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ROMEO v. GENERAL CHEM. CORP.

September 14, 1994

RAYMOND ROMEO, et al., Plaintiffs,
v.
GENERAL CHEMICAL CORPORATION, a Delaware Corporation, Defendant.



The opinion of the court was delivered by: JENSEN

 The Court heard defendant's motion to dismiss plaintiffs' claims for environmental response costs on February 9, 1994. Michael Baker and Debra Belaga of Jackson, Tufts, Cole & Black appeared for defendant General Chemical Corporation ("GCC"). William Bernstein and William Kershaw of Lieff, Cabraser & Heimann appeared for plaintiffs. The Court granted defendant's motion to dismiss in an abbreviated Order dated February 11, 1994, and returns to the matter now to more fully explain those reasons supporting the Court's holding.

 I. BACKGROUND

 This case arises out of a July 26, 1993 accident in which a chemical cloud was released by GCC at its yard in Richmond, California. At about 7:00 a.m., as employees attempted to transfer one hundred tons of oleum from a railroad tank car to a storage tank, a rapid increase in pressure caused an explosion resulting in the release of thousands of pounds of oleum. Upon contact with the atmosphere, oleum turns into sulfuric acid and sulfur trioxide. In this case, the immediate result was a cloud measuring several miles wide by approximately fifteen miles long.

 Approximately 11:00 a.m., some four hours after the accident, the leak was sealed. The cloud travelled in a primarily northeasterly direction--through at least eleven communities--causing some 20,000 area residents to seek medical treatment. Some of these residents, including the named plaintiffs, were evacuated from the area.

 As explained by plaintiffs, airborne byproducts of oleum can spread to surrounding areas, and subsequently be "reactivated" each time the residue comes in contact with rainfall or water. Physical exposure to oleum, sulfuric acid or sulfur trioxide, plaintiffs contend, can create long-term health concerns.

 Shortly after the accident, four of those plaintiffs named in the federal action filed class action complaints in state court. See Defendant's Mot. at 3. The number of cases in state court now exceeds forty, and the individual claimants in these actions approximate 51,000. The state litigation has been coordinated in Contra Costa County before Judge Douglas Swager.

 Plaintiffs filed this federal action on July 30, 1993, initially asserting claims exclusively under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA), 42 U.S.C. § 9601, et seq. On September 29, 1993, plaintiffs amended the complaint to include supplemental state claims for negligence, negligence per se, public nuisance, private nuisance, trespass and strict liability for ultrahazardous activity. On December 23, 1993, plaintiffs filed a second amended complaint.

 II. DISCUSSION

 A. Legal Standard for Rule 12(b)(6)

 Motions to dismiss are governed by Federal Rule of Civil Procedure 12(b)(6), which provides that a defendant may seek to dismiss a complaint for "failure to state a claim upon which relief can be granted." This rule requires a determination whether the facts alleged would entitle the plaintiff to a legal remedy. The leading case of Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957), articulates the standard as follows:

 
In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

 Id. at 45-46. If the complaint fails to articulate a legally sufficient claim, however, the ...


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