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Refined Metals Corp. v. NL Industries, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

September 25, 2018




         This is 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.

         For the reasons explained below, the motion is granted.


         The 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.

         In 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.

         In 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).

         In 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.

         “In 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.

         The 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 still.

         Refined 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 28, 2017.

         Standard of Decision

         A 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).

         I. The CERCLA Claims Are Precluded and Untimely (Counts I, II)

         Refined 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.

         A. Statutory Background

         We 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.

         A 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.

         CERCLA 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.

         “Section 107(a) defines four categories of [potentially responsible parties, or] PRPs, and makes them liable for, among other things:

‘(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with ...

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