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United States v. TMC 100 ELM, LLC

United States District Court, D. Massachusetts

August 13, 2019

UNITED STATES OF AMERICA, Plaintiff/Defendant-in-Counterclaim,
v.
TMC 100 ELM, LLC, Defendant/Plaintiff-in-Counterclaim.

          MEMORANDUM & ORDER

          Indira Talwani, United States District Judge.

         I. Introduction

         Before the court is Plaintiff and Defendant-in-Counterclaim United States of America's Motion to Dismiss [#40] Defendant and Plaintiff-in-Counterclaim TMC 100 Elm, LLC's (“TMC”) Counterclaim [#27]. The United States moves to dismiss for lack of subject matter jurisdiction, or in the alternative, for failure to state a claim upon which relief can be granted. For reasons set forth below, the Motion to Dismiss [#40] is GRANTED.

         II. Background

         A. The United States' Complaint and this Court's Orders

         The dispute before the court relates to the Environmental Protection Agency's (“the EPA”) efforts to access TMC's property, as part of the EPA's remediation of the Blackburn and Union Privileges Superfund Site (“Superfund Site”). According to the Complaint [#1], the Superfund Site comprises approximately twenty-two acres in Walpole, Norfolk County, Massachusetts. In 1994, the EPA identified the Superfund Site as an area that required remediation, and in 2010, entered into a Consent Decree with BIM Investment Corporation, the Shaffer Realty Nominee Trust, Tyco Healthcare Group (now Covidien LP), and W.R. Grace and Co. (collectively, the “Performing Parties”). Compl. ¶¶ 17-21 [#1]. The Consent Decree required the Performing Parties to remediate the Superfund Site, including excavating, dredging, and disposing of contaminated soil and sediment. Id. ¶ 21.

         According to the Complaint [#1], to complete remediation of an area of the Superfund Site surrounding Lewis Pond, the Performing Parties required access to twenty-three separate parcels, owned or controlled by twenty owners. Id. ¶ 23. TMC owns several of the parcels at issue (“TMC Property”), including property currently in use as a parking lot (“West Street Parking Lot”). Id. ¶¶ 25-27.

         After challenges coordinating access to the TMC Property, the EPA issued an Administrative Access Order in April 2018, which became effective on May 8, 2018. Id. ¶¶ 32-33; Motion for Order in Aid of Immediate Access to the Property of TMC, Ex. 1 (“Administrative Access Order”) [#4-2]. When TMC refused to provide access to its property despite the Administrative Access Order, the United States filed the Complaint [#1] pursuant to Section 104(e) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-75 (“CERCLA”), as amended by 42 U.S.C. § 9604(e).

         The United States subsequently sought an Order in Aid of Immediate Access [#4] and on June 12, 2018, the court granted the Order in Aid of Immediate Access [#4], which authorized access of the Property to the EPA for a period of 14 months. See June 12, 2018, Order [#10] (granting the EPA access to the West Street Parking Lot).[1]

         B. TMC's Counterclaim

         In October 2018, TMC filed its Answer, Affirmative Defenses, and Counterclaim (“Counterclaim”) [#27]. As grounds for its counterclaim, TMC alleges that the June 12 Order [#10] and the EPA's restrictions of TMC's access put TMC in a potential breach of its obligations to a purchaser of the parking lot, and that TMC's potential breach could be avoided by lifting or modifying the Order [#10]. Countercl. ¶¶ 6-7 [#27]. TMC also asserts that representatives of the Performing Parties informed TMC that TMC could not complete its work on 58 parking spaces that TMC reserved for its tenants, even though the EPA did not seek access to these 58 spots, and that TMC's proposed work does not interfere with remediation. Id. ¶ 9. TMC's counterclaim asks the court: (1) to reduce the 14-month remediation period, and to declare that the court has the power to “consider the circumstances of this case, the public interest, and the relative harm to TMC . . . and/or to qualify or revise any access order”; (2) for a declaration that completion of TMC's planned construction in the West Street Parking Lot by July 16, 2018, did not and does not interfere with access to the Property; and (3) for a declaration that TMC's use of 58 parking spaces on a portion of the West Street Parking Lot that is not covered by the court's access order does not interfere with access to the Property. Countercl. at 11-12 (paragraphs 1-2(a)-(c)) [#27].

         The United States filed a Motion to Dismiss [#40] TMC's counterclaim, asserting that TMC failed to establish subject matter jurisdiction, and, in the alternative, that TMC fails to state a claim. The United States further argues that CERCLA § 113(h) expressly prohibits the court from exercising jurisdiction over this counterclaim. Pl. Mem. in Support of Mot. to Dismiss Countercl. (“Pl. Mem.”) [#41]. TMC asserts that the court has jurisdiction to enter declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, that “CERCLA § 104(e)(5) . . . specifically permits and requires the Court to consider the circumstances of this case in connection with any order entered by the Court allowing TMC to allow access to its property, ” and that its “narrow request” for relief is a compulsory counterclaim, over which this court has jurisdiction. Def. Opp. to Pl. Mot. to Dismiss Countercl. (“Def. Opp.”) [#47]; Countercl. ¶ 3 [#27].

         III. Discussion

         A. The Court's Jurisdiction in this Matter is Limited to Relief Available Under 42U.S.C. ยง 9604(e)(5) and ...


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