United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
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).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
and Procedural Background
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.
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).
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.
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.
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
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.
CERCLA Cost-Recovery Counterclaim
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 § 107(a)
for costs incurred under a consent order. Federal appellate