Gary/Chicago International Airport Authority v. Honeywell International Inc

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

N.D. Ind.April 24, 2017

1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION Electronically Filed GARY/CHICAGO INTERNATIONAL AIRPORT AUTHORITY ) ) ) Plaintiff ) ) v. ) Case No. 2:17-cv-00095-JVB-PRC ) HONEYWELL INTERNATIONAL, INC. ) ) Defendant. ) DEFENDANT HONEYWELL INTERNATIONAL INC.’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Honeywell International Inc. (“Honeywell”) moves the Court to dismiss the Complaint of Gary/Chicago International Airport Authority (“Airport”) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. The Airport cannot state a claim for relief for its CERCLA1 claims (Counts I, II, and IV). CERCLA bars the Airport from asserting a Section 107 claim because it has resolved its liability for the remediation costs at issue in a 2016 agreement with the Indiana Department of Environmental Management, and therefore it may only advance Section 113 claims against third parties like Honeywell. The Airport’s Section 113 contribution claim against Honeywell, however, is barred by the contribution protection Honeywell received in exchange for its participation in prior remediation work at the former hazardous waste disposal facility operated by Conservation Chemical Company of Illinois in Gary, Indiana. The Airport’s claim for 1 Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601 et seq. USDC IN/ND case 2:17-cv-00095-JVB-PRC document 13 filed 04/24/17 page 1 of 3 2 declaratory relief under CERCLA must be dismissed because the Airport cannot state a claim under CERCLA Section 107 or Section 113. The Airport also cannot state a claim for relief for its ELA2 claim (Count III) because, under the widely recognized “conflict preemption” doctrine, the Airport cannot recover its Remediation Costs under the ELA because doing so would nullify CERCLA’s contribution protection provision. A Memorandum of Law in support of this Motion to Dismiss is filed herewith in compliance with Northern District of Indiana Local Rule 7-1. Dated: April 24, 2017 Respectfully submitted, s/ John W. Woodard, Jr. John W. Woodard, Jr. Attorney No. 15880-49 WYATT, TARRANT & COMBS, LLP 500 West Jefferson Street, Suite 2800 Louisville, Kentucky 40202-2898 Tel. (502) 562-7148 Fax (502) 589-0309 E-mail: jwoodard@wyattfirm.com Attorney for Defendant Honeywell International Inc. 2 Indiana’s Environmental Legal Action statute, Indiana Code §§ 13-30-9-1 et. seq. USDC IN/ND case 2:17-cv-00095-JVB-PRC document 13 filed 04/24/17 page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on this 24th day of April, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Frank J. Deveau fdeveau@taftlaw.com Ann O’Connor McCready amccready@tatlaw.com Taft Stettinius & Hollister LLP One Indiana Square, Suite 3500 Indianapolis, IN 46204 Tel.: (317) 713-3500 Fax: (317) 713-3699 Attorneys for Plaintiff s/ John W. Woodard, Jr. John W. Woodard, Jr. Attorney for Defendant Honeywell International Inc. 61612625.1 USDC IN/ND case 2:17-cv-00095-JVB-PRC document 13 filed 04/24/17 page 3 of 3