II"). The latest of these decisions was handed down by the Second Circuit in February 2003, affirming the finding that Alcan Corporation was jointly and severally liable for their contribution to the Superfund sites at the PAS facilities in Oswego and Fulton. Id.

That action was a cost recovery action by the United States against Alcan under § 107 of CERCLA to recover Alcan's share of the cleanup costs. This case is a contribution action instituted by the other Potentially Responsible Parties (PRPs), all of whom entered into a consent decree with the government. Alcan subsequently filed this motion to dismiss the contribution action.


In their motion to dismiss, Alcan challenges the retroactive application of CERCLA in a § 113(f) contribution action arguing that the statute: (1)is unconstitutionally vague and over-broad and (2)that retroactive application of the statute is unconstitutional under the Takings Clause in Article Five of the Constitution as well as the Fourteenth Amendment Due Process Clause based on the Supreme Court's decision in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998).

In the cost recovery action, Alcan challenged § 107 of CERCLA on the same constitutional basis it proffers here. See United States v. Alcan, 315 F.3d 179 (2nd Cir. 2003) ("Alcan II"). The Second Circuit ruled that the retroactive application of § 107 was not unconstitutional under either the Takings Clause or the Due Process Clause. See Alcan II, 315 F.3d at 190.

Following that decision, this Court ordered the parties to submit additional briefing on the present motion. In its supplemental memorandum, Alcan now attempts to distinguish Alcan II on three grounds: (1) the plaintiffs in this action are not innocent third parties as was the government in the prior action, and therefore, this contribution action is not given the deference of that action; (2) it is unconstitutional to apply § 113 of CERCLA in this case because § 113 is fundamentally different from § 107 in apportioning liability and plaintiffs fall under the protections for de-minimus contributors found in Acushnet Co. v. Mohasco Corp, 191 F.3d 69 (1st Cir. 1999) because their contribution to the site was non-hazardous; and (3) it has yet to be determined whether CERCLA can constitutionally be applied retroactively to create new standards for liability on non-toxic substances for purposes of a contribution cause of action under § 113(f). See Defendants Supplemental Memorandum of Law in Support of Motion to Dismiss, dated February 11, 2003. These arguments are discussed in turn.

A. Motion to Dismiss Standard

A district court should grant a motion to dismiss under FED. R. CIV. P. 12(b)(6) for failure to state a claim only if "`it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); see also Annis v. County of Westchester, 36 F.3d 251, 253 (2d Cir. 1994). In applying this standard, a district court must "read the facts alleged in the complaint in the light most favorable" to the plaintiff, and accept these allegations as true, H.J. Inc., 492 U.S. at 249-250; see also Christ Gatzonis Elec. Contractor, Inc. v. New York City Sch. Constr. Auth., 23 F.3d 636, 639 (2d Cir. 1994); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The Court's duty is "to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980); accord Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The appropriate inquiry, therefore, is not whether a plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support the claims. See Ricciuti v. New York City Transit Auth., 941 F.2d 119, 124 (2d Cir. 1991) (plaintiff is not compelled to prove his case at the pleading stage).

B. Takings and Due Process

In their original memorandum in support of the motion to dismiss, Alcan's constitutional challenge focused heavily on the Supreme Court's decision in Eastern Enterprises, arguing that retroactive application of CERCLA was unconstitutional. The Second Circuit made it clear recently, however, that Eastern Enterprises did not make retroactive application of CERCLA unconstitutional. See Alcan II at 188-189. The Second Circuit reasoned that because there was no majority opinion in Eastern Enterprises and the plurality did not agree on a "common denominator" when issuing the opinion, the "only binding aspect of such a splintered decision is its specific result." Id. In doing so, the Circuit Court noted that the issue of CERCLA constitutionality has been considered by many ...

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