United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
This case involves efforts by the Environmental Protection Agency (the "EPA") to clean-up lead contamination in the soil of the Village of Depew, New York (the "Superfund Site"). Plaintiff NL Industries, Inc. ("NL Industries" or "plaintiff") is a New Jersey corporation that operated a 7.5-acre brass foundry within the Superfund Site from 1892 to 1972. Defendants are all former owners (or successors in interest) to properties also located in or near the Superfund Site. Plaintiff alleges that pursuant to an agreement with the EPA, it has incurred and will continue to incur significant costs for clean-up and removal of hazardous materials at the site. Plaintiff alleges that defendants (or their predecessors) contributed to the contamination of the Superfund Site, and has filed a claim for cost recovery and/or contribution pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"). Plaintiff also seeks a declaratory judgment against defendants for costs that, plaintiff claims, the EPA will likely assess or pursue against plaintiff in the future for continued removal and clean-up.
Defendant Gould Electronics, Inc. ("Gould") formally operated a steel plant and foundry on the Superfund Site that produced railroad car couplers, as well as a storage battery works plant that produced lead-acid batteries. Gould moved to dismiss plaintiff's fourth-amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that plaintiff's CERCLA claims are timebarred and its request for declaratory judgment is premature and not ripe. Gould also argues that plaintiff's state law claims for contribution and indemnification are preempted by CERCLA.
The matter was referred to Magistrate Judge Hugh B. Scott pursuant to 28 U.S.C. §636(b)(1)(B). Magistrate Judge Scott issued a Report and Recommendation recommending: (1) that Gould's motion to dismiss the CERCLA cost recovery claim based upon statute of limitations ground be denied; (2) that Gould's motion to dismiss the declaratory judgment action be granted; and (3) that Gould's motion to dismiss the state law contribution and indemnification claims be granted. Defendant filed objections to Magistrate Judge Scott's recommended denial of its motion to dismiss the CERCLA cost recovery claim, and plaintiff filed objections to Magistrate Judge Scott's recommendation to grant dismissal of the declaratory judgment claim.
For the foregoing reasons, the Court adopts Magistrate Judge Scott's recommendation to deny the motion to dismiss with respect to the CERCLA cost recovery claim (Count I) and grant the motion to dismiss with respect to the state law contribution and indemnification claims (Counts III and IV). However, the Court rejects Magistrate Judge Scott's recommendation to grant the motion to dismiss with respect to the declaratory judgment claim (Count II).
In September 2004, NL Industries signed an Administrative Order on Consent ("AOC") agreeing to conduct specified response activities at the Superfund Site under the supervision of the EPA. The work required by the AOC involved the excavation and removal of soil containing hazardous materials and replacement with clear fill, in order to abate any imminent danger to the public health and welfare in the surrounding residential neighborhood. The complaint refers to this location and clean-up as the "Phase I Site". NL Industries alleges that it completed work at the Phase I Site in February 2007, and that it incurred significant costs in conducting those response activities. NL Industries alleges that Gould, among other defendants, contributed to the contamination of the Phase I Site through aerial deposition and the sale and/or disposal of leadbearing waste which was used as fill materials in connection with the development of properties in the area.
The complaint further alleges that upon subsequent investigation, the EPA determined that additional response activities were required at additional properties. Plaintiff's complaint refers to these additional properties, and the anticipated clean-up, as the Phase II Site. The EPA then began response activities at the Phase II Site. The EPA determined that Gould, along with other defendants, were potentially responsible parties for contamination of the Phase II Site as well. Plaintiff alleges that Gould's aerial disposition and the sale and/or disposal of contaminated fill produced waste containing lead and other hazardous substances also contributed to contamination at the Phase II Site.
Plaintiff seeks cost recovery from defendants, including Gould, for its actual expenditures during the Phase I Site removal, and a declaratory judgment for any amount plaintiff may be assessed by the EPA as a result of the Phase II Site removal. Plaintiff also asserts claims for indemnification and common law contribution. As explained in detail below, plaintiff's claims for cost recovery under CERCLA and a declaratory judgment are sufficiently pled and may proceed. However, plaintiff's claims for indemnification and contribution shall be dismissed.
CERCLA's Statute of Limitations
CERCLA provides that an initial claim for recovery of costs in a removal action must be commenced within three years after completion of the removal action. See 42 U.S.C. §9613(g)(2)(A). Here, the parties appear to agree that the clean-up and removal actions undertaken at both the Phase I Site and the Phase II Site constitute a "removal action" within the meaning of Section 101(23) of CERCLA. See 42 U.S.C. §9601(23). However, Gould argues that the Phase I Site clean-up and the Phase II Site clean-up constitute two separate removal actions. Gould maintains that since plaintiff did not file the instant claim against defendants until over four years after the Phase I Site clean-up was completed, plaintiff's cost recovery action under CERCLA must be dismissed as time-barred. Plaintiff, on the other hand, argues that the Phase I Site and Phase II Site cleanups constitute a single removal action, and therefore the statute of limitations for recovery with respect to the Phase I Site costs does not begin to run until removal has also been completed at the Phase II Site.
When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must "accept all of the plaintiff's factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Starr v. Georgeson S'Holder, Inc., 412 F.3d 103, 109 (2d. Cir. 2005). A complaint should be dismissed only if it fails to contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When a court considers a motion under Rule 12(b)(6), it may take into account the complaint as well as "any written instrument attached to the complaint as an exhibit or any statements or documents incorporated in it by reference." Yak v. Bank Brussels Lambert, 252 F.3d 127, 130 (2d. Cir. 2001). Moreover, the Second Circuit has held that in assessing a motion to dismiss, a court may consider a document not incorporated by reference into the complaint "where the complaint relies heavily upon its terms and effects, ' thereby rendering the document integral' to the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d. Cir. 2010); Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d. Cir. 2006); see also Youssef v. Halcrow, Inc., 504 Fed.Appx. 5 (2d. ...