68th Street Site Work Group v. Airgas, Inc. et al

Filing 886

MEMORANDUM OPINION. Signed by Judge Stephanie A. Gallagher on 5/10/2022. (dass, Deputy Clerk)

Case 1:20-cv-03385-SAG Document 886 Filed 05/10/22 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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68th STREET SITE WORK GROUP,
Plaintiff,
v.
7-ELEVEN, INC., et al.,
Defendants.
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Civil Case No.: SAG-20-3385

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MEMORANDUM OPINION
Plaintiff 68th Street Site Work Group (“Plaintiff”) has sued Defendants under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. § 9601 et seq. (“CERCLA”), for the recovery of costs incurred in response to the release
or threatened release of hazardous substances from the 68th Street Dump Superfund Alternative
Site (“68th Street Site,” or “Site”). Plaintiff also seeks a declaration of each Defendant’s liability
for future response costs to be incurred by Plaintiff (and its assignors) at the Site. On September
16, 2021, this Court issued a Memorandum Opinion and Order granting 31 of the original
Defendants’ motions to dismiss and/or motions for summary judgment. ECF 786. On November
2, 2021, Plaintiff filed a motion for leave to file an amended complaint. ECF 806. On January 26,
2022, this Court issued a Memorandum Opinion and Order denying Plaintiff’s motion. ECF 864.
Plaintiff chose not to seek further amendment and, instead, filed a motion for a certificate of
appealability. ECF 866. Because Plaintiff was, at once, trying to appeal from an interlocutory
order dismissing several Defendants and to pursue the operative complaint against the four
remaining Defendants, this Court denied Plaintiff’s motion. ECF 870. Now pending are three of

Case 1:20-cv-03385-SAG Document 886 Filed 05/10/22 Page 2 of 7

the four remaining Defendants’ motions for judgment on the pleadings. ECF 874, 875. 1 Those
Defendants have jointly moved for judgment based on the Plaintiff’s purported lack of standing
and the Complaint’s failure to allege arranger liability. ECF 874. Defendant Solo Cup Operating
Corporation (“Solo Cup”) (consistently, and according to Solo Cup, inaccurately referred to by
Plaintiff as Solo Cup Company) has separately moved based on Plaintiff’s failure to allege
successor liability as to Solo Cup. ECF 875. Plaintiff has opposed the motions, ECF 877, 878,
and the moving Defendants have filed replies. ECF 879, 880. This Court has considered these
filings, and their attached exhibits. No hearing is necessary. Loc. R. 105.6 (D. Md. 2021). For
the following reasons, Defendants’ joint motion for judgment on the pleadings will be granted,
and Solo Cup’s separate motion will be denied as moot.
I.

FACTUAL BACKGROUND
Plaintiff is an unincorporated association whose member entities have each assigned their

claims in this case to the Work Group. ECF 1 ¶ 28. Plaintiff alleges that Defendants in this case
are liable as potentially responsible parties (“PRPs”) for their generation and transportation, and/or
their arranging for transportation, of materials containing hazardous substances for disposal and/or
treatment at the 68th Street Site. ECF 1 ¶ 1.
The 68th Street Site is a mixed industrial, commercial, and residential area, encompassing
239 acres in the Rosedale neighborhood in Baltimore County, along the eastern border of
Baltimore City. ECF 1 ¶ 4. The Site is an aggregate of seven landfills, which operated within the
boundaries of what the United States Environmental Protection Agency (“EPA”) later designated

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On April 15, 2022, Plaintiff filed a motion for default judgment against CitiFinancial Credit
Company (“CitiFinancial”). ECF 881. CitiFinancial entered an appearance on May 5, 2022, ECF
882, and the parties have agreed to extend CitiFinancial’s deadline to respond to the motion for
default judgment until May 13, 2022.
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as five Management Areas (A, B, D, E, and F). ECF 1 ¶¶ 5-11. Waste disposal activities were
conducted at the Site from the 1950s through the early 1970s, and included the disposal of
municipal, industrial, and commercial wastes. ECF 1 ¶ 6. Among the entities operating permitted
landfills at the Site was Robb Tyler, Inc. (“Robb Tyler”). Management Area E of the 68th Street
Site was the “original Robb Tyler Landfill,” which was permitted in 1953 and closed by 1956.
ECF 1 ¶ 10. Robb Tyler was issued a refuse disposal permit for Management Area F in 1956, and
it operated the Island Landfill (a six-acre landfill within Management Area F) as a permitted
landfill from 1960-1969. ECF 1 ¶ 11.
After several years of emergency response actions and site inspections, EPA proposed the
68th Street Site to the National Priorities List (“NPL”) in 1999, and again in 2003. ECF 1 ¶¶ 1215; U.S. Env't Prot. Agency, Proposed National Priorities List (NPL) Sites – by State,
https://www.epa.gov/superfund/proposed-national-priorities-list-npl-sites-state#MD.

The Site

has not been finalized to the NPL, instead being evaluated under the Superfund Alternative Site
process. U.S. Env't Prot. Agency, Superfund Site: 68th Street Dump/Industrial Enterprises,
https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.Cleanup&id=0300
338. In April 2006, EPA entered into an Administrative Settlement Agreement and Order for
Remedial Investigation and Feasibility Study with the members of the 68th Street Site Work
Group. ECF 1 ¶ 16. Plaintiff alleges that it commenced the Investigation and Study shortly
thereafter, in June 2006. ECF 1 ¶ 17. Plaintiff's member entities completed the Remedial
Investigation in May 2012, and the Feasibility Study in March 2013, and EPA issued its final
Record of Decision for remedial actions at the Site in September 2013. ECF 1 ¶¶ 20-21.
In November 2017, this Court entered a Consent Decree for Remedial Design/Remedial
Action (“Consent Decree”) between EPA and the State of Maryland, on the one hand, and a group

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of defendants (the “Settling Defendants”) on the other hand. United States v. AAI Corp., Case No.
17-cv-2909-RDB, ECF 8 (D. Md. Nov. 29, 2017). The Settling Defendants included Settling
Performing Defendants—who are the members of the 68th Street Site Work Group—and other
Settling Non-Performing Defendants. ECF 1 ¶ 22. All of Plaintiff's individual members are
signatories to the Consent Decree. ECF 1 ¶ 29. Plaintiff itself (the 68th Street Site Work Group
entity) is not a signatory.
Plaintiff filed its initial Complaint in November 2020, naming more than 150 Defendants
(who were not Settling Defendants party to the Consent Decree) as potentially liable for more than
$4.8 million in past costs incurred by Plaintiff for response activities required by the Consent
Decree. The Complaint seeks contribution, in addition to a declaration of each Defendant's
liability for future response costs Plaintiff may incur. ECF 1 ¶ 1. Plaintiff alleges that each
Defendant it named, “by contract, agreement or otherwise arranged for disposal or treatment, or
arranged with a transporter for transport for disposal or treatment, of waste containing hazardous
substances at the 68th Street Site.” See, e.g., ECF 1 ¶ 30. Plaintiff alleges that each Defendant's
respective waste stream contained, at minimum, the following fourteen hazardous substances:
acetone, benzene, cadmium, dichloroethylene, lead, methyl ethyl ketone, methylene chloride,
perchloroethylene, toluene, trichloroethane, trichloroethylene, vinyl chloride, xylene, and zinc. In
instances where the only waste stream alleged is “general office waste”—such as with respect to
Defendant Vornado Realty Trust (“Vornado”)—those fourteen substances make up the entirety of
Plaintiff's allegations. See, e.g., ECF 1 ¶ 347. For certain other Defendants, however, Plaintiff
alleges that additional hazardous substances were disposed, including arsenic, barium, chromium,
copper, dichlorobenzene, ethyl benzene, manganese, mercury, and/or nickel. See, e.g., ECF 1 ¶¶
217; 691. Relevant here, Plaintiff alleges that Solo Cup’s and ViacomCBS’s (“Viacom”) waste

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contained copper, ECF 1 ¶¶ 1013, 1129, and that Solo Cup’s waste contained mercury, ECF 1 ¶
1013.
II.

LEGAL STANDARD
“A Rule 12(c) motion for judgment on the pleadings is decided under the same standard as

a motion to dismiss under Rule 12(b)(6).” Bierman Fam. Farm, LLC v. United Farm Fam. Ins.
Co., 265 F. Supp. 3d 633, 637 n.5 (D. Md. 2017). In assessing such a motion, then, the court must
“construe the facts and reasonable inferences derived therefrom in the light most favorable to the
plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). The factual allegations of
the complaint, assumed to be true, “must be enough to raise a right to relief above the speculative
level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The plaintiff’s obligation is to
show the “‘grounds’ of his ‘entitle[ment] to relief,’” offering “more than labels and conclusions.”
Id. (alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)). It is not sufficient that the well-pleaded
facts suggest “the mere possibility” of liability. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Rather, “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to
relief that is plausible on its face,’” meaning that the court could “draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678 (quoting Twombly, 550 U.S. at
570).
III.

ANALYSIS
There are two motions for judgment on the pleadings at issue. First, Defendants Solo Cup,

Viacom, and Vornado move for judgment on the pleadings and argue that “(i) Plaintiff lacks
standing to bring a complaint under the requirements of CERCLA and (ii) Plaintiff has failed to
adequately plead arranger liability under CERCLA.” ECF 874 at 1. Second, Solo Cup has

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separately moved for judgment on the pleadings based on its argument that the Complaint fails to
plead successor liability against it. ECF 875. The two motions will be addressed in turn.
This Court has already issued two opinions in this case addressing why, in this Court’s
view, Plaintiff’s allegations fail to state a claim based on arranger liability. ECF 786 at 39-46;
ECF 864 at 5-7. The allegations against the moving Defendants here are, in all relevant respects,
identical to the allegations against those Defendants that filed motions to dismiss on the basis of
arranger liability earlier in this litigation. ECF 786 at 39. As this Court previously found, the
Complaint merely alleges a “threadbare recital[] of the elements” of § 1079(a)(3) arranger liability
under CERCLA. Id. (quoting Iqbal, 556 U.S. at 678). This Court also found that the Complaint
fails to allege facts sufficient to allege that any Defendant acted with the requisite level of intent
such that it could be held liable under a theory of arranger liability. See id. at 39-46. Because
there are no meaningful differences between Plaintiff’s allegations against the moving Defendants
here and the allegations this Court construed in its September 16, 2021 opinion, ECF 786, this
Court finds, for the same reasons, that the Complaint fails to state a claim of arranger liability
against any of the three moving Defendants. Id.
Defendants also argue that Plaintiff does not have standing to assert any CERCLA claims
on behalf of its members. While this Court previously found that Plaintiff is not the real party in
interest in this case, it did not address whether Plaintiff has organizational standing to assert claims
on behalf of its member entities. Id. at 57 n.15. This Court again declined to address that issue in
its opinion on Plaintiff’s motion for leave to file an amended complaint. ECF 864 at 7. Similarly,
because this Court’s decision here is based on Plaintiff’s insufficient allegations of arranger
liability, the separate questions of whether Plaintiff is the real party in interest and whether Plaintiff

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has standing to assert CERCLA claims are irrelevant to this Court’s adjudication of the motions at
issue.
Finally, this Court need not address Solo Cup’s individual motion that the Complaint fails
to allege that it is the successor to two entities that allegedly arranged for the disposal of waste at
the Site. Because this Court holds that the Complaint fails to state a claim for arranger liability
against any of the moving Defendants, including Solo Cup, its separate motion on the basis of
successor liability will be denied as moot.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ joint motion for judgment on the pleadings, ECF

874, will be granted, and Solo Cup’s separate motion for judgment on the pleadings, ECF 875,
will be denied. A separate order follows.

Dated: May 10, 2022

/s/
Stephanie A. Gallagher
United States District Judge

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