LAWRENCE E. KAHN, District Judge.
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")
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.
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
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"),
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.
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);
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 Atl. 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, 127 S.Ct. 1955, and "more than a sheer possibility that a defendant has acted unlawfully," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. 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, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). 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, 129 S.Ct. 1937.
CERCLA was enacted in its original form in 1980 in response to New York's Love Canal Disaster.
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, 127 S.Ct. 2331. "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, 125 S.Ct. 577. CERCLA was later amended in the
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
"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)).
"[T]he remedies available in §§ 107(a) and 113(f) complement each other by providing causes of action `to persons in different procedural circumstances.'" Atl. Research, 551 U.S. at 139, 127 S.Ct. 2331 (citing Consol. Edison Co. of N.Y. v. UGI Utils., Inc., 423 F.3d 90, 99 (2d Cir.2005)). In Cooper Industries, 543 U.S. at 165-68, 125 S.Ct. 577, 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 § 113(f)(1) because it was neither currently subject to such an action nor had it previously been subject to such an action. Id. at 168, 125 S.Ct. 577.
Section 113(f)(3)(b) claims are similarly limited. The Second Circuit has held that "`only when liability for CERCLA claims, rather than some broader category of legal claims, is resolved' does section 113(f)(3)(b) create a right to contribution." W.R. Grace, 559 F.3d at 89 (quoting Consol. Edison, 423 F.3d at 95). Thus, unless a PRP has settled its CERCLA liability with the federal or a state government, it has no § 113(f)(3)(b) claim for contribution. Id.; see also Niagara Mohawk, 596 F.3d at 124-28 (considering whether the plaintiff's claims fit within the requirements of § 107(a) or § 113(f)(3)(B)); Seneca Meadows,
Filling the gap left by these limitations on § 113(f), § 107(a) is available to a PRP to recover CERCLA costs that it has incurred voluntarily.
The Supreme Court has further clarified the relationship between §§ 107(a) and 113(f), as well as when a PRP may avail itself of one section or the other:
Atl. Research, 551 U.S. at 139-40, 127 S.Ct. 2331 (emphasis added). In sum, "[PRPs'] costs incurred voluntarily are recoverable only by way of § 107(a)(4)(B), and [PRPs'] costs of reimbursement to another person pursuant to a legal judgment or settlement are recoverable only under § 113(f)." Id. at 139 n. 6, 127 S.Ct. 2331.
Even if Plaintiff's § 113(f) and § 107(a) claims were properly alleged in the alternative,
The Court has the authority under Rule 12(b)(6) to dismiss a complaint sua sponte for "failure to state a claim upon which relief may be granted" if the complaint lacks an arguable basis either in law or fact. Thomas v. Scully, 943 F.2d 259, 260 (2d Cir.1991); Ideyi v. State Univ. of N.Y. Downstate Med. Cntr., No. 09-CV-1490, 2010 WL 3938411, at *7 (E.D.N.Y. Sept. 30, 2010) ("A district court's ability sua sponte to dismiss a complaint that lacks a basis in law or fact is well-established." (quoting Muka v. Murphy, 358 Fed.Appx. 239, 241 (2d Cir.2009))); Citadel Mgmt., Inc. v. Telesis Trust, Inc., 123 F.Supp.2d 133, 146 (S.D.N.Y.2000) ("[T]he Court has discretion to dismiss claims sua sponte pursuant to Rule 12(b)(6), particularly where it is clear that a plaintiff could not have prevailed on the facts as alleged in the complaint."). Notice and an opportunity for the nonmovant to be heard are the only prerequisites to the Court's exercise of its inherent powers in this fashion. Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir.1994); Thomas, 943 F.2d at 260; Brooks v. Sposato, No. 11 CV 2598, 2012 WL 6756944, at *6 n. 19 (E.D.N.Y. Nov. 26, 2012); Bondi v. Grant Thornton Int'l (In re Parmalat Sec. Litig.), 377 F.Supp.2d 390, 415 (S.D.N.Y.2005).
In its February Order, the Court directed Plaintiff to file additional briefing explaining why its § 113(f) claim is not barred by Cooper Industries and W.R. Grace. Feb. Order at 2. Plaintiff filed its Supplemental Brief on March 4, 2013. Dkt. No. 35. Thus, the Court has satisfied its duty to provided Plaintiff with sufficient notice and a fair opportunity to be heard. See Brady v. Marks, 7 F.Supp.2d 247, 249 (W.D.N.Y.1998) (relying on Herkimer to order the plaintiff to show cause why his complaint should not be sua sponte dismissed by the court).
In its Supplemental Brief, Plaintiff concedes that it has not yet been sued under §§ 106 or 107(a) and that it has not yet settled its CERCLA liability with the government. Supp. Br. at 3. Nevertheless, Plaintiff argues for two reasons that the Court should permit both its § 107(a) and § 113(f) claims to proceed to trial, when it will allegedly become clear which section applies in this case. Neither reason is convincing. First, Plaintiff argues that its § 113(f) claim should go forward because, under the current state of the law, it is unclear what happens when a PRP can satisfy the requirements both of § 107(a) and of § 113(f) or when a PRP who has
Accordingly, Count II of Plaintiff's Complaint is sua sponte dismissed without prejudice.
In its Motion, Defendant requests that the Court dismiss Counts VI through VIII of Plaintiff's Complaint because CERCLA preempts these state-law claims. Mem. at 5-8; Reply at 1-5. Because the Court sua sponte dismisses Plaintiff's § 113(f) claim, the question of whether Plaintiff's state-law restitution, indemnification, and contribution claims are preempted by that section is moot. Plaintiff's § 107(a) claim remains, however, and therefore the Court must determine whether § 107(a) requires dismissal of Counts VI through VIII on preemption grounds.
Congress's power to enact laws that preempt state and local law arises under the Supremacy Clause of the U.S. Constitution.
Like the availability of §§ 107(a) and 113(f) to plaintiffs in certain procedural circumstances, the issue of whether these two sections preempt various state-law causes of action has been the subject of much litigation in this and other circuits. The Second Circuit first considered CERCLA's preemption of state law in Shore Realty, holding that "[w]hile CERCLA expressly does not preempt state law, it precludes recovering compensation for the same removal costs or damages or claims under both CERCLA and state or other federal laws." 759 F.2d at 1041; see also Marsh v. Rosenbloom, 499 F.3d 165, 177 (2d Cir.2007) ("While CERCLA does state that it applies `[n]otwithstanding any other provision or rule of law,' this clause refers only to substantive liability and does not express congressional intent to preempt state rules on how litigation proceeds, including a party's amenability to suit." (internal citations omitted)). In so holding, the Second Circuit relied on two subprovisions of CERCLA § 114.
Id. § 9614(b). This prohibition against recovering the same costs under both CERCLA and other federal or state laws would become known to later courts applying it as the "double recovery" bar. See Fitzgibbons v. City of Oswego, No. 5:10-CV-1038, 2011 WL 6218208, at *14 (N.D.N.Y. Dec. 13, 2011); New York v. West Side, 790 F.Supp.2d 13, 25-28 (E.D.N.Y.2011); New York v. Hickey's Carting, 380 F.Supp.2d 108, 114-16 (E.D.N.Y.2005).
Shore Realty was decided in 1985, one year before SARA amended CERCLA to add § 113(f). The Second Circuit would address whether certain state-law claims are preempted by that section more than ten years later in Bedford. In that case, the Second Circuit first rejected the notion that "CERCLA ... preempt[s] state law
Bedford's preemption holding was revisited and ultimately extended in Niagara Mohawk. In that case, the Second Circuit held that at least when a PRP "did not incur costs outside of CERCLA, [it] has no grounds for contribution under New York law," explaining:
Niagara Mohawk, 596 F.3d at 138. After "reiterat[ing]" that state indemnification claims are preempted by CERCLA, id. at 139 (citing Bedford, 156 F.3d at 427), the Niagara Mohawk court next held that CERCLA also preempts state unjust enrichment claims because "allowing [such claims] for CERCLA expenses would again circumvent the settlement scheme, as PRPs could seek recompense for a legally unjustified benefit outside the limitations and conditions of CERCLA." Id. at 139.
While Bedford and Niagara Mohawk were decided in the context of a § 113(f) claim, the district courts in Hickey's Carting and West Side considered whether state-law claims were preempted in the context of § 107(a) claim. Both courts decided that they were not. In Hickey's Carting, the State of New York brought suit under § 107(a) seeking to recover CERCLA cleanup costs from the PRP defendants. 380 F.Supp.2d at 110-11. New York also brought concurrent state-law claims for restitution, subrogation, and implied indemnity, which the defendants in turn sought to dismiss as preempted. Id. at 110-11. In holding that New York's state-law claims were not preempted by § 107(a), the Hickey's Carting court made several conclusions. First, as a predicate to all other analysis, it concluded that Bedford's apparently broad holding was limited to § 113(f) claims. Id. at 112-13. This conclusion was based, first, on the context of the Bedford court's preemption discussion, id. (citing Pfohl Bros. Landfill Site Steering Comm. v. Allied Waste Sys., 255 F.Supp.2d 134, 152-53 (W.D.N.Y.2003)), and, second, on the observation that "the actual conflict which supported the finding of preemption in Bedford" was not present in Hickey's Carting:
Id. at 113 (internal citations and footnotes omitted). The Hickey's Carting court went on to hold that "[i]n the absence of any true danger that allowing the State to bring its common law claims ... alongside its [§ 107(a)] action will undermine the settlement incentives set forth in section 113, Bedford's holding does not apply" and there is no conflict preemption on that basis. Id. at 114.
Second, the Hickey's Carting court concluded that § 114(b)'s double-recovery bar did not require a finding of preemption, stating that it was "premature" to dismiss the state-law claims as preempted because there had not yet been double recovery and "the potential that [New York] may not be able to recover all of its costs from each cause of action" still remained. Id. at 115.
Finally, the Hickey's Carting court concluded that allowing New York to recover on its state-law claims if its § 107(a) claim failed, because it did not meet CERCLA's statute of limitations or NCP requirements, would not "undermine[] and conflict[] with CERCLA's purposes." Id. at 116. The district court observed that finding preemption based on a failure to meet CERCLA's NCP requirements would be "akin" to a finding of field preemption because "common law remedies will never include a requirement that the costs sought were incurred consistent with the NCP." Id. The district court held that in situations where a state brings state-law claims concurrently with a § 107(a) claim, the concern identified in Bedford that a PRP would "use the common law to outmaneuver the federal scheme set in place by Congress" was not implicated: "There can be no such concern here, as it is the government, not a private [PRP], who is seeking to recover the full extent of its response costs under the various remedies open to it." Id. at 117. The court buttressed its holding by noting CERCLA's "overriding" goals of "hold[ing] polluters responsible for their actions by forcing them to clean up hazardous waste sites and to reimburse the government for such cleanup when it has been done for them," id. (citing United States v. Witco Corp., 865 F.Supp. 245, 247 (E.D.Pa.1994); Columbia River Serv. Corp. v. Gilman, 751 F.Supp. 1448, 1452-53 (W.D.Wash.1990)), which the district court found "tip[ped] the balance toward[] finding that there is no actual conflict between the state common law and CERCLA's NCP requirements." Id. The district court then held that "CERCLA's statutory language, legislative history, and interpreting case law all indicate that Congress did not intend for CERCLA to preempt state common law statutes of limitations." Id. at 118.
In the more recent case of West Side, in which the State of New York brought a § 107(a) claim concurrently with state-law claims for restitution, indemnification, and public nuisance, the district court held that "conflict preemption does not apply when there is no contribution action under
Plaintiff argues that West Side provides clear support for its argument that § 107(a) does not preempt concurrent state-law claims. Resp. at 4. Defendant, however, argues that West Side is distinguishable from the present case on the ground that the plaintiff in West Side was a state, not a private PRP. Reply at 4-5. The Court finds that Plaintiff's status as a private PRP distinguishes this case from West Side, as well as from Hickey's Carting.
The instant case puts the following unanswered question
While West Side and Hickey's Carting are not directly on point, the analytical framework employed by the district courts in those cases provides a useful guide for the Court's own analysis in answering this question. Under that framework, the Court must decide: (1) whether allowing Plaintiff's state-law claims to proceed would conflict with CERCLA's settlement scheme; (2) whether allowing Plaintiff to recover on those claims if its § 107(a) claim were to fail would conflict with CERCLA's NCP requirement; and (3) whether the double-recovery bar in CERCLA § 114(b) preempts Plaintiff's state-law claims.
A PRP bringing a claim under CERCLA § 107(a) will not have incurred CERCLA liability, either through judgment or settlement, to a third party. In this context, the third party will typically be either the federal or a state government. Instead, the PRP will be seeking to recover CERCLA cleanup costs that it incurred voluntarily from another PRP who has or has not already settled its own CERCLA liability with the government.
In this situation, where the suing PRP has not incurred liability to a third party, concerns about CERCLA preempting state-law indemnification and contribution claims are generally illusory because such claims universally require a plaintiff to make a compulsory payment before they become ripe. See 18 AM.JUR.2D Contribution § 9 ("The primary requisites of the equitable right to contribution ... are:... (2) compulsory payment or other discharge by the party seeking contribution of more than his or her fair share of the common obligation or burden."); 41 AM. JUR.2D Indemnity § 26 ("Generally, a cause of action for implied indemnity does not come into existence until the indemnitee has suffered actual loss through the payment of a judgment or settlement."). Because a § 107(a) plaintiff will necessarily have incurred CERCLA costs voluntarily rather than compulsorily, it will have no basis for maintaining an indemnification or
Notwithstanding this practical reality, a private PRP's state-law claims brought concurrently with its CERCLA § 107(a) claim are not preempted as conflicting with § 113(f)'s settlement scheme. In Atlantic Research, the Supreme Court held that the settlement scheme was not undermined by allowing a PRP to bring a § 107(a) claim against another PRP:
551 U.S. at 140-41, 127 S.Ct. 2331 (citations omitted). This reasoning extends easily to a private PRP's concurrent § 107(a) and state-law claims: A PRP that finds itself subject to such a combination of claims can, as Atlantic Research suggests, bring a counterclaim under § 113(f) for equitable apportionment of the CERCLA cleanup costs. If the PRP being sued were to settle its CERCLA liability with the federal or a state government, the district court overseeing the case would factor that settlement into its liability calculations. After determining the amount of the settling PRP's CERCLA liability to the suing PRP, the district court would then undoubtedly prohibit the suing PRP from recovering the same costs under its state-law claims based on CERCLA § 114(b).
This conclusion is consistent with the Second Circuit's case law on CERCLA preemption. As discussed at length above, in both Bedford and Niagara Mohawk the Second Circuit expressed concern that a PRP would circumvent § 113(f)'s settlement scheme by bringing state-law claims against other PRPs. This concern is realized, however, only when the state-law claims seek and would ultimately recover CERCLA response costs. On that point Niagara Mohawk is clear. There, the Second Circuit first observed that "§ 113 was intended to provide the only contribution avenue for parties with response costs incurred under CERCLA" before going on to hold that "state law contribution claims for CERCLA response costs conflict with CERCLA contribution claims and therefore are preempted." 596 F.3d at 138 (emphasis added). Thus, state-law claims brought concurrently with a § 107(a) claim "seek recompense for a legally unjustified benefit outside the limitations and conditions of CERCLA," id. at 139, only when they seek to recover costs already available under CERCLA. This interpretation is further supported by the Second Circuit's statement that when a PRP "did not incur costs outside of CERCLA, [it] has no grounds for contribution under New York law." Id. at 138 (emphasis added). That there are grounds for state-law contribution when the PRP has incurred costs outside of CERCLA is clearly implied by that statement.
Furthermore, Hickey's Carting supports the conclusion that a private PRP's state-law claims brought alongside its § 107(a) claim do not conflict with CERCLA's settlement scheme. There, the district court held that Bedford did not apply "[i]n the absence of any true danger that allowing the State to bring its common law claims... alongside its [§ 107(a)] action will undermine the settlement incentive set forth in section 113." Hickey's Carting, 380 F.Supp.2d at 114. This holding extends to private PRP plaintiffs because, as the Court has illustrated above, there is little real danger that § 113(f)'s settlement incentives will be undermined if a private PRP is permitted to bring state-law claims alongside its § 107(a) claim.
Accordingly, CERCLA § 113(f)'s settlement scheme does not preempt Plaintiff's state-law claims in Counts VI through VIII.
Both West Side and Hickey's Carting recognized that state law could conflict with CERCLA not only through CERCLA's settlement scheme but also through its NCP requirements. Under § 107(a), PRPs are liable only for cleanup costs that are incurred consistent with the NCP. If the party seeking cleanup costs failed to adhere to the NCP, CERCLA denies recovery. The argument for conflict preemption, then, is: If a CERCLA plaintiff could recover cleanup costs on state-law grounds (which are potentially easier to satisfy) where its concurrent § 107(a) claim fails, future plaintiffs may see that as incentive not to comply with the NCP, thereby undermining CERCLA's goal of NCP compliance.
In Hickey's Carting, the district court rejected this argument but did so partly on the basis that "[t]here could be no such concern here, as it is the government, not
The other basis for Hickey's Carting's finding of no preemption is more convincing, and the Court finds that it applies to this case. The district court in Hickey's Carting held that finding a conflict between state-law claims and CERCLA because the state-law claims did not satisfy the requirements of the NCP "would be akin to field preemption by CERCLA of state common law claims" because "common law remedies will never include a requirement that the costs sought were incurred consistent with the NCP." 380 F.Supp.2d at 116-17. Field preemption under CERCLA is, of course, "inconsistent with CERCLA's savings clauses as well as the Second Circuit's holding in Bedford." Id. This conclusion does not depend on whether the plaintiff is a state or a private PRP, but rather is equally applicable in both cases.
The Court also finds that West Side's reasons for rejecting preemption of state law by way of CERCLA's NCP requirements are persuasive and apply to a private PRP. There, the district court held that the plaintiff could maintain state-law claims even if its § 107(a) claim failed because CERCLA, in § 114(b), expressly authorized "[t]he imposition of additional hazardous waste contamination liability under state law, on facts that would not, for whatever reason, support CERCLA liability." West Side, 790 F.Supp.2d at 27. Furthermore, responding to the defendants' argument that they could be subject to CERCLA liability even if the NCP were not complied with, the district court observed that, "[c]learly, there can be no recovery under CERCLA without NCP compliance." Id. (emphasis in original). Both of these findings support the conclusion that state-law claims are not preempted by CERCLA's NCP requirements whether accompanying § 107(a) claims brought by a state or by a private PRP.
Finally, permitting private PRPs and states alike to bring state-law claims alongside their § 107(a) claims accomplishes CERCLA's remedial purpose of
Accordingly, CERCLA NCP requirements do not preempt Plaintiff's state-law claims in Counts VI through VIII.
Ultimately, as much of the discussion supra makes clear, whether state-law claims are preempted by CERCLA boils down to whether double recovery of CERCLA response costs will occur. However, like the district courts in West Side and Hickey's Carting, the Court concludes that it would be acting prematurely if it were to dismiss Plaintiff's state-law claims merely because it is possible for Plaintiff to recover the same costs, and only the same costs, under those claims as it could under CERCLA. Because the circumstances under which double recovery would not result are numerous, dismissing the state-law claims at this stage would be "imprudent."
The Court's previous decision in DVL, Inc., 811 F.Supp.2d at 597, does not direct a different result. Although in that case the Court found that a § 107(a) claim preempted the plaintiff's concurrent state-law indemnification claim, the Court did so at the summary judgment stage when it became evident that there would be double recovery. Id. Here, Defendant is certainly free to make a "renewed attack at a later, more informed and factually developed point in th[is] litigation," at which time it might be appropriate for the Court to dismiss Plaintiff's state-law claims. West Side, 790 F.Supp.2d at 26 (citing Next Millennium, 2007 WL 2362144, at *11 ("[D]efendants can reassert their motion at a later stage of the litigation when additional information would be available concerning what costs would be recoverable under each claim.")).
Accordingly, CERCLA § 114(a)'s double-recovery bar does not preempt Plaintiff's state-law claims in Counts VI through VIII at this early point in the litigation. The Court therefore denies Defendant's Motion insofar as it seeks to dismiss Counts VI through VIII as preempted by CERCLA. But, as the Court discusses infra, Count VIII is nonetheless dismissed because it is unripe.
In Count VIII of its Complaint, Plaintiff asserts that it is "entitled to full indemnification from [Defendant] for the costs of responding to [Defendant's] releases of hazardous substances, including PCBs, at the Sistersville Site as well as any liability incurred as a result of damage claims asserted
In its Response, Plaintiff advances arguments almost exclusively concerning its entitlement to a declaratory judgment. See Resp. at 8-11. These arguments, however, are completely irrelevant to Defendant's Motion to dismiss Count VIII. First, Count VIII does not seek a declaratory judgment. See Compl. ¶¶ 60-65. Second, the cases that Plaintiff cites in support of its argument all address the availability of a declaratory judgment for future CERCLA costs, not for indemnification or contribution under the common law. See Resp. at 9 (citing New York v. Solvent Chem. Co., 664 F.3d 22, 27 (2d Cir.2011); Cadillac Fairview/Cal., Inc. v. Dow Chem. Co., 840 F.2d 691, 696 (9th Cir.1988); Prisco v. New York, 902 F.Supp. 374, 392 (S.D.N.Y. 1995); Arawana Mills Co. v. United Tech. Corp., 795 F.Supp. 1238 (D.Conn.1992)). These cases are therefore inapposite.
As Defendant correctly asserts in its Memorandum of law and Reply, the real question here is whether Count VIII is ripe absent an allegation that Plaintiff has incurred liability to a third party as a result of Defendant's actions or inactions. Mem. at 9-11. "In general, a case is not ripe if it `involves uncertain and contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Armored Grp., LLC v. Homeland Sec. Strategies, Inc., No. 07 CV 9694, 2009 WL 1110783, at *3 (S.D.N.Y. Apr. 21, 2009) (quoting AMSAT Cable Ltd. v. Cablevision of Connecticut Ltd. P'ship, 6 F.3d 867, 872 (2d Cir.1993)). "More specifically, `New York law clearly provides that a claim for indemnification or contribution is premature where there has been neither entry of judgment nor payment.'" Id. (citing IntelliSec v. Firecom, Inc., No. 00 Civ. 3557, 2001 WL 218940, at *12 (E.D.N.Y. Feb. 1, 2001); Plantronics, Inc. v. United States, No. 88 Civ. 1892, 1990 WL 3202 (S.D.N.Y. Jan. 9, 1990); Bay Ridge Air Rights, Inc. v. State, 57 A.D.2d 237, 394 N.Y.S.2d 464 (1977)).
While conceding that no judgment has been rendered against it, Plaintiff argues that it has made a "payment" entitling it to maintain its indemnification and contribution claims by paying for PCB soil sampling. Resp. at 3 n. 2, 10 n. 9. "Under New York law, a party who voluntarily makes a payment has `no right to seek indemnification for a loss it was not obligated to pay in the first instance.'" Underpinning & Found. Skanska, Inc. v. Travelers Cas. & Sur. Co. of Am., 726 F.Supp.2d 339, 352 (S.D.N.Y.2010) (quoting Reliance Ins. Co. v. State Farm Mut. Auto. Ins. Co., 243 A.D.2d 456, 664 N.Y.S.2d 958, 958 (1997)). "The voluntary payment doctrine bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law." Id. (quoting Merchants Mut. Ins. Group v. Travelers Ins. Co., 24 A.D.3d 1179, 806 N.Y.S.2d 813, 813 (2005)) (internal quotation marks omitted). Because Plaintiff's payment for PCB soil testing was made voluntarily to cover costs it incurred by choice rather than by legal obligation to a third party, it is not a payment that can support Plaintiff's claims for indemnification and contribution. See Charter Oak Fire Ins. Co. v. Bolding, No. 08-CV-2632, 2009 WL 3246116, at *4 (E.D.N.Y. Oct. 1, 2009) (noting that claims for indemnification "are not ripe for adjudication until liability has been imposed upon the party to be indemnified"); Armored Grp., 2009 WL 1110783, at *3-4 (dismissing claims for
Accordingly, Count VIII of Plaintiff's Complaint is dismissed without prejudice as premature.
In Count IX of its Complaint, Plaintiff asserts that Defendant's use of the Sisterville Site has "interfered, and will continue to interfere, substantially and unreasonably with [Plaintiff's] private use of its property." Compl. ¶ 67. Accordingly, Plaintiff seeks damages under the common law of private nuisance. Id. ¶ 71.
Defendant argues that Count IX should be dismissed because West Virginia does not recognize a claim for private nuisance where, as here, the nuisance originated on the same property that was allegedly impacted by it. Mem. at 11-13; Reply at 8-10. Plaintiff responds by citing the decision of the Supreme Court of Appeals of West Virginia in State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 200 W.Va. 221, 488 S.E.2d 901, 924-25 (1997), which Plaintiff argues permits intergenerational nuisance claims. Resp. at 11-12. Defendant counters that Plaintiff mischaracterizes its argument, which Defendant claims does not turn on whether a nuisance "may continue even after a defendant's offensive conduct has ended" but whether "a private nuisance must originate from activities outside the impaired property." Reply at 8.
The Court finds Kermit Lumber inapposite to Defendant's ground for seeking dismissal of Count IX. First, Kermit Lumber incorporates the doctrine of continuing nuisance into West Virginia law, see 488 S.E.2d at 924-25 (quoting Arcade Water Dist. v. United States, 940 F.2d 1265 (9th Cir.1991)), but, as Defendant correctly points out, this doctrine "helps to determine collateral issues such as the applicable limitations period and the availability of single or successive actions but is irrelevant to whether a nuisance claim has been stated in the first place," Reply at 8. Second, Kermit Lumber involved a claim for public nuisance caused by the defendant's contamination of public waters through runoff from the polluted property. See 488 S.E.2d at 925-26. But "a private nuisance action is different from a public nuisance action." Id. at 925 n. 29. Unlike a private nuisance, a public nuisance does not necessarily involve "interference with the private use and enjoyment of another's land." Hendricks v. Stalnaker, 181 W.Va. 31, 380 S.E.2d 198, 200 (1989). Rather, a public nuisance interferes with the rights of "the general public," typically by causing harm to "the public health and safety" or the environment. Kermit Lumber, 488 S.E.2d at 921, 925 n. 29 (internal quotation marks omitted). Thus, because a public-nuisance plaintiff seeks to vindicate a public right that does not depend on "the exercise of private property rights," the mere "happenstance" that the nuisance originated on the plaintiff's land is insufficient to defeat the claim. See Phila. Elec. Co. v. Hercules, Inc., 762 F.2d 303, 315 n. 13 (3d Cir. 1985). This is not true of a private nuisance claim. See id. at 314, 315 n. 13.
"[A]t the heart of [private] nuisance is the notion that the lawful use of
Accordingly, Count IX of Plaintiff's Complaint is dismissed with prejudice.
Accordingly, it is hereby:
42 U.S.C. § 9607(a)(1)-(4).
CERCLA § 107 "distinguishes between two kinds of response: remedial actions — generally long-term or permanent containment or disposal programs — and removal efforts — typically short-term cleanup arrangements." Schaefer v. Town of Victor, 457 F.3d 188, 195 (2d Cir.2006) (quoting New York v. Shore Realty Corp., 759 F.2d 1032, 1040 (2d Cir.1985)) (internal quotation marks omitted). "Removal actions" and "remedial actions" are fully defined in CERCLA § 101(23), 42 U.S.C. § 9601(23), and § 101(24), 42 U.S.C. § 9601(24), respectively.
