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Hobart Corp. v. Dayton Power and Light Co.

United States District Court, S.D. Ohio, Western Division

December 11, 2017

HOBART CORPORATION, et al., Plaintiffs,
v.
THE DAYTON POWER & LIGHT COMPANY, et al., Defendants.

          DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART CERTAIN DEFENDANTS' JOINT MOTION TO STAY ADJUDICATION OF CLAIMS ASSOCIATED WITH THE 2016 ADMINISTRATIVE SETTLEMENT AND ORDER ON CONSENT (DOC. #780)

          WALTER H. RICE UNITED STATES DISTRICT JUDGE.

         The above-captioned CERCLA case involves Plaintiffs' efforts to obtain contribution for response costs related to cleanup efforts at the South Dayton Dump and Landfill (the "Site").[1] The Sixth Amended Complaint, Doc. #636, seeks contribution for response costs arising from a 2013 Administrative Settlement and Order on Consent ("the 2013 ASAOC") between Plaintiffs and the United States Environmental Protection Agency ("EPA"). The 2013 ASAOC is focused on vapor intrusion risks at the Site. See Doc. #1-1. The Sixth Amended Complaint also seeks contribution for response costs arising from a 2016 Administrative Settlement and Order on Consent ("the 2016 ASAOC"), Doc. #414-1. The 2016 ASAOC addresses a much broader array of contamination problems at the Site.

         This matter is currently before the Court on Certain Defendants' Joint Motion to Stay Adjudication of Claims Associated with the 2016 ASAOC, Doc. #780.[2] For the reasons set forth below, that motion is sustained in part and overruled in part.

         I.

         Defendants argue that, because the EPA has not yet completed the Remedial Investigation/Feasibility Study ("RI/FS") required by the 2016 ASAOC, issued a record of decision ("ROD") or selected an appropriate remedy, Plaintiffs' contribution claims arising from the 2016 ASAOC are not yet ripe for adjudication. In order to recover on these claims, Plaintiffs must prove that they have paid more than their fair share of the response costs. However, it is not yet known what particular waste streams contributed to the specific hazards giving rise to the 2016 ASAOC. Nor has the EPA determined what remedy, if any, is needed, or how much it will cost.

         According to Defendants, at this point, Plaintiffs' experts are simply guessing at the eventual remedy, and assuming that the relative quantity of waste contributed to the Site by each party will be determinative of contribution costs. Defendants argue, however, that the relative toxicity of each party's waste, its relative harm or threat to the environment, and its relation to the need for any remedy selected, are important factors in equitably allocating response costs arising from the 2016 ASAOC. See AlliedSignal, inc. v. Amcast Int'l Corp., 177 F.Supp.2d 713, 752-53 (S.D. Ohio 2001). Much is still unknown. Defendants argue that, until the EPA completes the RI/FS, issues a ROD, and selects a remedy, it will be impossible for the Court to equitably allocate response costs related to the 2016 ASAOC.

         In addition, Defendants argue that, because the EPA has primary jurisdiction to determine an appropriate remedy under CERCLA, a stay will provide appropriate deference to that agency, They maintain that the claims arising from the 2016 ASAOC can easily be severed from the claims arising from the 201 3 ASAOC. Moreover, the facts developed in connection with the 2013 ASAOC will be part of the record and can be used to resolve the claims arising out of the 2016 ASAOC once those claims are ripe for adjudication.

         According to Defendants, a stay will minimize the risk of unnecessary and duplicative expenditures, and conserve judicial resources. Defendants contend that Plaintiffs will suffer no prejudice if the Court issues the stay; however, given the many unknown factors that could affect equitable allocation of response costs, Defendants will be prejudiced if the stay is not granted. For all of these reasons, Defendants urge the Court to stay adjudication of all claims arising from the 2016 ASAOC.

         Plaintiffs argue, however, that Defendants have not established a need for the stay. They concede that the EPA has primary jurisdiction to craft an appropriate remedy, but argue that it is the Court's duty to equitably allocate response costs among the potentially responsible parties. They maintain that staying the case would be an abuse of discretion.

         According to Plaintiffs, the claims arising out of the 2016 ASAOC are ripe, and the "unknowns" are not necessary for an adjudication of response costs. They point out that the undersigned has previously directed the entry of a declaratory judgment concerning equitable allocation of liability for past and future response costs in a case in which the RI/FS had not yet been completed and a remedy had not yet been ordered by the EPA. See Responsible Envt'l Solutions Alliance v. Waste Mgmt., No. 3:04cv13, 2011 U.S. Dist. LEXIS 14204, at *54 (S.D. Ohio Feb. 3, 2011).

         II.

         There is no dispute that the contribution claims arising out of the 2013 ASAOC are ripe for adjudication. In August of 2016, Plaintiffs amended their Complaint to include contribution claims arising out of a new ASAOC, dated June 11, 2016, as well. Doc. #414. Plaintiffs could have filed a separate lawsuit within three years of the date of that Order, see 42 U.S.C. § 9613(g)(3)(B), but because the new ASAOC involves the same Site, it made sense, in the Court's opinion, for Plaintiffs to amend their existing Complaint to include these new claims. That does not necessarily mean that the new claims must be, or can be, fully adjudicated in conjunction with the claims arising out of the 2013 ASOAC. As explained below, the claims arising out of the 2013 ASAOC and the 2016 ASOAC are interwoven in some respects, but not all.

         Each claim for contribution under § 9613(f) involves a two-step process. First, the Court determines who is legally responsible for paying the response costs for the contamination at issue. Second, the Court allocates those response costs among all liable parties "using such equitable ...


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