Emhart Industries, Inc. v. United States Department of the Air Force et al

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
________________________________________
)
EMHART INDUSTRIES, INC., 	)
)
Plaintiff, 	)
)
v. 	) 	C.A. No. 11-023 S
)
UNITED STATES DEPARTMENT OF THE AIR 	)
FORCE; UNITED STATES DEPARTMENT OF THE 	)
NAVY; UNITED STATES DEPARTMENT OF 	)
DEFENSE; MICHAEL B. DONLEY, in his 	)
official capacity as Secretary of the 	)
United States Department of the Air 	)
Force; RAY MABUS, in his official 	)
capacity as Secretary of the United 	)
States Department of the Navy; ROBERT M.)
GATES, in his official capacity as 	)
Secretary of the United States 	)
Department of Defense; and THE UNITED 	)
STATES OF AMERICA, 	)
)
Defendants. 	)
________________________________________)
OPINION AND ORDER
WILLIAM E. SMITH, United States District Judge.
Before 	the 	Court 	is 	a 	motion 	to 	dismiss 	four 	out 	of 	the
five 	counts 	in 	the 	amended 	complaint 	(the 	“Complaint”) 	in 	this
case. 	For 	the 	reasons 	set 	forth 	below, 	the 	motion 	is 	granted 	in
part and denied in part.
I. 	Background
Plaintiff 	Emhart 	Industries, 	Inc. 	(“Plaintiff” 	or 	“Emhart”)
brought 	this 	suit 	against 	various 	branches 	of 	the 	United 	States
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military 	(the 	“Defendants” 	or 	the 	“government”), 	including 	the
Air 	Force 	and 	the 	Navy, 	seeking 	damages 	and 	a 	declaratory
judgment 	with 	respect 	to 	dioxin 	contamination 	alleged 	to 	be 	the
responsibility, 	in 	whole 	or 	in 	part, 	of 	Emhart 	at 	the 	Centredale
Manor 	Superfund 	Site 	in 	North 	Providence, 	Rhode 	Island 	(the
“Site”). 	More 	specifically, 	Emhart’s 	complaint 	sets 	forth 	the
following 	five 	counts: 	(1) 	cost 	recovery 	under 	section 	107(a) 	of
the 	Comprehensive 	Environmental 	Response, 	Compensation, 	and
Liability 	Act 	(“CERCLA”); 	(2) 	contribution 	under 	section 	113(f)
of 	CERCLA; 	(3) 	divisibility, 	a 	declaration 	that 	the
contamination 	at 	the 	Site 	is 	divisible 	and 	Emhart 	is 	responsible
for 	no 	more 	than 	its 	divisible 	share; 	(4) 	equitable 	indemnity;
and (5) declaratory judgment.
Defendants 	have 	moved 	to 	dismiss 	all 	but 	the 	contribution
claim.
II. 	Discussion
In 	ruling 	on 	a 	motion 	to 	dismiss, 	the 	Court 	accepts 	all
well-pleaded 	facts 	on 	the 	face 	of 	the 	complaint 	as 	true 	and
draws 	all 	reasonable 	inferences 	in 	favor 	of 	the 	non-moving
party. 	McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006).
A. 	107(a) Cost Recovery
Defendants 	contend 	that 	Emhart 	cannot 	bring 	a 	section
107(a) 	claim 	for 	cost 	recovery 	because, 	pursuant 	to
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administrative 	settlements 	it 	has 	entered 	into 	with 	the
Environmental 	Protection 	Agency 	(the 	“EPA”), 	section 	113(f)
contribution is now Plaintiff’s exclusive remedy.
In 	United 	States 	v. 	Atlantic 	Research 	Corp., 	the 	Supreme
Court 	observed 	that 	there 	is 	a 	potential 	for 	overlap 	between 	the
two 	remedies: 	“We 	do 	not 	suggest 	that 	§§ 	107(a)(4)(B) 	and 	113(f)
have 	no 	overlap 	at 	all. 	. 	. 	. 	[A]t 	a 	minimum, 	neither 	remedy
swallows 	the 	other, 	contrary 	to 	the 	Government’s 	argument.” 	551
U.S. 	128, 	139 	n.6 	(2007); 	see 	also 	Agere 	Sys., 	Inc. 	v. 	Advanced
Envtl. 	Tech. 	Corp., 	602 	F.3d 	204, 	227 	(3d 	Cir. 	2010); 	Solutia,
Inc. 	v. 	McWane, 	Inc., 	726 	F. 	Supp. 	2d 	1316, 	1338 	(N.D. 	Ala.
2010). 	The 	Supreme 	Court 	did 	not 	further 	expound 	on 	the 	nature
or scope of that “overlap.”
At 	this 	stage 	of 	the 	litigation, 	and 	with 	an 	EPA 	Record 	of
Decision 	for 	the 	Site 	still 	to 	come, 	the 	Court 	cannot 	foreclose
the 	possibility 	that 	the 	overlap 	contemplated 	by 	the 	Supreme
Court 	in 	Atlantic 	Research 	could 	apply 	to 	Emhart. 	Emhart 	has
made 	it 	clear 	to 	the 	Court 	that, 	at 	a 	minimum, 	it 	pleads 	in 	the
alternative 	to 	ensure 	that 	it 	will 	be 	able 	to 	recover 	for 	its
cleanup 	efforts 	at 	the 	Site, 	and 	it 	is 	entitled 	to 	do 	so. 	See
Fed. 	R. 	Civ. 	P. 	8(a)(3). 	Accordingly, 	the 	government’s 	motion
to 	dismiss 	as 	to 	the 	section 	107(a) 	cost 	recovery 	claim 	is
denied.
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B. 	Divisibility
Defendants 	contend 	that 	divisibility 	is 	a 	defense 	to 	joint
and 	several 	liability, 	that 	Emhart 	cannot 	assert 	it
affirmatively 	against 	the 	Government, 	and 	that 	an 	affirmative
divisibility 	claim 	would 	be 	barred 	by 	section 	113(h), 	which
precludes 	pre-enforcement 	review 	of 	EPA 	response 	actions.
During 	the 	hearing 	on 	the 	government’s 	motion, 	Emhart 	stated
that 	it 	asserted 	a 	divisibility 	claim 	because 	it 	plans 	to 	seek,
if 	appropriate, 	a 	geographic 	apportionment 	of 	responsibility 	at
the 	Site. 	The 	Court 	is 	satisfied 	that 	such 	an 	apportionment
could 	be 	accomplished 	at 	trial, 	in 	consideration 	of 	Emhart’s
other 	CERCLA 	claims. 	The 	government’s 	motion 	is 	therefore
granted 	as 	to 	the 	divisibility 	claim, 	and 	that 	claim 	is
dismissed 	without 	prejudice 	to 	Emhart’s 	right 	to 	assert
divisibility at some future date as it may be appropriate.
C. 	Equitable Indemnity
Defendants 	argue 	that 	equitable 	indemnity 	sounds 	in 	tort
and 	that 	Plaintiff 	failed 	to 	comply 	with 	the 	Federal 	Tort 	Claims
Act 	(“FTCA”) 	and 	in 	the 	alternative 	that, 	if 	equitable 	indemnity
sounds 	in 	contract, 	Plaintiff 	has 	failed 	to 	establish 	a 	waiver
of sovereign immunity.
Emhart 	bears 	the 	burden 	of 	proving 	this 	Court’s
jurisdiction 	to 	entertain 	its 	equitable 	indemnity 	claim. 	See
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Murphy 	v. 	United 	States, 	45 	F.3d 	520, 	522 	(1st 	Cir. 	1995)
(“[T]he 	party 	invoking 	the 	jurisdiction 	of 	a 	federal 	court
carries 	the 	burden 	of 	proving 	its 	existence.” 	(internal
quotation 	marks 	and 	citation 	omitted)); 	see also 	Skwira 	v.
United 	States, 	344 	F.3d 	64, 	71 	(1st 	Cir. 	2003). 	Since 	Emhart
argues 	that 	its 	claim 	does 	not 	sound 	in 	tort, 	it 	does 	not
contend 	that 	it 	has 	complied 	with 	the 	FTCA. 	Assuming 	arguendo
that 	Emhart 	is 	correct 	that 	equitable 	indemnity 	sounds 	in
contract, 	the 	claim 	is 	most 	properly 	characterized 	as 	one 	based
on 	contract 	implied 	by 	law. 	See 	A 	and 	B 	Constr., 	Inc. 	v. 	Atlas
Roofing 	& 	Skylight 	Co., 	867 	F. 	Supp. 	100, 	105 	(D.R.I. 	1994)
(“Although 	indemnity 	implied-in-law 	is 	based 	on 	quasi-contract,
. 	. 	. 	indemnity 	is 	an 	obligation 	conceived 	independently 	of 	an
underlying 	tort 	and, 	therefore, 	follows 	contract 	principles.”);
see also 	55 	Motor 	Ave. 	Co. 	v. 	Liberty 	Indus. 	Finishing 	Corp.,
885 	F. 	Supp. 	410, 	415 	n.1 	(E.D.N.Y. 	1994) 	(“The 	government
includes 	the 	claim 	for 	equitable 	indemnity 	as 	a 	tort, 	however,
it 	is 	more 	appropriately 	deemed 	a 	contract 	implied 	by 	law.”).
As 	such, 	Emhart 	would 	still 	need 	to 	show 	a 	waiver 	of 	sovereign
immunity.
In 	both 	its 	Complaint 	and 	in 	its 	response 	to 	the
government’s 	motion 	to 	dismiss, 	Emhart 	points 	only 	to 	42 	U.S.C.
§ 	9620(a)(1) 	as 	the 	basis 	for 	waiver. 	While 	that 	provision
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expressly 	provides 	a 	waiver 	of 	sovereign 	immunity 	for 	CERCLA
claims, 	Emhart 	has 	marshaled 	no 	authority 	for 	the 	proposition
that 	it 	also 	provides 	a 	waiver 	for 	related 	common 	law 	claims.
See 	42 	U.S.C. 	§ 	9620(a)(1) 	(“Each 	department, 	agency, 	and
instrumentality 	of 	the 	United 	States 	. 	. 	. 	shall 	be 	subject 	to,
and 	comply 	with, 	this 	chapter 	. 	. 	. 	.”) 	(emphasis 	added); 	see
also 	Murphy, 	45 	F.3d 	at 	522 	(“In 	general, 	statutes 	waiving
sovereign 	immunity 	should 	be 	strictly 	construed 	in 	favor 	of 	the
United 	States.”). 	Without 	more, 	Emhart 	fails 	to 	meet 	its 	burden
of 	proving 	this 	Court’s 	jurisdiction. 	See 	Murphy, 	45 	F.3d 	at
522. 	The 	government’s 	motion 	to 	dismiss 	as 	to 	the 	equitable
indemnity 	claim 	is 	granted; 	the 	claim 	is 	dismissed 	without
prejudice.
D. 	Declaratory Judgment
Defendants 	argue 	that 	Emhart’s 	claim 	for 	declaratory
judgment 	should 	be 	dismissed 	to 	the 	extent 	that 	its 	other 	claims
are 	dismissed 	and 	that 	CERCLA 	does 	not 	provide 	for 	declaratory
judgment with respect to a section 113(f) contribution claim.
Even 	though 	CERCLA’s 	declaratory 	judgment 	provision, 	42
U.S.C. 	§ 	9613(g)(2), 	does 	not 	expressly 	provide 	for 	declaratory
relief 	for 	a 	contribution 	action, 	the 	First 	Circuit 	has 	held
that 	the 	provision 	applies 	to 	contribution 	claims 	for 	both 	past
and 	future 	response 	costs. 	United 	States 	v. 	Davis, 	261 	F.3d 	1,
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47 	(1st 	Cir. 	2001) 	(“[W]e 	find 	that 	§ 	9613(g)(2) 	applies 	to
§ 9613(f) 	contribution 	actions 	for 	both 	past 	and 	future 	response
costs. 	. 	. 	.”). 	Accordingly, 	the 	motion 	to 	dismiss 	is 	granted
as 	to 	the 	declaratory 	judgment 	claims 	corresponding 	to 	the
divisibility 	and 	equitable 	indemnity 	claims, 	but 	it 	is 	denied 	as
to 	the 	declaratory 	judgment 	claims 	with 	respect 	to 	Emhart’s
107(a) cost recovery claim and contribution claim.
III. Conclusion
For 	the 	foregoing 	reasons, 	the 	motion 	to 	dismiss 	is 	GRANTED
in part and DENIED in part.
IT IS SO ORDERED.
/s/ William E. Smith
William E. Smith
United States District Judge
Date: October 31, 2011
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