ASARCO LLC v. NL Industries, Inc. et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant Anschutz Mining Corporation's Motion to Dismiss Plaintiff's Second Amended Complaint 80 is DENIED. Signed by District Judge John A. Ross on 9/28/12. (LAH)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NL INDUSTRIES, INC., et al.,
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Anschutz Mining Corporation’s Motion to
Dismiss Plaintiff’s Second Amended Complaint [ECF No. 80]. The Motion is fully briefed and
ready for disposition. On August 23, 2012, the Court heard oral argument on the motion to
dismiss.1 For the following reasons, the motion will be denied.
This is a civil action brought by Asarco LLC (“Asarco”) under the Comprehensive
Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601, et
seq., for contribution and cost recovery against Defendants as “potentially responsible parties”
(PRP). Asarco paid approximately $80 million to settle its CERCLA-related liability resulting
from its historic smelting operations in the Southeast Missouri Mining District (“SEMO”) with
the United States and the State of Missouri, which included response costs and natural resource
The Court also heard oral argument on pending motions for summary judgment and
motions to stay filed by Defendants NL Industries, Inc. [ECF Nos. 90, 98, ], Union Pacific
Railroad Company [ECF No. 101], St. Francois County Environmental Corporation [ECF Nos.
104, 107], and Delta Asphalt, Inc. [ECF Nos. 108, 110], which motions will be addressed in a
subsequent Memorandum and Order.
damages. With respect to the allegations against Defendant Anschutz Mining Corporation
(“AMC”), this Court found Asarco’s First Amended Complaint did not give AMC fair notice of
the CERCLA claim and the grounds on which it was based. Asarco filed a Second Amended
Complaint alleging a claim for contribution against AMC based on AMC’s alleged ownership and
operation of the Madison Mine, located in the same county as the mine owned by Asarco, the
Catherine Mine, and a related site known as the Little Francis River sub-site (collectively the
“Catherine Mine”). AMC argues in its motion to dismiss that Asarco lacks standing to sue and
that this Court accordingly lacks subject matter jurisdiction over Asarco’s claim against AMC.
AMC also argues that Asarco’s Second Amended Complaint should be dismissed because it does
not state a claim.
A. Subject Matter Jurisdiction
A motion to dismiss for lack of subject matter jurisdiction may be brought at any time
pursuant to Fed.R.Civ.P. 12(h)(3). A 12(h)(3) motion to dismiss is evaluated under the same
standards as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1). The Eighth Circuit has held
that “[w]hen a party seeks to dismiss a suit for lack of standing, [the court] ‘must accept as true all
material allegations of the complaint, and must construe the complaint in favor of the
complaining party.’ ” United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 834 (8th Cir.
2009) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)).
B. Failure to State a Claim
When ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court
treats all well pled facts as true and grants all reasonable inferences therefrom in favor of the non-
moving party. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007). The Court does not,
however, accept as true any allegation that is a legal conclusion. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949–50 (2009). The complaint must have “‘a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief,’ in order to ‘give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.’” Twombly, 550 U.S. at 555 (citations
omitted); see also Gregory v. Dillard's Inc., 565 F.3d 464, 473 (8th Cir. 2009). While detailed
factual allegations are not necessary, a complaint that contains “labels and conclusions,” and “a
formulaic recitation of the elements of a cause of action” is not sufficient. Twombly, 550 U.S. at
555; accord Iqbal, 129 S.Ct. at 1949. The complaint must set forth “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 570; accord Iqbal, 129 S.Ct. at 1949;
C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629–30 (8th Cir. 2010). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct.
at 1949; Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009). In considering a
motion to dismiss under Fed.R.Civ.P. 12(b)(6), the issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in support of the claim.
BancorpSouth Bank v. Environmental Operations, Inc., 2011 WL 4815389, *1 (E.D.Mo. October
11, 2011) (citing Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
There is no heightened standard for specificity of pleadings with respect to CERCLA
claims. See Lone Star Indus., Inc. v. Horman Family Trust, 960 F.2d 917 (10th Cir. 1992); United
States v. Aceto Agric. Chems. Corp., 872 F.2d 1373 (8th Cir. 1989); Ascon Properties, Inc. v.
Mobil Oil Company, 866 F.2d 1149 (9th Cir. 1989); Warwick Administrative Group v. Avon
Products, Inc., 820 F.Supp. 116 (S.D. N.Y. 1993).
In support of its motion, AMC first asserts that Asarco lacks standing to pursue its
contribution claim against AMC because it failed to preserve this claim in its bankruptcy plan.
(Memorandum in Support, Doc. No. 81, pp. 3-6). AMC refers to the schedule of preserved
litigation claims filed in Asarco’s bankruptcy plan, wherein Asarco “reserve[d] . . . all rights and
interests in actions and/or claims against third parties (“potentially responsible parties” or
“PRP”), for indemnity and contribution for environmental damages, harm or injury, which PRP
claims have not been discharged or settled in this bankruptcy.” (Doc. No. 81-4, ¶ 9).2 AMC
contends this language did not “specifically and unequivocally” reserve any claim against it in
accordance with In re MPF Holdings U.S., LLC, 443 B.R. 736 (Bankr. S.D. Tex 2011). Further,
the only claim against AMC referenced on Asarco’s list of preserved PRP claims is in connection
with “SEMO Sites - Madison County/Catherine Mine.” (Id. at p. 5) AMC argues Asarco has not
alleged any “nexus” between AMC and the Catherine Mine, and does not purport to state a claim
against AMC as a PRP at the Catherine Mine. (Memorandum in Support, p.5)
As a threshold matter, the parties disagree as to what law applies for determining whether
Asarco has standing to bring its action in this Court. AMC contends that because Asarco filed for
AMC has attached this filing from Asarco’s bankruptcy proceedings as Exhibit 4 to its
motion. (Do. No. 80-4). In considering a motion to dismiss, the Court may sometimes consider
materials outside the pleadings, such as materials that are “necessarily embraced by the
pleadings” and exhibits attached to the complaint. Sewell v. Vatterott Educational Centers, Inc.,
2011 WL 2838112 (E.D. Mo. July 18, 2011)(citations omitted). Documents attached to a motion
to dismiss are considered part of the pleadings if they are referred to in plaintiff’s complaint and
central to plaintiff’s claim. Venture Assoc’s Corp. v. Zenith Data Sys., 987 F.2d 429, 431 (7th
bankruptcy in the Southern District of Texas (SAC, ¶¶ 12-15), the law of the Fifth Circuit and the
Southern District of Texas controls, citing MPF Holdings. Guided by the Fifth Circuit’s decision
in In re United Operating, LLC, 540 F.3d 351, 355 (5th Cir. 2008)3, the MPF court held that to be
“specific’ and “unequivocal,” a plan must state that a specific cause of action will be brought
against a specific defendant. Id. at 744-45.
Asarco contends that general reservations are sufficient to preserve claims in bankruptcy,
relying on the Eighth Circuit’s decision in Harstad v. First American Bank, 39 F.3d 898 (8th Cir.
1994). (Memorandum in Response, p. 4). In Harstad, the reorganized debtors argued their plan
preserved their cause of action by virtue of the following provision:
The Court will retain jurisdiction until this Plan has been fully consummated for
the following purposes: . . . determination of all causes of action between Debtors
and any other party, including but not limited to any right of Debtors to recover assets pursuant to the prov
Id. at 902. The court rejected this generic reservation provision and dismissed the complaint for
lack of standing, noting that a party wishing to retain its power to enforce claims pursuant to
§1123(b)(3) could do so with “straightforward language.” Id. Asarco relies on Harstad because
the court apparently stopped short of requiring the plan to detail the facts of each claim in order to
preserve them. (Memorandum in Response, p. 5).
At this stage of the proceedings for purposes of the Motion to Dismiss, the Court need not
determine whether Eighth Circuit law or Fifth Circuit law applies. Assuming the language in
Asarco’s bankruptcy plan is sufficient to preserve a claim against AMC, the Court finds Asarco
In In re United Operating, the Fifth Circuit held that for a debtor to preserve a claim in
bankruptcy, the plan must expressly retain the right to pursue that action, and the retention
language must be “specific and unequivocal.” 540 F.3d at 335. If the plan does not make an
effective reservation of the claim, the debtor has no standing to pursue it.
has asserted facts that plausibly state a claim against AMC as a PRP at the Catherine Mine.
Asarco alleges that AMC’s property and/or activities around the Madison Mine site in Madison
County caused hazardous substances to be located at or near SEMO (SAC, ¶¶ 8, 23), which
includes the Catherine Mine, also in Madison County. (SAC, ¶ 11). Asarco’s list of preserved
PRP claims explicitly identifies by name “Anschutz Mining Corporation” as a “Lead Defendant”
with respect to “SEMO Sites – Madison County / Catherine Mine” (and certain other SEMO
sites). (Doc. 80-4, p. 5). The motion will be denied on this point.
B. Failure to State a Claim
AMC argues that Asarco’s claim must also be dismissed because it fails to allege a
plausible theory that AMC was an “owner,” “operator,” or “arranger” under CERCLA.
(Memorandum in Support, pp. 6). To state a claim under CERCLA, a plaintiff must allege that: (i)
the site in question is a “facility;” (ii) there was a “release” or “threatened release” of a
“hazardous substance” at the facility; (iii) the release or threatened release caused the plaintiff to
incur response costs; and (iv) the defendant falls under one of four categories of “covered
persons.” Laidlaw Waste Systems, Inc. v. Mallinckrodt, Inc., 925 F.Supp. 624, 629 (E.D. Mo.
1996) (citing Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 934 (8th Cir. 1995). See also
Aceto, 872 F.2d at 1378-79 (citing U.S. v. Bliss, 667 F.Supp. 1298, 1304 (E.D. Mo. 1987)). A
covered person under CERCLA’s liability provisions includes an “owner,” “operator,” and
“arranger.” 42 U.S.C. § 9607(a)(1)-(4); Laidlaw Waste, 925 F.Supp. at 629. A party cannot be
liable for contribution under § 113(f), 42 U.S.C. § 9613(f)(1), unless it is a responsible party as
defined under § 9607.
Asarco’s factual allegations regarding AMC are that AMC is a Colorado corporation that
“has conducted mining, metals processing, storage, transport and/or related operations through
facilities in or near SEMO,” and is an “owner,” “operator,” and/or “arranger” of a “facility”
pursuant to Sections 101(9) and (20) and 107 (a)(2) of CERCLA, 42 USC §§ 9601(9) and (20)
and 9607(a)(1) and (2) (SAC, ¶¶ 8, 23). Asarco alleges that AMC owns what is known as the
Madison Mine or Buckeye Mine in Madison County, Missouri and that during operation of the
Madison mine, mine-related wastes accumulated around the site. (Id.) Asarco states the Madison
Mine site consists of five main tailings piles that cover approximately 200 acres, several ponds,
and remnants of a mill, smelter, and refinery complex. (Id.) Two intermittent creeks also flow
through the property, which contribute to other surface waters in SEMO, and are pathways for
disposal or releases of metals through ongoing erosion. (Id.) The EPA has recognized that tailings
from the mine waste piles in this region are easily transported and released to surface water
bodies and ambient air via wind and water erosion. (Id.). Asarco further alleges that “AMC or its
corporate predecessors thus own or operate or have owned or operated manufacturing, storage,
transport and/or related operations of or for hazardous substances through facilities in or near
SEMO,” and that “AMC is responsible for multiple releases of hazardous substances at or near
SEMO, which hazardous substances have come to be located at SEMO, and for which Asarco has
paid for the remediation of such hazardous substances through a judicially approved settlement.”
AMC argues these new allegations add detail, not substance, to Asarco’s claim that AMC
was an “owner” of a “facility.” (Memorandum in Support, p. 6). Specifically, the claim referenced
in Asarco’s bankruptcy schedule is a purported claim against AMC as a PRP at the Catherine
Mine, yet Asarco has not alleged a “plausible nexus” between AMC and the Catherine Mine. (Id.,
p. 7). Asarco also fails to allege facts to support a claim that AMC was an “operator,” to-wit, that
AMC had the authority to determine whether and how hazardous wastes would be disposed of, or
that AMC actually exercised that authority. See United States v. Gurley, 43 F.3d 1188, 1193 (8th
Cir. 1994). (Memorandum in Support, pp. 7-8). Finally, AMC argues Asarco has not alleged facts
demonstrating AMC’s specific intent to arrange for the disposal of hazardous substances at the
sites involved in Asarco’s settlement sufficient to state a claim that AMC was an “arranger” under
CERCLA. (Memorandum in Support, p.9)
As stated above, a heightened pleading standard does not apply to CERCLA cases. Thus,
the standard set forth in Twombly and Iqbal applies to Asarco’s claims. See Del–Ray Battery Co.
v. Douglas Battery Co., 635 F.3d 725, 729 (5th Cir.2011) (reviewing defendant's motion to
dismiss plaintiff's CERCLA claim by using Twombly's pleading requirements); City of Colton v.
Am. Promotional Events, Inc., 2011 WL 486577 (C.D.Cal. Feb.4, 2011) (applying Twombly to
defendant's motion to dismiss plaintiff's CERCLA action). The issue for the Court’s
determination on a motion to dismiss is whether Asarco’s complaint gives AMC fair notice of the
CERCLA claim and the grounds on which it is based. The Court finds that it does.
In its Second Amended Complaint, Asarco alleges that “[t]wo intermittent creeks that flow
through the [Madison Mine] . . . are pathways for disposal or releases of metals” at SEMO. (SAC.,
¶ 8.) Asarco also alleges that “tailings from the [Madison Mine] in this region are easily
transported and released to surface water bodies and ambient air via wind and water erosion.” (Id.)
Through this process, hazardous substances “have come to be located at SEMO.” (Id.) Accepting
these factual allegations as true, the Court finds Asarco has alleged sufficient facts to support a
claim of owner liability against AMC. All that is required for owner liability under CERCLA in
this circumstance is that the party owned a facility that contributed to the contamination at SEMO.
See 42 U.S.C. §§ 9607(a)(1), (2); U.S. v. Vertac Chem. Corp., 453 F.3d 1031, 1043-1044 (8th Cir.
2006) (disposal includes placing hazardous waste in a manner that allows the waste to enter the
environment). The Madison Mine qualifies as a “facility” within the meaning of CERCLA because
it is a “site or area where a hazardous substance has been deposited, stored, disposed of, or placed,
or otherwise come to be located.” 42 U.S.C. § 9601(9) (SAC, ¶ 25). AMC does not dispute that it
(or its corporate predecessors) owned the Madison Mine. The Second Amended Complaint further
alleges that contamination from the Madison Mine migrated to other locations within Madison
County and Little St. Francis River. Thus, AMC’s motion to dismiss on this point will be denied.
With respect to Asarco’s claim for operator liability, Asarco alleges AMC “operated
manufacturing, storage, transport and/or related operations” at the Madison Mine. (SAC, ¶¶ 8, 23).
In the same paragraph, Asarco also alleges that “during operation of the Madison Mine,
mine-related wastes accumulated around the site.” (Id.) Reading the Second Amended Complaint
as a whole and taking all reasonable inferences in favor of Asarco, the allegation that AMC
operated the Madison Mine and controlled the depositing of hazardous substances on that site is
clear. This District recently found allegations of similar specificity were sufficient to state a claim
for operator liability. See BancorpSouth, 2011 WL 4815389, at *2 (allegations that all defendants
knew, since at least 2001, that there were disposed hazardous materials on the property, and that
defendants engaged in deliberate disturbance, unearthing, spilling, moving and re-releasing of the
enumerated hazardous materials into the property, were sufficient to put the defendant on notice
that plaintiff was seeking recovery from it for its involvement in the management and control of a
particular site). The Court finds Asarco has put AMC “on notice” of its claim that operation of the
Madison Mine caused contamination. Therefore, AMC’s motion to dismiss on this point will be
With respect to Asarco’s claim for arranger liability, AMC argues its alleged awareness
that substances could or did in fact migrate to the Catherine Mine does not support an inference
that it intended such a disposal to occur. (Reply Memorandum, p. 9).The Eighth Circuit has held
“that arranger liability . . . does not impose [a] specific intent requirement[.]” U.S. v. Mallinckrodt,
Inc., 343 F.Supp.2d 809, 817 (E.D. Mo. 2004) (citing U.S. v. TIC Inv. Corp., 68 F.3d 1082, 1089
(8th Cir. 1995)). However, “a finding of arranger liability requires some level of actual
participation in, or exercise of control over, activities that are causally connected to, or have some
nexus with, the arrangement for disposal of hazardous substances or the off-site disposal itself.” Id.
See BancorpSouth, 2011 WL 4815389, holding that a party’s longstanding knowledge of waste
disposal practices and deliberate continuation of them is sufficient to state an arranger liability
Asarco alleges AMC “operated” the Madison Mine and “is responsible” for the release of
various hazardous substances at SEMO through the creation of the tailings piles. (SAC, ¶¶ 8, 23,
32, 34.) Because a liberal judicial interpretation of arranger liability is consistent with CERCLA’s
remedial scheme, see Aceto, 872 F.2d at 1380 (citations omitted), the Court finds Asarco has
stated a claim for arranger liability sufficient to withstand a motion to dismiss..
AMC also asserts Asarco fails to state a plausible claim for contribution because it paid a
fair settlement of its own liability. (Memorandum in Support, p. 9). Asarco responds that nothing
in the SEMO settlement, the Motion to Approve SEMO Settlement, or the Robbins Proffer
establishes as an indisputable fact that Asarco’s $80 million settlement payment represented only
Asarco’s allocable share of liability at SEMO. As such, Asarco argues the extent of its share of
liability at SEMO is, at best, a disputed fact, which cannot be resolved on a motion to dismiss.
(Memorandum in Response, Doc. No. 86, pp. 13-14). In reply, AMC points to Asarco’s own
admissions in the Second Amended Complaint, which the Court must take as true in ruling on a
motion to dismiss, to-wit:
This lawsuit seeks contribution for Asarco’s payment of “approximately $80 million to
settle all of its CERCLA-related liability at SEMO, including response costs and natural
resource damages.” (SAC, ¶ 1) (emphasis added).
“Asarco has taken responsibility for the clean-up of all of its known liabilities for any
‘releases’ under CERCLA Section 107(a), et seq., 42 U.S.C. § 9607(a), et seq., for
Asarco’s historic smelting operations at SEMO, and Asarco has settled all of its liability at
SEMO with the United States and the State of Missouri.” (SAC, ¶ 4) (emphasis added).
The settlement approved by the bankruptcy court “resolv[ed] its CERCLA liabilities . . . .”
(SAC, ¶ 13) (emphasis added).
Asarco’s bankruptcy plan provided that “Asarco would make full payment on its
environmental claims as approved by the Bankruptcy Court . . . .” (SAC, ¶ 15) (emphasis
“Asarco has settled all of its CERCLA-related liability at SEMO.” (SAC, ¶ 17)
In considering a motion to dismiss, however, “the complaint should be read as a whole, not parsed
piece by piece to determine whether each allegation, in isolation, is plausible.” Braden v. Wal-
Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). Here, the Second Amended Complaint also
alleges “Asarco has incurred approximately $80,000,000 for response action . . . and for natural
resource damages” and that “[t]his amount represents more than [Asarco’s] allocable share of costs
related to its releases or disposal of hazardous substances at SEMO.” (SAC, ¶ 36).
Again, it is not the function of the Court on a motion to dismiss as opposed to a motion for
summary judgment to determine whether AMC is entitled to judgment as a matter of law. The
issue is not whether plaintiffs will ultimately prevail, but rather whether they are entitled to offer
evidence in support of their claims. Aceto, 872 F.2d at 1376 (citations omitted). “[I]t is only in the
‘unusual case’ where the complaint on its face reveals some insuperable bar to relief that a
dismissal under Rule 12(b)(6) is warranted.” Id.
IT IS HEREBY ORDERED that Defendant Anschutz Mining Corporation’s Motion to
Dismiss Plaintiff’s Second Amended Complaint  is DENIED.
Dated this 28th day of September, 2012.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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