Uniroyal Chemical Co., Inc. v. Deltech Corp.

• Citation: 160 F.3d 238
• Decision Date: 10 November 1998
• Docket Number: No. 96-31226,96-31226
• Parties: 29 Envtl. L. Rep. 20,285 UNIROYAL CHEMICAL COMPANY, INC., Plaintiff-Appellant, v. DELTECH CORP.; et al., Defendants, Safeway Transportation, Inc.; TMI Enterprise, Inc., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 238

160 F.3d 238

29 Envtl. L. Rep. 20,285

UNIROYAL CHEMICAL COMPANY, INC., Plaintiff-Appellant, v. DELTECH CORP.; et al., Defendants,

Safeway Transportation, Inc.; TMI Enterprise, Inc.,

Defendants-Appellees.

No. 96-31226.

United States Court of Appeals,

Fifth Circuit.

Nov. 10, 1998.

Order on Rehearing Jan. 8, 1999.

Michael D. Hunt, Patrick O'Hara, Steven Jay Levine, Baton Rouge, LA, for Plaintiff-Appellant.

Thomas M. McNamara, Carmen M. Rodriguez, Liskow & Lewis, Lafayette, LA, Mary S. Johnson, Liskow & Lewis, New Orleans, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Louisiana; Frank J. Polozola, Judge.

Before MAGILL, ¹ SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

This litigation arises from the rupture of a tanker truck parked at a trucking terminal in Port Allen, Louisiana, resulting in the release of a hazardous industrial chemical into the surrounding environment. Uniroyal Chemical Company, Inc. ("Uniroyal"), the appellant, responded to the release and brought suit against other involved parties to recover its clean-up costs in accordance with the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9600 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613 (1986). Uniroyal now appeals the district court's grant of summary judgment in favor of the defendants. We vacate the district court's judgment and remand this action for entry of judgment in favor of Uniroyal.

I. FACTS

In July 1993, a driver working for Safeway Transportation, Inc. ("Safeway") picked up a load of Vinyl Toluene ("VT") at an industrial facility owned by Deltech Corporation in Baton Rouge, Louisiana. The VT was taken in a tanker truck, which Safeway was leasing from TMI Enterprises, Inc. ("TMI"), to a facility owned by Uniroyal in Bay Minette, Alabama. There, Uniroyal added Naugaurd I-5 ("I-5") to the VT load. ² The resulting mixture was then transported back to Louisiana where, in Port Allen, the tanker truck parked for the night at a TMI trucking terminal. The VT/I-5 mixture was scheduled for delivery at the Deltech facility in Baton Rouge the following day.

Early the next morning the tanker truck ruptured while parked at the TMI facility, releasing 21 tons of the VT/I-5 mixture into the surrounding environment. Environmental officials from the State of Louisiana promptly arrived at the scene and, after evaluating the possible threat to public safety and the environment, advised representatives of Uniroyal, Safeway, TMI, and others that emergency action was needed. Only Uniroyal responded to the request. As part of the clean-up process, nearby waterways were blocked, contaminated soil was removed, and hundreds of thousands of gallons of contaminated stormwater were collected and treated. In all, Uniroyal incurred response costs in excess of $2,300,000, for which it was refused reimbursement by the other parties.

Uniroyal then filed suit in federal district court against Safeway, TMI, and other involved parties. ³ In addition to state-law claims not at issue in this appeal, Uniroyal asserted a claim against TMI and Safeway ("defendants") under CERCLA, seeking to recover the costs it incurred in responding to the rupture. ⁴ Uniroyal brought its private cost recovery action under § 9607(a)(1) of the statute, which imposes liability on the "owner or operator" of a CERCLA "facility." ⁵ 42 U.S.C. § 9607(a)(1).

Uniroyal's CERCLA claim against the defendants came before the district court on cross motions for summary judgment; one filed by Uniroyal and one filed jointly by the defendants. At a subsequent hearing on the motions the parties agreed that there were no triable issues of fact and that the court could decide Uniroyal's claim as a matter of law. In a later written order the court denied Uniroyal's motion for summary judgment, granted judgment in favor of the defendants, and dismissed Uniroyal's CERCLA claim. That ruling was the result of the district court's consideration of the two separate issues of statutory construction that now form the basis of the present appeal.

The first issue addressed by the court was whether Uniroyal had established that the defendants were "responsible persons" under the statute, a required element of its CERCLA claim. See Licciardi v. Murphy Oil U.S.A., Inc., 111 F.3d 396, 398 (5th Cir.1997) (listing the four elements of a CERCLA cause of action). The defendants argued that Uniroyal could not legally make that showing because § 9607(a)(1), the provision on which Uniroyal's claim was based, must be read to contain a disposal requirement that conditions liability on the disposal of a hazardous waste. ⁶ As there is no express disposal requirement in that provision, the defendants urged the district court to infer one based on the theory that CERCLA applies only to disposals at inactive or abandoned waste sites. The district court rejected the defendants' contentions, relying simply on the fact that the text of § 9607(a)(1) does not expressly contain a disposal requirement.

The district court next considered whether Uniroyal had proven the existence of a CERCLA "facility," another required element of its CERCLA claim. See 42 U.S.C. §§ 9601(9) & 9607(a)(1). The defendants alleged that Uniroyal could not meet that requirement due to an exception in § 9601(9) that excludes from the definition of facility any "consumer product in consumer use." The defendants argued that the consumer product exception was applicable in this case because the term "consumer product" must be construed as including all useful, non-waste products, not just goods used by individual consumers. The district court agreed. Relying exclusively on our decision in Dayton Indep. Sch. Dist. v. U.S. Mineral Prod. Co., 906 F.2d 1059 (5th Cir.1990), the district court found that "all hazardous substances with a useful purpose in production activities qualify under the consumer product exception." Id. at 1065-66. The Court then reasoned that because the VT/I-5 mixture was a useful product, and the defendants were engaged in commercial conduct at the time the rupture occurred, the consumer product exception applied, precluding Uniroyal from satisfying the facility requirement.

The district court, however, expressed considerable doubt about the correctness of its decision. Though finding itself bound by Dayton, the district court warned that our decision in Dayton was at odds with the plain wording of the exception. The district court further observed that several courts outside of this Circuit had interpreted the consumer product exception as applying only to consumer goods used for personal consumption. The district court certified its ruling as a final judgment under Rule 54(b) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 54(b). Uniroyal appeals the district court's dismissal of its CERCLA claim. The defendants jointly defend that ruling.

II. STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo, applying the same standards as those applied by the district court. OHM Remediation Servs. v. Evans Cooperage Co., Inc., 116 F.3d 1574, 1579 (5th Cir.1997). In a typical summary-judgment appeal we look to whether there are genuine issues of material fact that would have precluded judgment as a matter of law. Fed.R.Civ.P. 56(c); Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.1997). In this case, however, the parties concede there are no triable issues of fact, and we accept that stipulation. Accordingly, the proper focus in this appeal is on whether the district court adhered to the proper legal principles in granting summary judgment to the appellees.

III. DISCUSSION

In this appeal we are faced with the same two issues of statutory construction that were raised and argued before the district court. We first must decide whether Uniroyal established that the defendants are responsible persons under § 9607(a)(1) of CERCLA. In deciding that question we must consider the defendants' claim that § 9607(a)(1) must necessarily contain a disposal requirement because Congress explicitly intended that CERCLA apply only to disposals at inactive or abandoned waste sites. That is an issue of first impression in this Circuit and, to our knowledge, in any United States Court of Appeals.

If we decide that CERCLA is not that narrow, we next must decide whether the consumer product exception precludes Uniroyal from proving the existence of a CERCLA facility, another required element of its cause of action. That question, if reached, will require us to revisit our holding in Dayton to determine whether it governs our application of the consumer product exception in the instant appeal. If Dayton is not controlling, we will be required to address the meaning of the consumer product exception in considering whether it applies to all useful products, or to only goods used for individual or personal use. We begin our analysis with an overview of CERCLA as it relates to the present appeal.

A. Applicable Law

CERCLA was enacted in 1980 as a broad remedial measure aimed at assuring "that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions." S.Rep. No. 96-848, at 13 (1980); see also OHM Remediation Services, 116 F.3d at 1578 (acknowledging CERCLA's broad remedial purpose). In light of that purpose we are obligated to construe its provisions liberally in order to avoid frustrating Congress' intent. See Schiavone v. Pearce, 79 F.3d 248, 253 (2d Cir.1996) (recognizing same obligation).

The statute operates through a bifurcated scheme to promote the cleanup of hazardous substances that have been released into the environment. See 3550 Stevens Creek Assocs. v. Barclays Bank of California, 915 F.2d 1355, 1357 (9th Cir.1990) (explaining the bifurcated scheme), ...