Redwing Carriers v. Saraland Apartments, Ltd.

• Decision Date: 10 January 1995
• Docket Number: Civ. A. No. 91-0524-BH-S.
• Citation: 875 F. Supp. 1545
• Parties: REDWING CARRIERS, INC., Plaintiff, v. SARALAND APARTMENTS, LTD.; Michael Coit and Christopher Weil, as legal representatives of the Estate of Robert Coit; Roar Company; Marcrum Management Company; Meador Contracting Company, Inc.; Hutton Advantaged Properties, Ltd.; and H/R Special Limited Partnership, Ltd., Defendants.
• Court: U.S. District Court — Southern District of Alabama

875 F. Supp. 1545

REDWING CARRIERS, INC., Plaintiff, v. SARALAND APARTMENTS, LTD.; Michael Coit and Christopher Weil, as legal representatives of the Estate of Robert Coit; Roar Company; Marcrum Management Company; Meador Contracting Company, Inc.; Hutton Advantaged Properties, Ltd.; and H/R Special Limited Partnership, Ltd., Defendants.

Civ. A. No. 91-0524-BH-S.

United States District Court, S.D. Alabama, Southern Division.

January 10, 1995.

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Sandy G. Robinson, Mobile, AL, J. Daniel Berry, Diane Gildersleeve, Beveridge & Diamond, P.C., Devarieste Curry, Washington, DC, for Redwing Carriers, Inc.

Thomas H. Benton, Jr., Mobile, AL, Wesley Pipes, Mobile, AL, Christopher M. Weil, Amy Brooks Ganci, Dallas, TX, for Saraland Apartments, Robert Coit, Roar Co.

Sandy G. Robinson, Mobile, AL, for Michael Coit, Christopher M. Weil.

Brock B. Gordon, Mobile, AL, for Marcrum Management Co.

Thomas E. Sharp, III, Mobile, AL, for Meador Contracting Co., Inc.

Victor T. Hudson, Mobile, AL, Andrew C. Rose, John L. Greenthal, Nixon, Hargrave, Devans & Doyle, Albany, NY, for Hutton Advantaged Properties Ltd., H/R Special Ltd. Partnership.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HAND, Senior District Judge.

This action is before the court on several summary-judgment motions.

Redwing Carriers, Inc., ("Redwing") brought this action primarily under 42 U.S.C. §§ 9607(a) and 9613(f), part of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Pursuant to 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 9613(g)(2), this Florida corporation seeks to recover necessary costs it has incurred or will incur in responding to the release or threatened release of hazardous substances on real property in Saraland, Alabama, property which Redwing formerly owned and on which the Saraland Apartments now stand.

The defendants are:

• Saraland Apartments, Ltd., ("Saraland Limited") an Alabama limited partnership which owns the Saraland Apartments and the real property on which they are located ("the site"); Michael Coit and Christopher Weil, as legal representatives of the estate of Robert Coit, a general partner in Saraland Limited from 1984 until his death; and the Roar Company, a Texas corporation of which Robert Coit was president and the majority stockholder and which has been a general partner in Saraland Limited since 1984. These defendants are the "Saraland defendants";

• Hutton Advantaged Properties, Ltd., and H/R Special Limited Partnership, Ltd., both Massachusetts limited partnerships and both limited partners in Saraland Limited. These are the "Hutton defendants";

• Marcrum Management Company ("Marcrum"), an Alabama corporation which has been involved in the management of the Saraland Apartments since 1980; and

• Meador Contracting Company, Inc., ("Meador") an Alabama corporation which built the Saraland Apartments in the 1970s.¹

I. THE STATUTE

CERCLA authorizes suit against:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release.

42 U.S.C. § 9607(a) (emphasis added); see United States v. Fleet Factors Corp., 901 F.2d 1550, 1553-54 (11th Cir.1990), cert. denied, 498 U.S. 1046, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991); Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1317 (11th Cir.1990).

CERCLA defines "release" as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment," 42 U.S.C. § 9601(22), with exceptions not relevant in this action. See id. A "disposal" is a

discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous substance into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.

Id. § 9601(29) (adopting the definition found in id. § 6903(3)).²

Those responsible under the statute are liable for necessary costs which are consistent with a national contingency plan and which other persons have incurred, id. § 9607(a)(4)(B), and damages for injury to, destruction of, or loss of natural resources, including reasonable costs for assessing such injury, destruction, or loss. Id. § 9607(a)(4)(C).³

As the Eleventh Circuit has twice stated, "the essential policy underlying CERCLA is to place the ultimate responsibility for cleaning up hazardous waste on `those responsible for problems caused by the disposal of chemical poison.'" Fleet Factors, 901 F.2d at 1553 (quoting Florida Power, 893 F.2d at 1317; United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1377 (8th Cir. 1989); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir.1986)); see also In re Bell Petroleum Servs., Inc., 3 F.3d 889, 897 (5th Cir.1993) (one purpose of CERCLA is to shift environmental clean-up costs to parties who benefited from the disposal of the wastes that caused the harm (citing United States v. Chem-Dyne Corp., 572 F.Supp. 802, 805-06 (S.D.Ohio 1983))).

Defenses to § 9607(a) are in § 9607(b). There shall be no liability ... for a person ... who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by ... an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant ... if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions.

42 U.S.C. § 9607(b)(3).⁴

CERCLA further provides that

Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under ... section 9607(a). In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.

Id. § 9613(f)(1).

II. BACKGROUND

1. Redwing operated a trucking terminal on the Saraland, Alabama, site in question from 1961 to 1972. Redwing sold the site to Harrington, Inc., in 1971 which in turn sold the site to Apartments, Inc., later in 1971. In 1973, Apartments, Inc., sold the site to Saraland Limited,⁵ which contracted with Meador to build the apartment complex. In 1984, Robert Coit and the Roar Company became general partners and the Hutton defendants became limited partners in Saraland Limited. Together, Coit's estate and the Roar Company have a 1 percent interest in Saraland Limited. The Hutton defendants together have a 99 percent interest in Saraland Limited, 98.99 percent for Hutton Advantaged Properties, Ltd., and 0.01 percent for H/R Special Limited Partnership, Ltd.

2. While Redwing operated a trucking terminal at the site, its trucks routinely carried such substances as asphalt, herbicides, and tall oil.⁶ Unused asphalt was sometimes dumped into a pit on the site.⁷ Hazardous⁸ substances which Redwing disposed of and otherwise released at the site mixed with the asphalt,⁹ creating a black tar-like substance¹⁰ laden with hazardous substances. Some of the disposal and release occurred when Redwing washed its trucks¹¹ and routed waste into pits or ditches.¹² To contain hazardous substances washed from the trucks, Redwing built levees. In so doing, it used heavy equipment to move earth, thereby moving any hazardous substances near the levees and mixing them with surrounding soil.¹³ Redwing also spread asphalt onto the ground six to eight inches deep, mixed in concrete and broken bricks,¹⁴ graded the area, and spread cracked oyster shells from time to time.¹⁵ The EPA alleges the release of hazardous substances at the site contaminated the groundwater.¹⁶

3. EPA aerial photographs taken when Redwing owned the site reveal "tank trailers, a bermed area, vertical tanks, standing liquids, ground stains, disturbed ground, channelized drainage and vegetation stress" but no drums, tanks, injection wells, visible leakage, or leachate.¹⁷

4. Redwing has found no evidence to indicate that when it sold the site, it informed the buyers of the presence of hazardous substances, despite having searched for such evidence now and again over the course of seven years,¹⁸ but to some extent the presence of hazardous substances was public knowledge.¹⁹ When a contractor who bid on construction work for the Saraland Apartments but did not receive a contract visited the site in 1971,²⁰ he saw some asphalt which was to be removed²¹ but did not know that it was dangerous.²²

5. In 1984, the Alabama Department of Environmental Management ("ADEM") responded to complaints from...