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City of Bethany v. Rockwell Automation, Inc.

United States District Court, W.D. Oklahoma

September 1, 2017




         Before the Court is Plaintiff City of Bethany's Partial Motion to Dismiss Defendants' Counterclaims [Doc. No. 30], filed pursuant to Fed.R.Civ.P. 12(b)(6).[1]Plaintiff seeks a dismissal of counterclaims asserted by Defendants Rockwell Automation, Inc. and Gulfstream Aerospace Corp. under Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675, and the common law doctrine of unjust enrichment. Defendants have timely opposed the Motion, which is fully briefed.[2]

         Factual and Procedural Background

         This case concerns the alleged contamination of soil and groundwater, and a threat to Plaintiff's public water supply wells, caused by aircraft manufacturing operations conducted by Defendants' predecessors on land adjacent to Wiley Post Airport owned by the Oklahoma City Airport Trust (“OCAT”). The contamination is the subject of investigative and remedial work undertaken by OCAT and Defendants under supervision of the Oklahoma Department of Environmental Quality (“DEQ”) pursuant to a Memorandum of Agreement and Consent Order entered in October 2009 and amended in July 2013, and further amended after this case was filed (the “Consent Order”). The investigation shows a migration of toxic substances toward one of the wellfields that Plaintiff uses to supply water for residents, and Defendants and OCAT have now agreed to do remedial work to minimize further migration.

         Plaintiff filed this action in August 2016 to recover compensatory and punitive damages under various state law theories, including common law torts and statutes that protect municipal water supplies. See Okla. Stat. tit. 11, §§ 37-115 & 37-116. Plaintiff alleged it had incurred numerous costs associated with responding to the contamination and higher operating costs of its water system. Plaintiff also asserted a claim under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6981, to abate an “imminent and substantial endangerment to health or the environment, ” id. § 6972(a)(1)(B), and to obtain injunctive relief compelling Defendants to comply with RCRA “by removing toxic chemicals . . . from soil and groundwater.” See Compl. [Doc. No. 1] at 25 (Prayer for Relief, ¶ b).

         In response, Defendants moved to dismiss the RCRA claim, answered the Complaint, and asserted four counterclaims. Defendants bring two counterclaims under CERCLA to obtain declaratory relief and to recover certain costs: Count I, seeks cost recovery under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), for responding to an alleged release of hazardous substances into the groundwater from Plaintiff's sewer line; and Count II, seeks contribution under Section 113(f) of CERCLA, 42 U.S.C. § 9613(f), for Plaintiff's share of costs incurred by Defendants in DEQ's cleanup program. Defendants also bring two counterclaims under state law: Count III, for injunctive relief to abate a public nuisance allegedly created by Plaintiff's contamination of the groundwater; and Count IV, to recover for unjust enrichment allegedly arising from Defendants' remediation of Plaintiff's contamination. Plaintiff moves to dismiss only Defendants' first and fourth counterclaims as legally insufficient.

         Standard of Decision

         “To survive a motion to dismiss [under Rule 12(b)(6)], a [pleading] 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 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). “A claim has facial plausibility when the [claimant] pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         Plaintiff's Motion

         Plaintiff does not question the sufficiency of Defendants' factual allegations but challenges the legal basis of the counterclaims. Defendants' § 107(a) CERCLA counterclaim alleges that Plaintiff is a responsible party who is jointly and severally liable for costs incurred in remediating the groundwater contamination. Plaintiff asserts that this claim fails as a matter of law because Defendants have already agreed to resolve their liability as a responsible party or potentially responsible party, and thus are limited under CERCLA to a contribution claim for costs in excess of their equitable share. Plaintiff contends Defendants cannot pursue both a cost-recovery claim and a contribution claim.

         Plaintiff asserts that Defendants' unjust enrichment counterclaim fails as a matter of law because Defendants admit they are liable for some of the contamination and thus they do not have “clean hands, ” referring to the equitable doctrine. See Pl.'s Partial Mot. Dismiss [Doc. No. 30] at 2; Pl.'s Mem Supp. [Doc. No. 30-1] at 8-9. Further, Plaintiff contends Defendants cannot bring an unjust enrichment claim because they have an adequate remedy at law.


         A. CERCLA Cost-Recovery Counterclaim

         Plaintiff's argument that Defendants are barred from bringing a cost-recovery CERCLA claim is based on the statutory scheme, congressional purpose, and case law interpreting the statute. Section 107(a) authorizes a party who voluntarily undertakes a cleanup for which it may be held liable (a potentially responsible party or PRP) to pursue an action for recovery of response costs against another PRP. See United States v. Atl. Research Corp., 551 U.S. 128, 131 (2007). Section 113(f) authorizes a party who is liable or potentially liable under § 107(a), or who has resolved its liability in an administrative or judicially approved settlement, to bring a claim for contribution against other PRP's for their share of the liability. A question left open by the Supreme Court's decision in Atlantic Research is whether a PRP may bring a cost-recovery action under ยง 107(a) for costs incurred under a consent order. Federal appellate courts ...

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