386 F.3d 993 (11th Cir. 2004), 03-14516, Parker v. Scrap Metal Processors, Inc.

Docket Nº:03-14516.
Citation:386 F.3d 993
Party Name:Quebell P. PARKER, Sandra Skypek, Charles Parker, individually, as attorneys in fact for Quebell Parker, and in the name of Quebell Parker, Plaintiffs-Appellees, v. SCRAP METAL PROCESSORS, INC., a Georgia corporation, L.B. Recycling, Inc., a Georgia corporation, J. Wayne Maddox, individually and as the successor in interest to L.B. Recycling, Inc.,
Case Date:September 28, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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386 F.3d 993 (11th Cir. 2004)

Quebell P. PARKER, Sandra Skypek, Charles Parker, individually, as attorneys in fact for Quebell Parker, and in the name of Quebell Parker, Plaintiffs-Appellees,

v.

SCRAP METAL PROCESSORS, INC., a Georgia corporation, L.B. Recycling, Inc., a Georgia corporation, J. Wayne Maddox, individually and as the successor in interest to L.B. Recycling, Inc., Defendants-Appellants.

No. 03-14516.

United States Court of Appeals, Eleventh Circuit

September 28, 2004

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Barbara H. Gallo, Daniel Herbert Sherman, IV, Epstein, Becker & Green, P.C., Kerry F. Nelson, McKenna, Long & Aldridge, LLP, Atlanta, GA, for Defendants-Appellants.

Martin Arthur Shelton, Donald D. Stack, Stack & Associates, P.C., Atlanta, GA, for Plaintiffs-Appellees.

Mary Maclean Asbill, The Turner Environmental Law Clinic, Emory University Law School, Atlanta, GA, for Sierra Club, Amicus Curiae.

Appeal from the United States District Court for the Northern District of Georgia.

Before BARKETT and KRAVITCH, Circuit Judges, and FORRESTER [*], District Judge.

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KRAVITCH, Circuit Judge:

The plaintiffs, Quebell Parker ("Mrs. Parker"), Sandra Skypek, and Charles Parker, (collectively "the Parkers"), filed suit against the defendants, Scrap Metal Processors, Inc. ("SMP") and its predecessors in interest, alleging negligence, negligence per se, nuisance, trespass, violations of the Clean Water Act ("CWA") and the Resource Conservation and Recovery Act ("RCRA"), and violations of various state environmental statutes. A jury returned a verdict against the defendants on all counts. The defendants appeal only the jury's determination that they are liable under the CWA and the RCRA, as well as the award of damages. We conclude that there was substantial evidence for the jury to find the defendants liable under the CWA and the RCRA, but reverse the damages award and remand for a new trial on the issue of damages.

I. Facts 1

Mrs. Parker's family has owned the property at 9144 Washington Street, Covington, Georgia ("Parker property") for approximately the past fifty years. Mrs. Parker moved into the house located on that property in 1983 and lived there until medical problems forced her to move out in 1998. Since then, the house at 9144 Washington Street has remained vacant. 2

The property adjoining the Parker property is 8194 Washington Street ("defendant property"), which was owned by L.B. Frix for many years. Throughout his ownership, Frix operated many businesses on the property, including a scrap metal yard/junkyard. Frix also leased the property to others. The record demonstrates that Frix allowed a junkyard to operate on the property beginning in the 1960s or 1970s. In approximately 1990, J. Wayne Maddox ("Maddox") took over the scrap metal operation from Frix and began operating a scrap metal yard on the defendant property. Thereafter, Maddox incorporated his business as L.B. Recycling, Inc. ("L.B.Recycling") and operated under that name. In 1994, Mr. Maddox acquired ownership of the defendant property. 3 L.B. Recycling was dissolved in 1995, but Maddox continued to operate the business on the defendant property until he sold the scrap metal operation to SMP, a business run by Maddox's son, Jason Maddox, in 1999. 4

The events that led the plaintiffs to file the instant suit began in February 1991. At that time, Maddox contracted with Laurence-David, Inc. to dispose of 1,000 drums of liquid waste. After learning of this contract, the United States Environmental Protection Agency ("EPA") investigated the defendant property in June 1991. The EPA found approximately 600 metal,

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plastic, and fiber drums on the site, along with twenty-five petroleum underground storage tanks ("USTs"). According to EPA investigation reports, some of the drums appeared to have been crushed or were leaking. There were areas of stained soil and soil samples showed evidence of contamination from metals, petroleum products, solvents, and paint wastes. The EPA sampled eight drums; each contained chemicals and hazardous constituents at levels high enough to present an environmental threat. The EPA also tested three USTs; each contained explosive levels of petroleum vapors.

In 1993, the Georgia Environmental Protection Division ("EPD") inspected the defendant property for possible inclusion on the National Priorities Superfund List. The EPD found the property to be in much the same condition as it was in 1991 when the EPA investigated the site. Both the EPA and the EPD determined that the defendant property presented a likelihood of environmental contamination. The reports from each agency identified several hazardous constituents. No report, however, specifically mentioned the Parker property as potentially contaminated or affected.

Maddox and Mrs. Parker had only a few interactions prior to 1999, when Maddox transferred the operation of the scrap yard to his son. When Maddox began operating his business, however, Mrs. Parker had complained to him about kudzu that was growing on the rear portion of her property. Mrs. Parker also stated that she did not want to see the junk piled on his property. 5 She did not complain about noise, debris, or storm-water runoff. In response to these complaints, Maddox voluntarily removed the kudzu from Mrs. Parker's property, and he placed several large USTs on the edge of his property to block the view from Mrs. Parker's home. Mrs. Parker did not complain about the USTs.

The only other communication between Mrs. Parker and Maddox was an offer by Mrs. Parker to sell her property to him. Although Maddox made two offers to purchase the property, the two did not agree on a deal.

In 1999, Maddox sold the scrap-metal business to SMP, a corporation owned by Maddox's son, who has continued to operate the business since that time. Today, SMP purchases discarded scrap metal by the pound, separates the metal from non-recoverable materials, and sorts the metal by type. SMP does not recycle the metal itself, but rather sells the metal to recycling facilities. 6

In addition to these activities, trial testimony from area residents also established that SMP burned solid waste at the facilities. The witnesses observed smoke on various occasions and smelled acrid fumes coming from the facility.

In August 2001, Peachtree Environmental, Inc. ("Peachtree Environmental"), an environmental investigation company, examined the Parker property to determine whether it was contaminated. Soil samples

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from the Parker property tested positive for PCBs and heavy metals. Two of the five samples had PCB and lead levels above the legal limits in Georgia. The Parkers reported the presence of these hazardous substances to the EPD, which determined that the SMP facility was the likely source of the contamination. In December 2002, the EPD issued a consent order requiring Maddox and SMP to investigate and remedy the Parker property. 7

SMP does not have a scrap tire identification number, although it stores scrap tires at the facility. In addition, Maddox did not obtain a storm water discharge permit because he was unaware of the permit requirement. 8 His son, Jason, sought the required permit when he was informed of the requirement. Since that time, however, no storm water pollution prevention plan has been developed or implemented. Surface water flows from the SMP facility and the public right-of-way onto the Parker property, depositing dirt and sediment on the property, and eroding it. Storm water also flows from the SMP facility into the unnamed stream. SMP has none of the permits that are required under the RCRA.

The above facts were presented at a jury trial. The jury returned a verdict finding the defendants liable for negligence, negligence per se, trespass, and nuisance. In addition, the jury found that the defendants violated the CWA and that the plaintiffs were entitled to contribution for corrective action under Georgia's Hazardous Site Response Act ("HSRA"), Ga.Code Ann. §§ 12-8-90 through 12-8-97. In light of these findings, the jury awarded punitive damages and attorneys' fees. The jury awarded the Parkers a total of $1.5 million.

After the verdict, Maddox moved for judgment as a matter of law. The district court denied the motion, but vacated portions of the damage award. 9 The defendants appeal the verdicts and the resulting damage awards on many bases. After determining that we have jurisdiction over this appeal, we take up each of the defendants' arguments in turn.

II. Standing

The defendants contend that the plaintiffs lacked standing to pursue their RCRA and CWA claims. Standing is a jurisdictional requirement, and, thus, failure to raise the issue in the district court does not prevent a party from raising the issue on appeal. Granite State Outdoor Advertising, Inc. v. City of Clearwater, 351 F.3d 1112, 1116 n. 3 (11th Cir. 2003). In addition, standing must exist with respect to each claim. See Jackson v. Okaloosa County, 21 F.3d 1531, 1536-37 (11th Cir. 1994).

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Therefore, we must determine whether the plaintiffs had standing under both the RCRA and the CWA. To demonstrate standing, they must meet three requirements:

First and foremost, there must be alleged (and ultimately proved) an injury in fact--a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical. Second, there must be causation--a fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant. And third, there...

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