Davis v. Sun Oil Co.

• Decision Date: 24 June 1998
• Docket Number: No. 96-4077,96-4077
• Parties: , 28 Envtl. L. Rep. 21,358 Donald P. DAVIS and Maxine Elaine Davis, Plaintiffs-Appellants, v. SUN OIL COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 606

148 F.3d 606

46 ERC 1910, 28 Envtl. L. Rep. 21,358

Donald P. DAVIS and Maxine Elaine Davis, Plaintiffs-Appellants, v. SUN OIL COMPANY, Defendant-Appellee.

No. 96-4077.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 1, 1997.

Decided June 24, 1998.

A. Mark Segreti, Jr. (argued and briefed), Haffey & Segreti, Dayton, OH, for Plaintiffs-Appellants.

Michael R. Blumenthal (argued and briefed), David S. Hoffman (briefed), McMahon, DeGulis & Hoffman, Cleveland, OH, for Defendant-Appellee."Appellee.

Before: MERRITT, WELLFORD, and BOGGS, Circuit Judges.

The court delivered a PER CURIAM opinion. BOGGS, J. (pp. 613-615), delivered a separate opinion concurring in part and dissenting in part.

OPINION

PER CURIAM.

Donald and Maxine Davis brought this action under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B), against Sun Oil Co. ("Sun"). In Davis v. Sun Oil Co., 929 F.Supp. 1077 (S.D.Ohio 1996) ("Davis I"), the district court denied the Davises' motion for summary judgment, and in Davis v. Sun Oil Co., 953 F.Supp. 890 (S.D.Ohio 1996) ("Davis II"), it granted Sun's motion for summary judgment. We AFFIRM.

I

The facts of this case may be found in detail in Davis I and Davis II, as well as in Davis v. Sun Refining and Marketing Co., 109 Ohio App.3d 42, 671 N.E.2d 1049 (1996), of which we take judicial notice. To summarize the situation, in 1985 the Davises purchased from Sun a parcel of land on which Sun had operated a Sunoco filling station. Prior to the sale, Sun told the Davises that it was removing the four 6,000 gallon underground gasoline storage tanks on the property, and did so. In 1989, the Davises contracted to sell the land to United Dairy Farmers ("UDF"), subject to an environmental inspection. When UDF's consultants tested the land, they discovered quantities of gasoline in the soil, emanating from buried gasoline pipes that had connected the tanks and the gas pumps; Sun had left the piping in place and covered it up with dirt when the tanks were removed. Faced with the prospect of a lawsuit, Sun executed with the Davises a letter agreement pledging to clean up the site.

After Sun largely failed to do so, the Davises sued Sun in state court in May 1991, alleging nuisance, breach of contract, and fraud. ¹ In September of 1993, a referee conducted a three-day trial, and in December of 1993, filed a report with the court recommending that Sun be found to be in breach of contract, and that the Davises be awarded damages equal to what they had already spent in an effort to clean up the site, and specific performance of the letter agreement. The referee also recommended that Sun be found liable for fraud, and that the Davises be awarded punitive damages. In March of 1995, the state court issued a decision and entry adopting the referee's recommendations. As to the specific performance remedy, the court required Sun to clean up the site so as to satisfy state regulatory guidelines within one year, and to post a $400,000 bond as guarantee. In January, 1996, the state court of appeals affirmed the decision of the trial court, except that it modified the specific performance award, on the grounds that cleaning up the site so as to meet state regulations might take more than one year. The appellate court ordered Sun "to complete the cleanup in an expedited manner, in full accordance with all requirements and regulations promulgated by the fire marshall [sic] [the state agent charged with regulating underground storage tanks]." Davis, 671 N.E.2d 1049.

Meanwhile, in October of 1993, the Davises brought this RCRA action in federal district court, alleging that Sun, by leaving gasoline buried in the property, had "contributed to and caused the disposal of solid or hazardous waste on the property which may present an imminent and substantial endangerment to health or environment," in violation of RCRA, 42 U.S.C. § 6972(a)(1)(B). The court held a pretrial conference and, in July of 1994, issued the first of a series of orders staying proceedings pending the resolution of the litigation in state court, and requesting timely status reports with respect to the other action pending.

II

In July, 1995, the Davises moved for summary judgment. They argued that

the essential factual elements of a claim under 42 U.S.C. § 6972 have been finally determined by the Court of Common Pleas of Cuyahoga County, Ohio ... [which] specifically found that the contamination indicated "high levels of benzene, toluene, ethyl benzene and xylenes (together called 'BTEX'), lead and PHC. The PHC levels exceeded the State's guidelines." ... The several findings of high levels of benzene necessarily determines that there may be an imminent and substantial endangerment. See 40 C.F.R. §§ 141.32 and 141.50(a). Thus, through the principles of collateral estoppel, Defendant Sun is now estopped from contesting the findings of the Court of Common Pleas.... Under Ohio law, those issues are determined and are entitled to preclusive effect. 28 U.S.C. § 1738 requires that the Court give them the same preclusive effect. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); Migra v. Warren City School Bd., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982).

The district court rejected the Davises' argument, correctly observing that the precise issue of whether the contamination "may present an imminent and substantial endangerment to health or the environment" had never been actually litigated and determined by the state court. Therefore, the issue was not precluded from further litigation. 929 F.Supp. at 1081. ²

Further, the court held that summary judgment was inappropriate because there was a genuine issue of material fact as to whether the contamination "may present an imminent and substantial endangerment." The Davises and Sun each presented affidavits by consulting engineers, who, after evaluating the same environmental assessments that had been submitted as evidence in state court reached--unsurprisingly--opposite conclusions on this question. As the court observed, "[t]his disagreement by the experts retained by each of the parties, would appear to create a genuine issue of material fact as to the ultimate legal issue in this case." Id. at 1082.

The court also rejected the Davises' attempted use of the Environmental Protection Agency regulations cited in their brief to establish a standard for the level of contamination that might, as a matter of law, "present an imminent and substantial danger." The district court noted that the cited EPA regulations pertain to contamination levels in drinking water, not in soil, and observed:

There is simply no evidence as to either the precise quantity of gasoline which remains in the soil; whether this seepage either currently has an effect on the drinking water, or is likely to have such an effect; or what the magnitude of such an effect might be, in regard to health or the environment. Although this Court could speculate on these issues, such speculation would not provide a proper basis for summary judgment.

RCRA is a remedial measure that courts have tended to construe and apply in a liberal, though not unbridled, manner. The Second Circuit has discussed the statute as follows:

When congress enacted RCRA in 1976, it sought to close "the last remaining loophole in environmental law, that of unregulated land disposal of discarded materials and hazardous wastes." RCRA's waste management requirements for disposal facilities are designed not only to prevent, but also to mitigate endangerments to public health and the environment.

Significantly, congress used the word "may" to preface the standard of liability: "present an imminent and substantial endangerment to health or the environment". This is "expansive language", which is "intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes."

The statute is "basically a prospective act designed to prevent improper disposal of hazardous wastes in the future". It is not specifically limited to emergency-type situations. A finding of "immanency" does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present: "An 'imminent hazard' may be declared at any point in a chain of events which may ultimately result in harm to the public." Imminence refers "to the nature of the threat rather than identification of the time when the endangerment initially arose."

In addition, a finding that an activity may present an imminent and substantial endangerment does not require actual harm. Courts have consistently held that "endangerment" means a threatened or potential harm and does not require proof of actual harm.

Dague v. City of Burlington, 935 F.2d 1343, 1355-56 (2d Cir.1991) (citations omitted). ³

In keeping with the language recited in Dague, courts might in some cases be justified in holding, as a matter of law, that a certain degree of hazardous waste at a particular site "may present an imminent and substantial endangerment." They could do so where the specific circumstances of the disposal site presented such large and unmitigated hazards (such as the amount and type of waste, combined with its proximity to the public) that "reasonable minds could not differ as to the import of the evidence." See Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The district court cited, and correctly distinguished, two such cases, in which the particular facts had been held to justify summary judgment. Davis II, 953 F.Supp. at 893 n. 3. We agree with the district court's explanation, noted above, of why the determination by the Ohio court that Sun had polluted the soil in that manner and degree shown by...