Continental Indus, v. Coltec Indus. CV-96-264-JD 02/04/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Continental Industries, Inc.

v. Civil No. 96-264-JD

Coltec Industries, Inc.

O R D E R

The plaintiff and counterclaim-defendant, Continental

Industries, Inc. ("Continental"), brought this action under the

Comprehensive Environmental Response, Compensation, and Liability

Act of 1980 ("CERCLA"),

, against the

defendant and counterclaim-plaintiff, Coltec Industries, Inc.

("Coltec"). Before the court is Continental's motion to dismiss

Coltec's counterclaims (document no. 9).

Background

This action concerns environmental contamination of a site

located on Monument Road in Hinsdale, New Hampshire. Coltec and

its predecessors-in-interest1 owned and operated a manufacturing

operation at the site, which is now owned by Continental. From

approximately 1967 through 1977, Coltec's operation used the

'Coltec's predecessors-in-interest at the site are Pratt & Whitney, Inc. and Coltec Industries Operating Corporation. This order refers to Coltec generally to denote either Coltec or its relevant predecessor-in-interest. contaminant perchloroethylene (PCE) as a chemical degreaser for

metal drill bits and end mills at the site. Continental alleges

that Coltec periodically discharged PCE into a drywell on the

site.

Coltec sold the site to Continental in 1977. Continental

subseguently discovered that the site was contaminated by haz­

ardous wastes, including PCE. It instituted this action against

Coltec, seeking, inter alia, monetary damages representing the

costs of cleaning up the site and a declaratory judgment that

Coltec is liable to Continental for future response costs.

Coltec filed a six-count counterclaim against Continental,

asserting the following: (1) Continental is jointly and

severably liable to Coltec for all response costs on a cost

recovery theory under

(a); (2) Coltec is entitled

to a declaratory judgment that Continental is liable to Coltec

for future necessary costs of response; (3) if Coltec is liable

under CERCLA, then Continental is liable to Coltec for contri­

bution under

(f); (4) Coltec is entitled to a

declaration of the rights and duties of itself and Continental

arising from this dispute; (5) Coltec is entitled to statutory

contribution from Continental under N.H. Rev. Stat. Ann. ("RSA")

§ 147-B:10; and (6) Coltec is entitled to statutory contribution

from Continental in accordance with RSA § 507:7-f.

2 Continental has moved to dismiss Coltec's counterclaims

against it, asserting that (1) as a party liable under CERCLA

Coltec cannot maintain a cost recovery action against

Continental, and (2) because Coltec has not shown that

Continental polluted the site it cannot maintain a contribution

claim against Continental.2

Discussion

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of

limited inguiry, focusing not on "whether a [party] will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v. Rhodes,

(1974). Accordingly, the court must take the factual

averments contained in the counterclaim as true, "indulging every

reasonable inference helpful to the [counterclaim] plaintiff's

cause." Garita Hotel Ltd. Partnership v. Ponce Fed. Bank,

(1st Cir. 1992); see also Dartmouth Review v.

Dartmouth College,

(1st Cir. 1989). Great

specificity is not reguired to survive a Rule 12(b)(6) motion.

"[I]t is enough for a plaintiff to sketch an actionable claim by

Continental's first argument is directed at Coltec's first two counterclaims and its second argument is directed at the remaining counterclaims.

3 means of 'a generalized statement of facts from which the

defendant will be able to frame a responsive pleading.'" Garita,

(guoting 5A Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 1357 (1990)). In the end, the

court may grant a motion to dismiss under Rule 12(b)(6) "'only if

it clearly appears, according to the facts alleged, that the

plaintiff cannot recover on any viable theory.'" Garita,

(guoting Correa-Martinez v. Arrillaqa-Belendez, 903

F .2d 49, 52 (1st Cir. 1990)) .

For a private-action plaintiff to prevail in a cost recovery

action under

(a) it must

prove that (1) a release of a "hazardous substance" from the subject "facility" occurred or is threatened; (2) the defendant comes within any of four categories of "covered persons," which include current owners or operators of the facility, see

(9) (B), as well as the owners and operators of the facility at the time the contamination occurred; (3) the release or threatened release has caused (or may cause) the claimant to incur response costs; and (4) the response costs are "necessary" and "consistent with the national contingency plan."

In re Hemingway Transp., Inc.,

(1st Cir. 1993)

(footnote omitted). Coltec's counterclaim asserts that (1) the

site is a "facility," (2) Continental currently owns and operates

the site, (3) the site contains "hazardous substances" which have

been released or threaten to be released from it, and (4) Coltec

has incurred and will continue to incur "necessary" costs of

4 "response" because of the release of such substances. Coltec's

Answer and Counterclaim, at 17-18. Coltec also claims that at

some point Continental used organic solvents as part of its

operation at the site and that Continental "owned and/or operated

the Site at the time of disposal of hazardous substances at the

site." Id. at 17, 18. If Coltec proves these assertions, it

would be entitled to a cost recovery against Continental. See

Hemingway,

.

Despite the fact that Coltec has stated a cognizable

counterclaim under

against Continental,

Continental argues that Coltec's counterclaims should be

dismissed because "a liable party, like Coltec, may not maintain

a cost recovery action under CERCLA but may only assert a

contribution claim based on the parties proportionate fault for

the counterclaim." In addition. Continental argues that "Coltec

has failed to allege any facts to support its contribution

counterclaims, as there is no evidence Continental contributed to

the contamination at the property." Both arguments are

unavailing.

Continental's first argument fails because Continental has

not yet established that Coltec is a liable party under CERCLA.

Continental has asserted Coltec's liability and may ultimately

prevail on this claim, but Continental assumes a resolution in

5 its favor of the question that lies at the heart of the very

controversy with which this lawsuit is concerned.3

Continental's second argument also fails. Although

Continental has asserted that there is no evidence that it

polluted the site and thus it cannot be liable for contribution,

Coltec's assertion that Continental "owned and/or operated the

site at the time of disposal of hazardous substances at the

site," if proven, would entitle Coltec to contribution from

Continental with respect to those costs. Taking the counterclaim

and the facts alleged therein in the light most favorable to

Coltec, the court finds that Coltec has "sketch[ed] an actionable

claim." See Garita,

.

Continental cites United Techs. Corp. v. Browninq-Ferris Indus., Inc.,

(1st Cir. 1994), in support of its assertion. Its reliance on United is misplaced. Although in United the First Circuit held that a party liable under CERCLA could not pursue a cost recovery claim but must instead seek contribution, there the party seeking to assert a cost recovery claim had entered into a consent decree establishing its own liability. See

. Because here Coltec maintains that it is not liable under CERCLA, at this stage it is not barred from seeking a cost recovery from Continental.

6 Conclusion

For the reasons stated above. Continental's motion to

dismiss Coltec's counterclaims (document no. 9) is denied.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

February 4, 1997

cc: Mark C. Rouvalis, Esquire George R. Moore, Esquire Charles E. Merrill, Esquire John R. Mayo, Esquire Daniel P. Luker, Esquire

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