873 F. Supp. 2d 1342
D. Mont.2012Background
- Keller Transport, Inc. leased equipment and drivers from Wagner Enterprises, LLC; a Wagner tanker truck overturned on MT-35 near Flathead Lake, spilling ~6,000 gallons of gasoline.
- Keller is responsible for cleanup costs and has paid over $300,000; EPA ordered Keller to complete cleanup under an EPA-approved plan; Keller expects up to ten more years of costs and ~$98,000 in EPA-imposed fines.
- Homeowners filed a state-court action (Kohler v. Keller Transport) seeking removal costs and damages; Keller and Wagner are defendants and have cross-claims/counterclaims.
- Keller asserts federal claims (Clean Water Act, RCRA, Oil Pollution Act, and federal common law) and seeks injunctive relief.
- Wagner moved to dismiss under Rule 12(b)(6), to dismiss OPA §2709 subrogation and RCRA contribution, to dismiss CWA claims, and to stay proceedings; court partially grants and partially denies.
- Court will address Keller’s First Amended Complaint claims and outcomes on the motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OPA subrogation under §2715(a) viability | Keller seeks subrogation for costs Keller paid under the Act. | Wagner contends no subrogation because no claimant paid Keller. | Dismissed; no payment to a claimant shown; subrogation not ripe. |
| RCRA contribution under §6972(f) viability | RCRA right to contribution preserved via §6972(f) from other laws. | §6972(f) simply preserves rights under other laws, not a standalone RCRA contribution. | Dismissed; no express/implied RCRA contribution right. |
| RCRA injunctive relief under §6972(a) viability | Keller seeks affirmative injunctive relief to force Wagner cleanup actions. | Act does not permit damages but may not require ongoing remediation. | Denied for damages; granted for affirmative injunctive relief under §6972(a). |
| CWA subrogation/contribution viability | Keller asserts CWA subrogation via §2715 and contribution via §1321(h). | §1321(h) preserves third-party contribution, not a standalone claim; §2715 subrogation not satisfied. | Dismissed; subrogation under §2715 for CWA rejected and contribution under §1321(h) rejected. |
| OPA §2709 contribution as compulsory counterclaim; stay | Keller asserts OPA §2709 claim for removal costs and damages; concurrent jurisdiction with state court. | Claim should have been pleaded as a compulsory cross-claim/counterclaim in state action. | Not compulsory; counterclaim matured after presentment; denial of stay. |
Key Cases Cited
- Meghrig v. RFC Western, Inc., 516 U.S. 479 (U.S. 1996) (limits on cleanup-cost recovery under RCRA; focus on remedies)
- Bear Marine Servs. v. United States, 509 F.Supp. 710 (E.D. La. 1980) (section 1321(h) preserves contribution rights; not source of claim)
- Gabarick v. Laurin Maritime (America) Inc., 623 F.Supp.2d 741 (E.D. La. 2009) (presentment requirements govern Oil Pollution Act claims)
- In re The Complaint of Berkley Curtis Bay Co., 557 F.Supp. 335 (S.D.N.Y. 1983) (section 1321(h) preserves preexisting remedies; not source of contribution)
- Johnson v. Colonial Pipeline Co., 830 F.Supp. 309 (E.D.Va. 1993) (presentment and implied rights related to OPA claims)