The opinion of the court was delivered by: Judge Caputo
Third-Party Defendants Sandvik, Inc. ("Sandvik") and Pennsylvania Extruded Tube Company ("PEXCO") move to dismiss Counts V and VII of the Second Amended Third-Party Complaint by Third-Party Plaintiff Bostik, Inc. ("Bostik"). (Doc. 6.) Third-Party Defendants (collectively the "Sandvik Entities") bring their motion under Federal Rule of Civil Procedure 12(b)(6), arguing that Bostik filed its claims outside the applicable statutes of limitations. Because the statute of limitations does not bar Bostik's claim in Count V for negligence for off-site contamination and because the period of limitations is greater than two years under the Tank Act, the motion will be denied.
The facts as alleged in Bostik's Second Amended Third-Party Complaint are as follows:
Bostik is the owner of land in the Ivy Industrial Park (the "Bostik Property"), including a facility that manufactured adhesives between 1977 and 2003. (Compl. ¶ 11, 12.) Metso Paper USA, Inc. ("Metso") filed suit against Bostik alleging that Bostik is liable for costs that Metso incurred because of contamination in the Ivy Industrial Park. (Compl. ¶ 1.) Bostik then filed a third-party complaint against the Sandvik Entities, alleging that the facilities on the Sandvik land are the source of some or all of the contamination at issue in Metso's lawsuit. (Compl. ¶ 3.) The Sandvik Entities also own land in the Ivy Industrial Park (the "Sandvik Property"). (Compl. ¶ 13.) Sandvik operates a steel products manufacturing facility and PEXCO operates a steel tube manufacturing facility, both located on the Sandvik Property.
Between approximately 1971 and 1980, trichloroethylene (TCE) was used on the Sandvik Property. (Compl. ¶ 14-15.) Tetrachloroethylene (PCE) has also been used on the Sandvik Property. (Compl. ¶ 16.) TCE and PCE are both hazardous substances under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., and Pennsylvania's Hazardous Sites Cleanup Act ("HSCA"), 35 P.S. § 6020.101 et seq. (Compl. ¶ 17.) TCE and PCE are also regulated substances under Pennsylvania's Storage Tank and Spill Prevention Act ("Tank Act"), 35 P.S. § 6021.101 et seq. (Compl. ¶ 17.) Trichloroethane, another hazardous and regulated substance, has also been used on the Sandvik property. (Compl. ¶ 19.)
Sandvik issued a Site Characterization Report concluding that there were several sources of contamination on the Sandvik Property, including several aboveground storage tanks that released substances regulated under the Tank Act. (Compl. ¶ 21-22.) In December 2005 and February 2007, Sandvik entered into Consent Orders with the Commonwealth of Pennsylvania Department of Environmental Protection ("PADEP"). (Compl. ¶ 31-32.) These orders, among other things, required Sandvik to investigate releases of hazardous substances on and off the Sandvik Property and monitor certain residential well treatment systems. (Compl. ¶ 31-32.)
Some of the TCE and PCE released into the soil on the Sandvik Property has migrated into the groundwater in areas beyond the Sandvik Property, including the groundwater beneath the Bostik Property and the groundwater beneath Metso's property. (Compl. ¶ 26, 28-30.) All of the hazardous and regulated substances detected in the groundwater under the Bostik and Metso Properties are within 2500 feet of the perimeter of the site of the Sandvik storage tanks that released hazardous and regulated substances. (Compl. ¶ 29-30.) Bostik has not used TCE or TCA on the Bostik Property. (Compl. ¶ 19.)
On April 23, 2008, Bostik entered into a Consent Order and Agreement with PADEP (the "Bostik Order") requiring Bostik to investigate the release of hazardous substances on and off the Bostik Property, sample off-site wells, and maintain and monitor carbon treatment systems in off-site private homes near the Ivy Industrial Park. (Compl. ¶ 33.) The cost of responding to the Consent Order has been several million dollars, and Bostik expects to incur substantial additional costs from that Order and any other potential future orders from PADEP. (Compl. ¶ 37.) Metso seeks to recover in its lawsuit approximately $2 million dollars from Bostik. (Compl. ¶ 39.) Bostik anticipates that in the future, other private plaintiffs may assert claims against it related to the contaminated groundwater. (Compl. ¶ 46.) Bostik thus seeks from the Third-Party Defendants "recovery of response costs, costs to resolve this and other lawsuits brought against Bostik, and other damages incurred by Bostik relating to groundwater contamination caused by one or more of the third-party defendants." (Compl. ¶ 4.)
Bostik filed its Third-Party Complaint against the Sandvik Entities on April 13, 2010. (Doc. 51.) It filed its Amended Third-Party Complaint on May 28, 2010 (Doc. 64), and then filed its Second Amended Third-Party Complaint on February 17, 2011. (Doc. 105.) The Sandvik Entities filed the present motion on February 25, 2011. (Doc. 107.)
The motion has been fully briefed and is ripe for disposition.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555).
In deciding a motion to dismiss, a court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the ...