Pharmacia LLC et al v. Ameren Corporation et al

Filing 42

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendant's motion to dismiss count 4 of plaintiffs' first amended complaint [# 24 ] is granted. Signed by District Judge Catherine D. Perry on May 10, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PHARMACIA LLC, et al.,

)
)
Plaintiffs,
)
)
vs.
)
)
UNION ELECTRIC COMPANY, et al., )
)
Defendants.
)

Case No. 4:12CV2275 CDP

MEMORANDUM AND ORDER
Plaintiffs Pharmacia LLC, Mallinckrodt LLC, The Goodyear Tire & Rubber
Company, and Findett Real Estate Corporation, brought this action against the
Union Electric Company, now known as Ameren Missouri Company, seeking to
recover the costs plaintiffs incurred in identifying and responding to hazardous
chemicals allegedly released by defendants. Plaintiff’s first amended complaint
includes claims under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA) and a Missouri common law
claim for unjust enrichment. Ameren has moved to dismiss the unjust enrichment
claim, arguing it is preempted by CERCLA and deficient under the applicable state
law. Because I find that the unjust enrichment claim is preempted by CERCLA §
113, I will grant the motion.

Background
Since at least 1988, plaintiffs have incurred costs performing response
actions to address alleged contamination from the Hayford Bridge Road
Groundwater Superfund Site. In 2001, the Environmental Protection Agency
issued an order requiring plaintiffs to conduct a remedial investigation into the
nature and extent of off-site groundwater contamination from the Hayford Bridge
Site. In 2007, plaintiffs entered a consent decree with the EPA requiring plaintiffs
to conduct quarterly groundwater monitoring. Plaintiffs found chlorinated volatile
organic compounds (CVOCs), including cis-DCE, in and around the Elm Point
Wellfield, which supplies drinking water to the City of St. Charles. Accordingly,
the EPA demanded that plaintiffs undertake an Emergency Response Action to
delineate the groundwater contamination.
Defendant Ameren has property approximately three thousand feet from the
Hayford Bridge Site, on which it operates an electrical power distribution
substation. Plaintiffs’ testing revealed the presence of various contaminants on and
adjacent to Ameren’s property, consistent with the contaminants found at or near
the Elm Point Wellfield. Plaintiffs identified a “Northern Plume” along Huster
Road north of Ameren’s property, and allege that Ameren’s property is the sole
source of the Northern Plume. On June 5, 2012, the EPA notified Ameren that its
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property was contributing to the Northern Plume, but Ameren took no action in
response. On September 23, 2012, plaintiffs entered into an Administrative
Settlement Agreement and Order on Consent with the EPA requiring plaintiffs to
incur response costs for contamination that included the Northern Plume.
Plaintiffs filed this action, bringing claims for contribution and a declaratory
judgment under CERCLA § 113 (42 U.S.C. § 9613), cost recovery under
CERCLA § 107 (42 U.S.C. § 9607), and unjust enrichment under Missouri
common law. Now before me is Ameren’s motion to dismiss the unjust
enrichment claim (Count 4), arguing that the claim is preempted by CERCLA and
that it fails as a matter of law because plaintiffs had an independent legal duty to
perform the response actions.
Discussion
A defendant may move to dismiss a claim Afor failure to state a claim upon
which relief can be granted@ under Federal Rule of Civil Procedure 12(b)(6). The
purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency
of the complaint. When considering a 12(b)(6) motion, the court considers the
factual allegations of a complaint as true and construes those allegations in favor of
the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326 (1989). To avoid dismissal
for failure to state a claim, the complaint must contain Aa short and plain statement
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of the claim showing that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2).
Although Aspecific facts are not necessary,@ the plaintiff must allege facts sufficient
to Agive fair notice of what the . . . claim is and the grounds upon which it rests.@
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). A plaintiff=s obligation to provide the Agrounds@ of his
Aentitlement to relief@ requires more than labels and conclusions. Twombly, 550
U.S. at 545.
Pursuant to the Supremacy Clause of the Constitution, Congress can preempt
state law. U.S. Const. art. VI, cl. 2; Crosby v. Nat’l Foreign Trade Council, 530
U.S. 363, 372 (2000). Preemption can either be explicit or implicit. Id. Implicit
preemption applies if (1) Congress intended the federal law to exclusively “occupy
the field,” or (2) it is impossible for a private party to comply with both sets of law
or the state law stands as an obstacle to the purpose or objectives of the federal
law. Id. at 372-73. While it has not been addressed by the Eighth Circuit, some
other Circuits have found that “state law contribution claims for CERCLA
response costs conflict with CERCLA contribution claims and therefore are
preempted.” Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112,
138 (2d Cir. 2010); see also In re Reading Co., 115 F.3d 1111, 1117 (3d Cir. 1997)
(abrogated on other grounds).
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Two CERCLA provisions “allow private parties to recover expenses
associated with cleaning up contaminated sites.” Morrison Enters., LLC v. Dravo
Corp., 638 F.3d 594, 602 (8th Cir. 2011) (quoting United States v. Atl. Research
Corp., 551 U.S. 128, 131 (2007)). “Section 107(a)(4)(B) permits a private party
who has voluntarily incurred costs . . . to recover necessary response costs from
another liable party.” Id. Section 113(f)(3)(B) authorizes “[a] person who has
resolved its liability to the United States or a State for some or all of a response
action or for some or all of the costs of such action in an administrative or
judicially approved settlement to seek contribution from any person who has not so
resolved its liability.” Id. (internal quotations omitted). Plaintiffs have brought
claims against Ameren under both §§ 107(a) and 113(f).
Other courts have held that §113(f) preempts state common-law claims such
as claims for contribution and unjust enrichment. Section 113(f) was intended to
“standardize the statutory right of contribution” and “provide the only contribution
avenue for parties with response costs under CERCLA.” Niagara, 596 F.3d at
138. See also, Reading, 115 F.3d at 1117; Hidden Lakes Dev., LP v. Alina Health
Sys., No. 02-406 JNE, 2004 WL 2203406, at *9 (D. Minn. Sep. 27, 2004); Lenox
Inc. v. Reuben Smith Rubbish Removal, 91 F. Supp. 2d 743, 753 (D.N.J. 2000).
Accordingly, state law contribution claims would stand as an obstacle to the
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purpose of CERCLA § 113. Id. Although the Eighth Circuit has been silent on
this question, I agree with the Second and Third Circuits. Because section 113(f)
established a standardized contribution scheme for costs arising from settlement
with the EPA, this unjust enrichment claim arising from the same settlement action
would “stand as an obstacle to the purpose or objectives of the federal law.”
Plaintiffs argue that dismissal of the claim is premature, and that the Federal
Rules allow “a plaintiff to pursue alternative and legally inconsistent theories up
until the point where one of the inconsistent theories prevails to the exclusion of
the others.” Plf.’s Br. 8 (citing Bd. Of Cnty. Comm’rs of the Cnty. Of La Plata, Co.
v. Brown Grp. Retail, Inc., 598 F. Supp. 2d 1185, 1192-93 (D. Colo. 2009)).
Brown is distinguishable from the present case. Brown dealt with double recovery
as barred by a different section of CERCLA, § 114(b); section 113(f) was not at
issue in Brown. The Brown court denied a motion to dismiss plaintiff’s unjust
enrichment claim, reasoning that it was not preempted by § 114(b) unless plaintiff
prevailed on its CERCLA claims. Preemption of state law claims by § 113(f),
however, is based not on a risk of double recovery but on interference with a
specific recovery scheme established by the statute. State law claims that seek to
circumvent that recovery scheme are preempted regardless of whether there is a
double recovery. Since plaintiffs’ unjust enrichment claim is predicated on costs
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plaintiffs incurred through their settlement with the EPA, the very subject matter §
113(f) covers, that claim is preempted.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion to dismiss count 4 of
plaintiffs’ first amended complaint [#24] is granted.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 10th day of May, 2013.

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