Federal District Court Allows CERCLA Suit to Proceed

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SandBar 8:3, October, 2009 Recommended citation: Proctor, Johnathan , Federal District Court Allows CERCLA Suit to Proceed, 8:3 SandBar 20 (2009). Federal District Court Allows CERCLA Suit to Proceed Frontier Communications Corp. v. Barrett Paving Materials, Inc., et al., Order on Motion to Dismiss, no. 1:07-cv-113-GZS (D. Me. 2009). *Jonathan Proctor, 3L, University of Mississippi School of Law* Maine Central Railroad Company (MCRC) ran a rail yard in Bangor, Maine for over 100 years until Guilford Transportation Industries, Inc. (Guilford) purchased the company in 1981 and continued operations. Over time, several spills of poly-aromatic hydrocarbon (PAH) materials and tar occurred with significant amounts reaching the adjacent banks of Penobscot River’s Dunnett’s Cove, contaminating the soil. Frontier Communications Corporation’s (Frontier) sued the companies under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)1 for the costs associated with cleanup of these materials. Citing a failure to state a claim upon which relief may be granted, Guilford and MCRC (collectively, the railroads) recently filed a motion to dismiss Frontier’s suit. In order for such a motion to succeed, the court must find that the plaintiff’s complaint does not include “sufficient facts to support the claim for relief.”2 In refuting the CERCLA claims, the railroads relied upon the recent Supreme Court case Burlington Northern & Santa Fe Railway Co. v. United States.3 In Burlington Northern, the U.S. Supreme Court limited “arranger” liability under CERCLA to entities that take intentional steps to dispose of hazardous substances. Relying on this, the railroads asserted that “‘mere knowledge that spills and leaks continued to occur’” is insufficient to justify CERCLA liability.4 The court noted that the railroads failed to address Frontier’s claim that the railroads disposed of these materials into Dunnett’s Cove via sewer lines on the property. The court concluded that Frontier’s complaint included sufficient factual allegations to withstand the railroads’ motion to dismiss. Further, the court found the railroads’ contention that Frontier’s CERCLA claims preempted all of its common law claims without merit. The district court’s interpretation of the Supreme Court’s decision in Burlington Northern points to how future courts may interpret “arranger” liability under CERCLA. In this instance, the court’s focus on the railroads’ disposal of substances through sewer lines, and not other spills and leaks, suggests that it would likely focus on intentional spills. Lastly, the railroads argued that, under Maine law, the six year statute of limitations for negligence had run, barring Frontier from recovery based on any actions occurring before 1997 (the negligence claim began in 2003). However, claims based upon continuing actions, without a clearly definable single incident, could continue until the actions have ended. As the railroads still own and operate the property in question, the court ruled against the railroads’ statute of limitations argument. With the railroads’ motion to dismiss denied on all counts, Frontier’s CERCLA, common law, and negligence claims will proceed. The court’s ruling, however, should not be interpreted as an indication of the suit’s eventual outcome; motions to dismiss based upon a failure to state a claim upon which relief may be granted are viewed by the court in the light most favorable to the plaintiff. Frontier may have crossed this hurdle, but its claims will have to meet a higher standard at trial. Endnotes 1. 42 U.S.C. §§ 9601-9675. 2. Frontier Communications Corp. v. Barrett Paving Materials, Inc., et al., Order on Motion to Dismiss, no. 1:07-cv-113-GZS (D. Me. 2009). 3. 129 S. Ct. 1870 (2009). 4. Order on Motion to Dismiss, supra note 2, at 5 (citing Burlington at 1880).
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SandBar 8:3, October, 2009
Recommended citation: Proctor, Johnathan , Federal District Court Allows CERCLA Suit to Proceed, 8:3 SandBar 20 (2009).

Frontier Communications Corp. v. Barrett Paving Materials, Inc., et al., Order on Motion to Dismiss, no. 1:07-cv-113-GZS (D. Me. 2009).

Jonathan Proctor, 3L, University of Mississippi School of Law

Maine Central Railroad Company (MCRC) ran a rail yard in Bangor, Maine for over 100 years until Guilford Transportation Industries, Inc. (Guilford) purchased the company in 1981 and continued operations. Over time, several spills of poly-aromatic hydrocarbon (PAH) materials and tar occurred with significant amounts reaching the adjacent banks of Penobscot River’s Dunnett’s Cove, contaminating the soil. Frontier Communications Corporation’s (Frontier) sued the companies under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)1 for the costs associated with cleanup of these materials.
      Citing a failure to state a claim upon which relief may be granted, Guilford and MCRC (collectively, the railroads) recently filed a motion to dismiss Frontier’s suit. In order for such a motion to succeed, the court must find that the plaintiff’s complaint does not include “sufficient facts to support the claim for relief.”2
      In refuting the CERCLA claims, the railroads relied upon the recent Supreme Court case Burlington Northern & Santa Fe Railway Co. v. United States.3 In Burlington Northern, the U.S. Supreme Court limited “arranger” liability under CERCLA to entities that take intentional steps to dispose of hazardous substances. Relying on this, the railroads asserted that “‘mere knowledge that spills and leaks continued to occur’” is insufficient to justify CERCLA liability.4 The court noted that the railroads failed to address Frontier’s claim that the railroads disposed of these materials into Dunnett’s Cove via sewer lines on the property. The court concluded that Frontier’s complaint included sufficient factual allegations to withstand the railroads’ motion to dismiss. Further, the court found the railroads’ contention that Frontier’s CERCLA claims preempted all of its common law claims without merit.
      The district court’s interpretation of the Supreme Court’s decision in Burlington Northern points to how future courts may interpret “arranger” liability under CERCLA. In this instance, the court’s focus on the railroads’ disposal of substances through sewer lines, and not other spills and leaks, suggests that it would likely focus on intentional spills.
Lastly, the railroads argued that, under Maine law, the six year statute of limitations for negligence had run, barring Frontier from recovery based on any actions occurring before 1997 (the negligence claim began in 2003). However, claims based upon continuing actions, without a clearly definable single incident, could continue until the actions have ended. As the railroads still own and operate the property in question, the court ruled against the railroads’ statute of limitations argument.
      With the railroads’ motion to dismiss denied on all counts, Frontier’s CERCLA, common law, and negligence claims will proceed. The court’s ruling, however, should not be interpreted as an indication of the suit’s eventual outcome; motions to dismiss based upon a failure to state a claim upon which relief may be granted are viewed by the court in the light most favorable to the plaintiff. Frontier may have crossed this hurdle, but its claims will have to meet a higher standard at trial.

Endnotes
1. 42 U.S.C. §§ 9601-9675.
2. Frontier Communications Corp. v. Barrett Paving Materials, Inc., et al., Order on Motion to Dismiss, no. 1:07-cv-113-GZS (D. Me. 2009).
3. 129 S. Ct. 1870 (2009).
4. Order on Motion to Dismiss, supra note 2, at 5 (citing Burlington at 1880).