Florida Power & Light Co. v. Allis Chalmers Corp.

• Decision Date: 09 February 1990
• Docket Number: No. 88-5836,88-5836
• Citation: 893 F.2d 1313
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: , 58 USLW 2539, 15 Fed.R.Serv.3d 1331, 20 Envtl. L. Rep. 20,523 FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Plaintiff-Appellant, v. ALLIS CHALMERS CORPORATION, Central Moloney Inc., General Electric Company, Kuhlman Electric Company, McGraw Edison, Inc., R.T.E. Corporation, Wagner Electric Inc. and Westinghouse Electric Corporation, Defendants-Appellees, Pepper's Steel & Alloys, Inc., Intervenor-Appellant, Norton Bloom, Thomas A. Curtis, William U. Payne, Flora B. Payne and Lowell Payne, Intervenors.

Page 1313

893 F.2d 1313

31 ERC 1134, 58 USLW 2539, 15

Fed.R.Serv.3d 1331,

20 Envtl. L. Rep. 20,523

FLORIDA POWER & LIGHT COMPANY, a Florida Corporation Plaintiff-Appellant, v. ALLIS CHALMERS CORPORATION, Central Moloney Inc., General Electric Company, Kuhlman Electric Company, McGraw Edison Inc., R.T.E. Corporation, Wagner Electric Inc. and Westinghouse Electric Corporation, Defendants-Appellees Pepper's Steel & Alloys, Inc., Intervenor-Appellant Norton Bloom, Thomas A. Curtis, William U. Payne, Flora B. Payne and Lowell Payne, Intervenors.

No. 88-5836.

United States Court of Appeals, Eleventh Circuit.

Feb. 9, 1990.

Norman A. Coll, Coll, Davidson, Carter, Smith, Salter & Barkett, Miami, Fla., for plaintiff-appellant.

R. Hugh Lumpkin, Keith, Mack, Lewis, Allison & Cohen, Miami, Fla., William Michael Martin, Peterson & Bernard, Ft. Lauderdale, Fla., for Pepper's Steel & Alloy's.

Stephen D. Ramsey, Sidley & Austin, Christopher L. Bell, Washington, D.C., Thomas M. Burke, Rumberger, Kirk, Caldwell, Cabaniss, Burke & Wechsler, P.A., M. Steven Smith, III, Orlando, Fla., for General Elec.

Love Phipps, Corlett, Killian, Hardeman, McIntosh & Levy, David McIntosh, Richard M. Leslie, Shutts & Bowen, Miami, Fla., for Allis Chalmers.

David A. Baker, Foley & Lardner, Orlando, Fla., for Central Moloney, Inc.

James M. Porter, Squire, Sanders & Dempsey, Miami, Fla., for McGraw Edison & Wagner Elec.

R. Benjamine Reid, Kimbrell & Hamann, Miami, Fla., for Westinghouse Elec. Corp.

Richard Fred Lewis, Magill & Lewis, Miami, Fla., for RTE Corp.

H.G. Sparrow III, Detroit, Mich., for Kuhlman.

David C. Shilton, Washington, D.C., for Amicus--U.S.

Donald W. Fowler, Spriggs & Hollingsworth, Washington, D.C., for Amicus--Plac.

Appeals from the United States District Court for the Southern District of Florida.

Before HATCHETT and EDMONDSON, Circuit Judges, DYER, Senior Circuit Judge.

HATCHETT, Circuit Judge:

In this appeal, we discuss the extent to which the manufacturer of a useful product, or any other party, may be liable, under the Comprehensive Environmental Response Compensation, and Liability Act (42 U.S.C. Sec. 9607(a)(3)), because the party "arranged for" the treatment or disposal of a hazardous substance. We affirm the district court.

FACTS

Appellees, General Electric Company, Kuhlman Electric Company, McGraw Edison Inc., R.T.E. Corporation, Wagner Electric, Inc., and Westinghouse Electric Corporation, (hereinafter "the manufacturers") manufactured transformers as part of their regular business operations. In accordance with their design, the transformers involved in this dispute contained mineral oil. Contrary to their design, however, the mineral oil contained traces of a hazardous substance, polychlorinated biphenyls ("PCB's"). ¹

Florida Power and Light ("FP & L") purchased the transformers from the manufacturers and used them in the course of its business for about forty years. At the end of their useful life, FP & L sold the transformers to Pepper's Steel and Alloys, Inc. ("Pepper's") as scrap. Pepper's salvaged the transformers for recovery of various metals and oil at its disposal site in Medley, Dade County, Florida. At the time of purchase, Pepper's did not know that the transformers contained PCB-contaminated mineral oil. During Pepper's reclamation process, some of the PCB-contaminated oil spilled contaminating the Pepper's site. In 1983, the Environmental Protection Agency ("EPA") and the Florida Department of Environmental Regulations ("DER") sued Pepper's, FP & L, and other owners of the site for removal of the hazardous waste. See United States v. Pepper's Steel & Alloys, Inc., No. 83-1717 (S.D.Fla.). In 1985, the EPA filed another lawsuit against the same parties seeking recovery of response costs incurred by the EPA in connection with its investigation and removal of hazardous substances, including PCB's, from the Pepper's site and surrounding environment. See United States v. Pepper's Steel Alloys, Inc., No. 85-0571 (S.D.Fla.).

PROCEDURAL HISTORY

In July, 1986, Pepper's and FP & L instituted this lawsuit. Count I of the complaint sought contribution from the manufacturers under the provisions of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. Sec. 9607(a)(3). Approximately two years after Pepper's and FP & L filed this lawsuit, the district court granted summary judgment for the manufacturers.

CONTENTIONS

Pepper's and FP & L contend that the district court erred in granting summary judgment for the manufacturers. Pepper's and FP & L also contend that had they been given additional time for discovery, they would have been able to establish that the manufacturers "arranged" for the disposal of the hazardous waste through sale of the transformers.

The manufacturers contend that because they did not dispose of the materials at the Pepper's site or participate in the disposal decision, they cannot be liable under CERCLA. The manufacturers further contend that even if CERCLA liability applies, the district court properly granted summary judgment in this case because no evidence indicates that they contracted, agreed, or otherwise arranged for the disposal of hazardous wastes.

ISSUES

The issues are (1) whether the district court abused its discretion by denying Pepper's and FP & L additional time to conduct discovery, and (2) whether the district court properly granted summary judgment.

DISCUSSION

A. Standard of Review

We review the district court's denial of a Rule 56(f) motion under the abuse of discretion standard. See Wallace v. Brownell Pontiac-GMC Co., Inc., 703 F.2d 525 (11th Cir.1983). An order granting summary judgment is not discretionary. It must be independently reviewed by the court of appeals. Morrison v. Washington County, Alabama, 700 F.2d 678, 682 (11th Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). Consequently, this court must make a de novo and independent review of the district court's decision to grant summary judgment. Tackitt v. Prudential Insurance Co. of America, 758 F.2d 1572, 1574 (11th Cir.1985).

B. Rule 56(f) Motion

In attacking the motion for summary judgment, Pepper's and FP & L argue that the sale transaction involved more than a mere innocent sale because the manufacturers knew the transformers contained PCB's at the time of sale. Consequently, Pepper's and FP & L contend that the transaction was an arrangement for the disposal of hazardous waste. While Pepper's and FP & L do not have any evidence or affidavits to support this contention, they assert that they would have been able to develop the necessary evidence if they had been allowed further discovery. Recognizing the need to furnish more than mere allegations to defeat the manufacturers' motion, Pepper's and FP & L filed a Fed.R.Civ.P. Rule 56(f) motion seeking additional time for discovery. ²

"Subsection (f) allows a party who 'has no specific material contradicting his adversary's presentation to survive a summary judgment motion if he presents valid reasons justifying his failure of proof' ". Wallace, 703 F.2d at 527. It is clear that Pepper's and FP & L cannot " 'rest on vague assertions that additional discovery will produce needed, but unspecified facts,' but rather must specifically demonstrate 'how postponement of a ruling on the motion will enable [them], by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact.' " Wallace, 703 F.2d at 527. "If the court is satisfied with the nonmovant's explanations, the court may deny the [summary judgment] motion without prejudice or may simply order a continuance." Wallace, 703 F.2d at 527.

In urging that we find an abuse of discretion, Pepper's and FP & L state that additional discovery will show that the manufacturers sold transformers containing hazardous waste rather than incur the expense of cleaning up and disposing of the hazardous waste themselves. They further state that Westinghouse and General Electric knew that the transformers would ultimately need routine maintenance or disposal which would likely result in a disposal of hazardous waste.

The district court is not required to await the completion of discovery before ruling on a motion for summary judgment. As this court has held, it would be inappropriate to limit summary judgment to cases where discovery is complete in light of the valuable role served by summary judgment and the commitment of discovery issues to "the sound discretion of the trial judge." Wallace, 703 F.2d at 528. Before entering summary judgment the district court must ensure that the parties have an adequate opportunity for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In this case, the record indicates that summary judgment was not granted until approximately two years after the complaint was filed. During that time, Pepper's and FP & L were provided with a list of individuals and documents with information relevant to the issues. The parties also agreed on a discovery schedule which the trial court extended on several occasions. In light of the foregoing, we hold that the district court did not abuse its discretion in denying the motion for additional time for discovery.

C. CERCLA Liability

Count I of the amended complaint alleges that Pepper's and FP & L are entitled to contribution under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Sec. 9607, and under Fla.Stat.Ann. Sec. 403.727 (1986). ³ An essential purpose of CERCLA is to place the ultimate responsibility for the clean-up of hazardous waste on "those responsible for problems caused by the disposal of chemical poison." United States v. Aceto Agric. Chemicals Corp., 872 F.2d 1373, 1377 (8th Cir.1989) (quoting Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir.1986)).

CERCLA authorizes suit against four...