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United States v. Rohm and Haas Co.

September 21, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ROHM AND HAAS COMPANY, MORTON INT'L, INC., DEFENDANTS.



The opinion of the court was delivered by: Wolfson, United States District Judge

OPINION

Plaintiff United States of America ("the Government") brought the instant suit, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9607(a) and 9613, against Defendants Rohm and Haas Company ("Rohm and Haas") and Morton International, Inc. ("Morton") (collectively, "Defendants"), for the recovery of response costs the Government incurred in connection with the cleanup of Hopkins Farm Superfund Site ("the Site") in Plumstead Township, Ocean County, New Jersey. Defendants move to dismiss the Government's Complaint as time barred, and the Government moves for partial summary judgment to declare that its cause of action did not accrue until after the Third Circuit held that oversight costs were recoverable under CERCLA, in United States v. E.I. Dupont De NeMours & Co., Inc., 432 F.3d 161 (3d Cir. 2005), thereby overturning United States v. Rohn & Haas Co., 2 F.3d 1265 (3d Cir. 1993).

For the following reasons, the Court concludes that the Government's Complaint is untimely. Consequently, Defendants' motion is granted and the Government's motion is denied.

I. FACTS AND PROCEDURAL HISTORY

The following facts are viewed in the light most favorable to the Government since I must take the nonmoving party's version of facts as true on a motion to dismiss. Between 1950 and 1965, Morton, Rohm and Haas (Morton's successor-in-interest), or one of Morton's predecessors, disposed of methylene chloride, acetone, tricholorethene, and other wastes at the Site, a 57-acre parcel surrounded by residences and farms. See Compl., ¶ 6-7. Several of these wastes contaminated the soil and groundwater at the Site. Id. at ¶ 8. On September 1, 1984, following site investigations by the New Jersey Department of Environmental Protection ("NJDEP"), the United States Environmental Protection Agency ("EPA") listed the Site on the National Priorities List of abandoned hazardous waste sites. Id. at ¶ 9. NJDEP then conducted a Remedial Investigation and Feasibility Study, which it ultimately concluded in 1992.

Meanwhile, in August of 1991, Defendants entered into an Administrative Consent Order with NJDEP to remove the hazardous substances from the Site. Id. at ¶ 12. Defendant removed the substances from 1991 through 1995. In July 1996, EPA issued a "Baseline Risk Assessment" of the Site. In that assessment, EPA found that the Site no longer posed a risk to human health or the environment. The assessment, however, recommended further monitoring to verify those findings. Id. at ¶ 14.

Shortly after the assessment was issued, EPA issued a Record of Decision ("ROD") in September of 1996. In that ROD, EPA concluded, inter alia, that continued Site inspections as well as monitoring of the groundwater, surface water and soil was required. Id. at ¶ 15. "By letter dated April 9, 1997, EPA notified Defendants of their potential liability under CERCLA with respect to the Site." Id. at ¶ 16.

Following the notification of potential CERCLA liability, on September 24, 1997, Defendant Morton entered into a consent order with EPA ("1997 Consent Order"). Id. at ¶ 17. In the 1997 Consent Order, Morton agreed to conduct the continued Site inspections and monitoring mandated by the ROD. Morton, further, agreed to pay a portion of the response costs EPA incurred in connection with the Site. Id. Importantly, the 1997 Consent Order explicitly excluded any reimbursement for oversight costs. Def. Open. Br., Exh. 2 ("1997 Consent Order") at 22. Oversight costs were defined by the 1997 Consent Order as "future response costs incurred by EPA in monitoring and supervising [Morton's] performance to determine whether such performance is consistent with the requirements of this Consent Order ...." Id. The 1997 Consent Order also included a reservation of rights, wherein the EPA "reserve[d] its right to bring an action against the Respondent under Section 107 of CERCLA for the recovery of all response costs incurred by EPA at the Site [including] any future costs incurred ...." Id. at 24. No tolling agreement was included in the 1997 Consent Order.

A few years later, on December 10, 2001, EPA notified Morton that there were no longer any potential risks to human health and the environment, and that monitoring was complete. Id. at 18. The site was delisted from the National Priorities List of abandoned hazardous waste sites on August 27, 2002. Id. at 19. Another six years later, on November 20, 2008, EPA sent Defendant Rohm and Haas a letter demanding payment for the remaining past response costs. Id. at 20.

Before the complaint was filed, EPA and Rohm and Haas entered into a tolling agreement for the period of November 18, 2008 through March 22, 2009. Def. Open. Br., Exh. 2 ("Tolling Agreement").*fn1 That agreement was later extended to July 31, 2009. The Government filed its complaint on October 29, 2009, seeking recovery of response costs under 42 U.S.C. § 9607(a), and a declaratory judgment for future response costs that the EPA may incur in connection with the Site under 42 U.S.C. § 9613(g)(2). While the complaint does not specify which response costs the Government seeks, for the purposes of this motion, the Government states that the Court "need only consider the recoverability of oversight costs." Govt. Reply at 1 n.1.*fn2

After the complaint was filed, Defendant filed the instant motion to dismiss on statute of limitation grounds, and the Government filed a cross-motion for partial summary judgment. In addition, the Government has filed a motion to strike Defendants' surreply brief. For the following reasons, Defendants' motion to dismiss is granted and the Government's motion for partial summary judgment is denied. Because the Court does not reach the issue addressed in Defendants' surreply, Plaintiff's motion to strike that brief is denied as moot.

II. STANDARD OF REVIEW

A. Motion to Dismiss Standard

When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3rd Cir. 2008) (citation and quotations omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 1968 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. In ruling on a motion to dismiss, courts must generally focus on the complaint, however, where a document attached to the parties' briefing is "integral to or explicitly relied upon in the complaint, " courts may consider that document. See In Re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Here, in connection with its motion to dismiss, Defendants attached a copy of the 1997 Consent Order between Morton and the EPA. The Court may properly consider this document on a motion to dismiss because it is referenced in the Complaint. See id. Defendants also attached a copy of the Tolling Agreement. This document may be considered because it is integral to the viability of the Government's claims. Id.

B. Summary Judgment Standard

"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n. 1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56(c). For an issue to be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d ...


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