United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON DEFENDANT'S MOTION TO DISMISS COMPLAINT
EVANS BARKER, JUDGE
an action for cost recovery and contribution under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et
seq., as amended by the Superfund Amendments and
Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100
Stat. 1613, brought by Refined Metals
(“Refined”), a Delaware corporation, against NL
Industries (“NL”), a New Jersey corporation.
There are also state claims for common law indemnity and cost
recovery under Indiana's Environmental Legal Actions
statute (“ELA Statute”), Ind. Code ch. 13-30-9.
NL has moved to dismiss the complaint, see Fed. R.
Civ. P. 12(b)(6), chiefly on timeliness grounds.
reasons explained below, the motion is granted.
complaint alleges as follows. From 1968 until 1980, NL
operated a lead reclaiming facility (“the
Facility”) at a site in Marion County, Indiana
(“the Property”). In 1980, NL sold the Property
and the Facility to Refined, which operated the Facility
until 1995 and continues to own the Property.
1990, the United States government, on behalf of the U.S.
Environmental Protection Agency (EPA), filed a complaint in
this Court before the undersigned judge seeking remediation
of ground- and air-pollution caused by the Facility's
smelting operations. The Indiana Department of Environmental
Management (IDEM) intervened as a party plaintiff.
1998, Refined, the United States, and IDEM, “having
recognized that settlement of this matter [was] in the public
interest, ” tendered a proposed consent decree
(“the 1998 Consent Decree”) “in order to
compromise and settle the claims stated in the Complaint
against [Refined] without further litigation[.]” Dkt.
12 Ex. A, at 4; also No. IP90-C-2077-B/S, Dkt. 529.
We consider here the 1998 Consent Decree in connection with
NL's Rule 12(b)(6) motion without converting it to a
motion for summary judgment, see Fed. R. Civ. P.
12(d), because the 1998 Consent Decree is referred to in the
complaint and central to Refined's claims, see
Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013),
and because we may take judicial notice of our own docket.
See id.; Griffin v. United States, 109 F.3d
1217, 1219 n.1 (7th Cir. 1997).
parts relevant here, the 1998 Consent Decree provided as
follows: Among others, one of its purposes was for Refined
“to recommend a final corrective measure for [the
Facility] necessary to protect human health and the
environment” and to “perform the final corrective
measure as required by [EPA][.]” Dkt. 12 Ex. A, at
13. Refined was not required to and did not admit liability.
But Refined was required to close the Facility; investigate,
propose, and implement a plan of remediation for the
Property; and pay a $210, 000 fine.
consideration of the actions that [were to be] performed and
the payments that [were to be] made by [Refined] . . .,
” the United States “covenant[ed] not to sue or
to take administration action against [Refined]” under
applicable provisions of the Resource Conservation and
Recovery Act of 1976 (RCRA), 42 U.S.C. § 6901 et
seq., and the Clean Air Act of 1963 (CAA), 42 U.S.C.
§ 7401 et seq. Dkt. 12 Ex. A, at 37. IDEM
“covenant[ed] not to sue or to take administrative
action against [Refined] for violations alleged in
[Indiana's] Complaint.” Id. at 37-38. The
United States “expressly reserve[d]” its rights
to proceed against Refined under CERCLA, and IDEM
“expressly reserve[d]” its rights to proceed
under Indiana's superfund-type law, now codified at Ind.
Code ch. 13-25-4.
1998 Consent Decree was to terminate once Refined and EPA
concurred that Refined had fully complied with its terms and
filed a joint motion for termination in this Court. No.
motion for termination having been filed, see No.
IP90-C-2077-B/S, Dkt., the decree appears to be in full force
submitted the results of its initial investigation to EPA in
2000. The final investigation report was submitted in 2003. A
proposed remedy for the Property was approved by EPA
following public notice and comment in 2009. The final
remedial design was approved by EPA in 2014. “Refined
began the onsite remedy implementation on August 4, 2014. The
work has been completed, subject to final approval from
EPA.” Compl. ¶ 27. This action was filed on July
motion to dismiss for failure to state a claim on which
relief can be granted tests the legal sufficiency of the
complaint. McReynolds v. Merrill Lynch & Co.,
Inc., 694 F.3d 873, 879 n.4 (7th Cir. 2012). A complaint
is sufficient where it gives a short, plain statement showing
the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). The
complaint must raise the right to relief above a speculative
level by pleading claims that are plausible on their face,
with all factual allegations taken as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). Though
statutes of limitations are affirmative defenses which the
complaint need not anticipate or plead around, an action may
be dismissed as untimely if the pleadings themselves
“set forth everything necessary to satisfy the
affirmative defense.” Chi. Bldg. Design, P.C. v.
Mongolian House, Inc., 770 F.3d 610, 614 (7th Cir. 2014)
(internal quotation marks, citation omitted).
The CERCLA Claims Are Precluded and Untimely (Counts I,
seeks to recover here against NL under CERCLA Sections 107(a)
and 113(f). We conclude that only the latter section is
available to it, but even that claim is time-barred. The
CERCLA claims must therefore be dismissed with prejudice.
begin with an overview of the applicable statutory
provisions. “Response” is defined at 42 U.S.C.
§ 9601(25) as “removal, remedy, and remedial
action[, ] . . . includ[ing] enforcement activities related
thereto.” “Remedy” and “remedial
action” are defined at 42 U.S.C. § 9601(24) as
those actions consistent with permanent remedy taken instead
of or in addition to removal actions in the event of a
release or threatened release of a hazardous substance into
the environment, to prevent or minimize the release of
hazardous substances so that they do not migrate to cause
substantial danger to present or future public health or
welfare or the environment.
nonexclusive list of “remedies” follows. In
contrast to the permanency of a CERCLA “remedy, ”
“removal” is defined at 42 U.S.C. § 9601(23)
as an immediate temporary or emergency measure. Under CERCLA,
then, “removals” are short-term measures,
“remedies” are long-term measures, and
“responses” include both.
provides two distinct mechanisms for the recoupment of
response costs at Sections 107(a) and 113(f), respectively.
United States v. Atl. Research Corp., 551 U.S. 128,
131 (2007). The actions under these sections are mutually
exclusive. NCR Corp. v. George A. Whiting Paper Co.,
768 F.3d 682, 691 (7th Cir. 2014); Bernstein v.
Bankert, 733 F.3d 190, 206 (7th Cir. 2013). If the
statutory trigger for a Section 113(f) action is met, the
plaintiff must proceed under that section and cannot proceed
under Section 107(a). NCR, 768 F.3d at 690-91;
Bernstein, 733 F.3d at 204-06. The actions
“are governed by different statutes of limitation, and
we must decide under which section [Refined's] CERCLA
claim falls before determining whether it is
time-barred.” Bernstein, 733 F.3d at 200.
107(a) defines four categories of [potentially responsible
parties, or] PRPs, and makes them liable for, among other
‘(A) all costs of removal or remedial action incurred
by the United States Government or a State or an Indian tribe
not inconsistent with ...