United States District Court, D. South Carolina, Charleston Division
For PCS Nitrogen Inc, Plaintiff: Sandra Kaczmarczyk, LEAD ATTORNEY, PRO HAC VICE, Alton Associates, Washington, DC; William Howell Morrison, LEAD ATTORNEY, Charleston, SC.
For Ross Development Corporation, Defendant: George Trenholm Walker, John Phillips Linton, Jr, Kathleen Fowler Monoc, LEAD ATTORNEYS, Pratt-Thomas Walker, Charleston, SC.
For Ashley II of Charleston LLC, Defendant: Christy Ford Allen, John Allen Massalon, LEAD ATTORNEYS, Wills Massalon and Allen, Charleston, SC.
For Allwaste Tank Cleaning, now known as QualaServices LLC, Defendant: Jason Scott Luck, LEAD ATTORNEY, Seibels Law Firm, Charleston, SC; Perrin Q Dargan, III, Richard Ashby Farrier, Jr, LEAD ATTORNEYS, K& L Gates (Chas), Charleston, SC.
For Robin Hood Container Express, now known as Southeastern Container Express LLC, Defendant: Timothy William Bouch, LEAD ATTORNEY, Leath Bouch and Crawford, Charleston, SC; Yancey Alford McLeod, III, LEAD ATTORNEY, Leath Bouch and Seekings, Charleston, SC.
ORDER AND OPINION
Margaret B. Seymour, Senior United States District Judge.
I. Factual and Procedural Background
This case is the latest in a series that have been filed in which the parties have litigated liability for environmental contamination and sought to recover cleanup costs at the Columbia Nitrogen Superfund Site (the " Site" ) in Charleston, South Carolina. See ECF No. 1 at ¶ ¶ 2-4; Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., 791 F.Supp.2d 431 (D.S.C. 2011). In the original action (the Ashley II action), filed in September of 2005, Ashley II of Charleston, LLC (" Ashley II" ) sued PCS Nitrogen, Inc. (" PCS" ) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (" CERCLA" ), as amended, 42 U.S.C. § § 9601, et seq. Ashley II sought to recover costs incurred to remediate the Site under CERCLA § 107(a), 42 U.S.C. § 9607(a). PCS filed a third-party complaint and a series of amended third-party complaints seeking contribution from other potentially responsible parties (" PRPs" ) under CERCLA § 113, 42 U.S.C. § 9613.
The case was bifurcated into liability and allocation phases by order of the Honorable C. Weston Houck on July 25, 2006. From February 20, 2007 to February 22, 2007, Judge Houck held a bench trial for the liability phase. Judge Houck entered Findings of Fact and Conclusions of Law determining PCS to be the successor-in-interest to a former Site owner, Columbia Nitrogen Corporation (" CNC" ). See Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., No. 2:05-2782, 2007 WL 2893372 (D.S.C. Sept. 28, 2007). The Ashley II case was reassigned to the undersigned on January 6, 2009. From October 26, 2009, to November 6, 2009, and continuing from January 19, 2010, to January 27, 2010, the court held a bench trial for the allocation phase. The court entered its Second Amended Order and Opinion on May 27, 2011. Ashley II, 791 F.Supp.2d 431. Relevant to the instant action, the court equitably allocated liability for the contamination among the parties as follows:
o Ross Development Corporation (" Ross" ) was found to be responsible for forty-five percent (45%)
o PCS was found responsible for thirty percent (30%)
o J. Holcomb Enterprises, L.P., James H. Holcomb, and J. Henry Fair (collectively " Holcomb and Fair" ) was found responsible for sixteen percent (16%)
o Ashley II was found responsible for five percent (5%)
o Robin Hood Container Express, now known as Qualaservices, (" RHCE" ) was found to be responsible for one percent (1%)
o Allwaste Tank Cleaning, now known as Southeastern Container Express, LLC (" Allwaste" ) was found the be responsible for three percent (3%).
Id. at 503-04; see also ECF No. 1 at ¶ ¶ 14-16. The court entered money judgments against PCS, Ross, and RHCE for Ashley II's past response costs and further entered a declaratory judgment for future response costs at the Site in accordance with the equitable allocation of liability provisions of CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2). Ashley II, 791 F.Supp.2d at 507.
On July 29, 2014 PCS filed a motion in Ashley II seeking leave to file a supplemental complaint. ECF No. 771 (2:05-2782). The proposed supplemental complaint alleged that PCS was now remediating the Site and asked the court to issue judgments in PCS's favor against the other parties for past and future response costs. Id. This motion was opposed by the other parties. ECF Nos. 780-84 (2:05-2782). On October 9, 2014, the court entered a text order denying PCS's motion for leave to file a supplemental complaint. ECF No. 791 (2:05-2782). The complaint in this action was thereafter filed by PCS on October 31, 2014, against Ross, Ashley II, Allwaste, and RHCE (collectively " Defendants" ). ECF No. 1.
The within complaint outlines " events since judgment was entered" in the Ashley II litigation. The Complaint states that the U.S. Environmental Protection Agency (" EPA" ) issued a Revised Enforcement Action Memorandum on September 8, 2011, containing removal action plans for the Site. Id. at ¶ 21. The action plans provide for the removal of contaminated soil and the addition of backfill treated with a " chemical amendment" to address groundwater contamination. Id. On December 12, 2013, the EPA issued a Unilateral Administrative Order (" UAO" ) pursuant to CERCLA § 106(a), 42 U.S.C. § 9606(a), to PCS, Holcombe and Fair, and Ashley II. Id. at ¶ 22. PCS asserts that it has undertaken response activities and incurred response costs to comply with the UAO and that it is continuing to incur response costs at the Site. Id. at ¶ ¶ 23-26. PCS asserts three causes of action against Defendants:
1) A cost recovery action pursuant to CERCLA § 107(a)(4)(B) and under CERCLA § 107 through an implied right of action;
2) A contribution claim pursuant to CERCLA § 113(f)(1); and
3) A claim for monetary and declaratory relief for future response costs pursuant to CERCLA § 107, 113(f)(1) and 113(g)(2), and § § 2201 and 2202 of the Declaratory Judgments Act, 28 U.S.C. § 2201-02.
Id. at ¶ ¶ 30-42. On January 5, 2015, Defendants filed motions to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. ECF Nos. 20-23. PCS filed a consolidated response in opposition on January 23, 2015. ECF No. 27. Defendants filed replies on February 2, 2015. ECF Nos. 28-30. The court held a hearing on the motions to dismiss on March 18, 2015. ECF No. 34.
II. Legal Standard for Fed.R.Civ.P. 12(b)(6) Motions
Defendants move under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint. A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support her claim and would entitle her to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). " To survive a Rule 12(b)(6) motion to dismiss, a complaint must '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)). Complaints that merely offer " labels and conclusions" or " a formulaic recitation of the elements of a cause of action" are inadequate. Twombly, 550 U.S. at 555.
" Facts that are 'merely consistent with' liability do not establish a plausible claim to relief." United States ex rel. Nathan v. Takeda Pharms. N. Am., Inc., 707 F.3d 451, 455 (4th Cir. 2013) (quoting Ashcroft, 556 U.S. at 678). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 663. " In addition, although [the court] must view the facts alleged in the light most favorable to the plaintiff, [the court] will not accept 'legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments.'" Nathan, 707 F.3d at 455 (quoting Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)). The court must treat factual allegations of the nonmoving party as true. Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 217-18 (4th Cir. 1994).
PCS argues that the court should consider nothing outside of PCS's complaint when evaluating whether PCS has stated a claim upon which relief can be granted. See Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013) (when considering motions to dismiss courts should not " reach outside the pleadings to make findings of fact." ). Ross, however, maintains that the court can consider the UAO, in particular, because PCS relies on the UAO in its complaint. See Darcangelo v. Verizon Comm'ns, Inc., 292 F.3d 181, 195 n.5 (4th Cir. 2002). The court considers the UAO to be integral to PCS's complaint and no party has challenged its authenticity. The court will, therefore, consider the UAO in evaluating the merits of the motions to dismiss. Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999) (acknowledging that under a Rule 12(b)(6) motion to dismiss a district court may properly consider documents whose authenticity is not challenged, especially where the document is " integral" to the plaintiff's claim).
Defendants make several arguments as to why PCS has not stated in its complaint a claim upon which relief can be granted. These arguments can be grouped into two broad categories: first, those based on interpretation of CERCLA, and, second, those not ...