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MPM Silicones, LLC v. Union Carbide Corp.

United States District Court, N.D. New York

March 18, 2013


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For MPM Silicones, LLC, Plaintiff: Adam P. Kahn, Robert S. Sanoff, Zachary Gerson, LEAD ATTORNEYS, PRO HAC VICE, Foley, Hoag Law Firm, Boston, MA; Margaret J. Gillis, Whiteman, Osterman Law Firm - Albany Office, Albany, NY.

For Union Carbide Corporation, Defendant: Harold L. Segall, Karl S. Bourdeau, LEAD ATTORNEYS, PRO HAC VICE, Beveridge, Diamond Law Firm - DC Office, Washington, DC; Megan Brillault, LEAD ATTORNEY, Beveridge, Diamond Law Firm - NY Office, New York, NY; Edward M. Grauman, Beveridge, Diamond Law Firm - Austin Office, Austin, TX.


Lawrence E. Kahn, U.S. District Judge.

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Plaintiff MPM Silicones, LLC (" Plaintiff" or " MPM" ), commenced this action on December 30, 2011, by filing a Complaint against Defendant Union Carbide Corporation (" Defendant" or " Union Carbide" ) seeking to recover the costs Plaintiff incurred in identifying and responding to Defendant's release of hazardous chemicals under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (" CERCLA" )[1] as well as under several state-law causes of action. Dkt. No. 1 (" Complaint" ) ¶ ¶ 1-2, 31-71.

Presently before the Court is Defendant's Motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss certain of Plaintiff's state-law causes of action as preempted by CERCLA and deficient under the applicable state law. Dkt. No. 23 (" Motion" ). For the following reasons, the Court grants the Motion in part and denies the Motion in part.


A. Factual Background

For the purposes of deciding Defendant's Motion to dismiss, the Court accepts as true the following facts taken from Plaintiff's Complaint.

Union Carbide is a New York corporation with its principal place of business in Houston, Texas. Compl. ¶ 4. In 1953, Union Carbide developed fifty acres of a 1,300-acre plot of farmland located near Sistersville, West Virginia (" the Sistersville Site" or " the Site" ) for use as a chemical manufacturing facility. Id. ¶ 7-8. Over the approximately forty years that Union Carbide owned the Sistersville Site, Union Carbide used it to produce various chemical products, primarily silanes and silicones. Id. ¶ 9. In the manufacturing of these products, from approximately the 1950s through the 1970s, Union Carbide used hundreds of thousands of pounds of polychlorinated biphenyls (" PCBs" ). Id. ¶ 11. Union Carbide disposed of the PCBs and other hazardous wastes used or produced during this period at several locations

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within the Sistersville Site, including in unlined lagoons. Id.

In the late 1970s and early 1980s, Union Carbide conducted investigations of its historical waste-handling practices and its reporting obligations under newly enacted environmental laws such as the Resource Conservation and Recovery Act of 1976 (" RCRA" ),[2] the Toxic Substances Control Act (" TSCA" ),[3] and CERCLA. Id. ¶ 12. Through these investigations, which included PCB testing, Union Carbide determined that it had used hundreds of thousands of pounds of PCBs at the Sistersville Site. Id. ¶ ¶ 12-13. Union Carbide did not, however, disclose the presence and historical use of PCBs to federal regulators as it was required to do under CERCLA and under the RCRA as part of its Part B Permit application process, which began in approximately 1980 and extended throughout the decade. Id. ¶ 13.

Union Carbide was required to take certain corrective actions under its Part B Permit, including periodic groundwater monitoring and the development and maintenance of a number of Solid Waste Management Units (" SWMUs" ). Id. ¶ 18. All of the hazardous waste in most of the SWMUs at the Sistersville Site was deposited there by Union Carbide alone. Id. ¶ 19. In addition, from 1979 until 1993, Union Carbide deposited solid waste from the Sistersville Site and from other facilities owned by Union Carbide in a landfill at the Site called Landfill No. 2. Id. That landfill is scheduled to be closed " in the near future." Id.

Union Carbide sold the Sistersville Site in 1993. In 2006, after a series of further sales and mergers, the Site was acquired by MPM, a New York limited liability corporation with its principal place of business in Waterford, New York. Id. ¶ ¶ 3, 14. MPM has since incurred various costs associated with Union Carbide's previous ownership and use of the Site. Id. ¶ 15. In connection with its effort to install a new wastewater treatment facility on the Sistersville Site, MPM sampled soils in the vicinity of Union Carbide's former unlined lagoons and discovered high concentrations of PCBs. Id. ¶ 15. This soil sampling has caused MPM to incur hundreds of thousands of dollars in costs to date, and Union Carbide, the only entity to have used PCBs at the Sistersville Site, has declined to reimburse MPM for these costs. Id. ¶ ¶ 16-17. Union Carbide has also refused to contribute to the multimillion-dollar cost of closing Landfill No. 2 or to the cost of maintaining the SWMUs and conducting the necessary groundwater monitoring. Id. ¶ ¶ 19-20.

B. Procedural Background

Plaintiff filed a Complaint on December 30, 2011, seeking to recover the costs it incurred and expects to incur as a result of Union Carbide's use of the Sistersville Site and its failure to meet its reporting requirements under federal and state law. Compl. The Complaint asserts nine causes of action styled as Counts I through IX. Id. ¶ ¶ 21-71. Counts I through III arise under CERCLA: Count I is for recovery of costs under § 107(a); [4] Count II is for contribution under § 113(f); [5] and Count III is for declaratory relief as to future costs under § 113(g)(2). Id. ¶ ¶ 21-30. Counts IV through IX arise under state law and are before the Court under its supplemental jurisdiction: Count IV is for negligence; Count V is for strict liability;

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Count VI is for restitution; Count VII is for declaratory judgment as to future restitution; Count VIII is for indemnity and/or contribution; and Count IX is for private nuisance. Id. ¶ ¶ 31-71.

On April 16, 2012, Defendant filed a pre-answer Motion under Federal Rule of Civil Procedure 12(b)(6). Mot. In its Motion, Defendant seeks to dismiss Counts VI through VIII because they are preempted by CERCLA; Count VIII on the additional ground that it is not ripe; and Counts VIII and IX on the additional ground that they are deficient under the applicable state law. Defendant's Memorandum of law in support (Dkt. No. 23-1) (" Mem." ) at 2. Plaintiff filed a Response in opposition to the Motion on May 17, 2012, and Defendant filed a Reply to the Response on June 6, 2012. Dkt. Nos. 27 (" Response" ), 28 (" Reply" ).

On February 25, 2013, the Court issued an Order directing Plaintiff to file additional briefing addressing whether its CERCLA § 113(f) claim is barred by the Supreme Court's decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), and the Second Circuit's decision in W.R. Grace & Co.-Conn. v. Zotos International Inc., 559 F.3d 85 (2009). Dkt. No. 34 (" the February Order" ). Plaintiff complied with the February Order by filing a brief on March 4, 2013. Dkt. No. 35 (" Supplemental Brief" ).


When a court evaluates a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), it must accept as true all well-pleaded facts alleged in the complaint and must draw all reasonable inferences in the nonmovant's favor. Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). Mere " conclusions of law or unwarranted deductions of fact" need not be accepted as true. First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994). A complaint must contain " sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plausibility requires " enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]," Twombly, 550 U.S. at 556, and " more than a sheer possibility that a defendant has acted unlawfully," Iqbal, 556 U.S. at 678. This pleading standard " does not require 'detailed factual allegations,' but it demands more than an unadorned the-defendant-unlawfully-harmed-me accusation." Id. at 678 (quoting Twombly, 550 U.S. at 556). Thus, a pleading that only " tenders naked assertions devoid of further factual enhancement" will not suffice. Id. (internal quotation marks omitted). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that he is entitled to relief and the complaint is subject to dismissal. See id. at 679.


A. CERCLA Claims

CERCLA was enacted in its original form in 1980 in response to New York's Love Canal Disaster.[6] It is a remedial

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statute " designed to encourage prompt and effective cleanup of hazardous waste sites" by " assuring that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions." Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 120 (2d Cir. 2010) (quoting S. Rep. NO. 96-848, at 13 (1980)). CERCLA empowers the federal government and the states to " clean up a contaminated area [themselves] . . . or [to] compel responsible parties to perform the cleanup." Cooper Indus., 543 U.S. at 161. In either case, the government may recover its response costs from a potentially responsible party (" PRP" )[7] under CERCLA § 107. Id. Section 107(a) provides that PRPs are liable for, among other things, " all costs of removal or remedial action incurred by the United States Government . . . not inconsistent with the national contingency plan [(" NCP" )]." [8] 42 U.S.C. § 9067(a)(4)(A).

Section 107(a) also provides that PRPs are liable for " any other necessary costs of response incurred by any other person consistent with the [NCP]." 42 U.S.C. § 9607(a)(4)(B); Bedford Affiliates v. Sills, 156 F.3d 416, 423 (2d Cir. 1998). Resolving confusion among the circuits, the Supreme Court held in United States v. Atlantic Research Corp., 551 U.S. 128, 135-36, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007), that the phrase " any other person" referred not only to innocent property owners under § 107(b) but also to PRPs who voluntarily clean a site. Thus, PRPs can themselves sue other PRPs under § 107(a) to recover CERCLA cleanup costs. Id.

In addition, PRPs may seek contribution from other PRPs under § 113(f) for costs incurred in responding to hazardous waste contamination. Id. at 139. " As originally enacted in 1980, CERCLA contained no provision expressly providing for a right of action for contribution." Cooper Indus., 543 U.S. at 162. CERCLA was later amended in the

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Superfund Amendments and Reauthorization Act of 1986 (" SARA" )[9] to provide the contribution remedy that many district courts had already read into the statute. Niagara Mohawk, 596 F.3d at 127; see also Schaefer v. Town of Victor, 457 F.3d 188, 196 (2d Cir. 2006) (" [S]everal district courts held that, 'although CERCLA did not mention the word 'contribution,' such a right arose either impliedly from provisions of the statute, or as a matter of federal common law.'" (quoting Cooper Indus., 543 U.S. at 162 (collecting cases))). That amendment resulted in § 113(f), which was designed to " clarif[y] and confirm . . . the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the [PRP] believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share under the circumstances." Id. (quoting H.R. Rep. NO. 99-253(I), at 79 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2861).

Finally, with the enactment of § 113(f), Congress created a statutory settlement scheme that " was put in place to aid the expeditious resolution of environmental claims." Bedford, 156 F.3d at 427. " To accomplish this objective Congress employed incentives for [PRPs] to settle and strong disincentives for non-settling [PRPs]." Id. Section 113(f)(2) provides that

[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.

" Hence, [PRPs] who choose to settle gain protection from contribution, enjoy potentially favorable settlement terms, and retain the ability to seek contribution from other [PRPs]." Id. Nonsettling PRPs, however, " are barred from seeking contribution from the settling [PRPs] and thereby face potentially disproportionate liability." Id. (citing In re Reading Co., 115 F.3d 1111, 1119 (3d Cir. 1997)).

1. Plaintiff's CERCLA § 113(f) Claim

" [T]he remedies available in § § 107(a) and 113(f) complement each other by providing causes of action 'to persons in different procedural circumstances.'" A. Research, 551 U.S. at 139 (citing Consol. Edison Co. of N.Y. v. UGI Utils., Inc., 423 F.3d 90, (2d Cir. 2005)). In Cooper Industries, 543 U.S. at 165-68, the Supreme Court held that § 113(f)(1) " authorizes contribution claims only 'during or following' a civil action under § 106 or § 107(a)." Therefore, the PRP in that case could not avail itself of a claim under § ...

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