County Line Inv. Co. v. Tinney

• Decision Date: 24 May 1991
• Docket Number: Nos. 89-5118,89-5119,s. 89-5118
• Citation: 933 F.2d 1508
• Parties: , 60 USLW 2031, 21 Envtl. L. Rep. 21,299 COUNTY LINE INVESTMENT COMPANY and, Wagco Land Development, Inc., Plaintiffs-Appellants, v. Calvin L. TINNEY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1508

933 F.2d 1508

33 ERC 1081, 60 USLW 2031, 21 Envtl.

L. Rep. 21,299

COUNTY LINE INVESTMENT COMPANY and, Wagco Land Development Inc., Plaintiffs-Appellants, v. Calvin L. TINNEY, Defendant-Appellee.

Nos. 89-5118, 89-5119.

United States Court of Appeals Tenth Circuit.

May 24, 1991.

Oliver S. Howard, Dennis C. Cameron, of Gable & Gotwals, and David A. Carpenter, Tulsa, Okl., for plaintiffs-appellants.

Charles W. Shipley, Blake K. Champlin, and Leslie C. Rinn, of Shipley & Schneider, Tulsa, Okl., for defendant-appellee.

Before HOLLOWAY, Chief Judge, and MOORE and BRORBY, Circuit Judges.

PER CURIAM.

These appeals arise out of the closure of a sanitary landfill in Wagoner County, Oklahoma. ¹ The district court granted summary judgment against County Line Investment Company (County Line) and Wagco Land Development, Inc. (Wagco), two current and former landfill owners, in their attempt to recover investigation and closure costs from Calvin L. Tinney, another former landfill owner, under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. Secs. 9601-9675 (1988), and a claim based on the state common law theory of unjust enrichment. County Line Investment Co. v. Tinney, 30 ERC 1062, 1989 WL 237380 (N.D.Okla.1989). Wagco and County Line timely appealed the district court's judgment. We affirm. ²

Background

In February 1978, defendant-appellee Tinney leased property he owned in Wagoner County, Oklahoma to Donald and Norma Tulk for use as a sanitary landfill. The Tulks operated the landfill, known as D & N Landfill, on this property from 1978 until approximately November 1983. During this period, they allegedly permitted waste containing hazardous substances to be placed on the property.

In March 1982, plaintiff-appellant County Line purchased the property containing the D & N Landfill from Tinney. Sometime later, the Tulks began closure activities at the site as required by regulations of the Oklahoma State Department of Health (OSDH) and in cooperation with the OSDH. ³ In early 1984, however, the Tulks abandoned the Landfill before completing closure. County Line was aware of the Tulks' activities and their abandonment of the site and was in communication with OSDH regarding the site during this period. County Line did not complete closure of the Landfill.

In June 1985, County Line conveyed the property encompassing the D & N Landfill to plaintiff-appellant Wagco, another subsidiary of County Line's parent company. In February 1986, Wagco received notice from the U.S. Environmental Protection Agency (EPA) that hazardous substances possibly were being released from the Landfill. Wagco responded in the spring and summer of 1986 by conducting a magnetometer/metal detector survey of the site to locate any hazardous waste drums buried there and by digging and sampling one or more trenches in the areas showing the highest metals concentrations. These efforts were overseen by an EPA contractor. EPA subsequently decided not to take any action at the site.

In November 1986, representatives of Wagco and County Line (collectively "New Owners") met with EPA and OSDH officials to discuss the results of Wagco's investigations. At this meeting, Wagco agreed to undertake a formal closure of the Landfill pursuant to OSDH rules and regulations for sanitary landfills. Wagco contacted Tinney in February 1987 and requested his input and financial participation in developing and implementing the closure and post-closure plan. Tinney refused. Shortly thereafter, Wagco submitted a closure/post-closure plan to the OSDH. ⁴ OSDH accepted the plan, which the New Owners implemented and completed by June 1987. The New Owners' total cost for investigating and closing the Landfill exceeded $360,000.

The New Owners brought this action against Tinney in June 1988. In it, they sought reimbursement for their costs in investigating and closing the Landfill under three theories. First, they alleged that Tinney, as a former owner of the Landfill at a time when hazardous substances were being disposed of there, was jointly and severally liable for these costs under the private cost recovery provisions of CERCLA section 107, 42 U.S.C. Sec. 9607. This section provides, as relevant to this action, that "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 ... shall be liable for ... any ... necessary costs of response incurred by any other person consistent with the national contingency plan." Id. Sec. 9607(a). In a second claim, the New Owners alleged that they were entitled to contribution from Tinney under CERCLA section 113(f)(3)(B), id. Sec. 9613(f)(3)(B), which provides that A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement [with the United States or a State].

Id. Finally, the New Owners asserted an unjust enrichment claim against Tinney under Oklahoma law.

After extensive discovery, Tinney filed a motion for summary judgment as to each of the New Owners' three claims. The district court granted this motion and entered judgment for Tinney on June 30, 1989.

Discussion

The New Owners challenge the district court's entry of summary judgment on each of its three claims. We review the district court's decision on each claim de novo under the standard prescribed by Federal Rule of Civil Procedure 52(c). Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir.1990). We will affirm the district court's grant of summary judgment on each only if we find "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Abercrombie, 896 F.2d at 1230. The party moving for summary judgment has the initial burden of identifying for the trial court the absence of genuine issues of fact, but once this burden is satisfied, summary judgment is mandated if the nonmovant fails to come forward with specific evidence demonstrating a triable issue of fact as to each essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

A. Private cost recovery under CERCLA section 107

The district court entered summary judgment on the New Owners' section 107 claim upon finding that the undisputed evidence established that their costs in investigating and closing the Landfill were not incurred "consistent with the national contingency plan." The national contingency plan (NCP) is a set of regulations promulgated by EPA that "establish[es] procedures and standards for responding to releases of hazardous substances." 42 U.S.C. Sec. 9605; see 40 C.F.R. Part 300 (1988). The version of the NCP in effect during the New Owners' investigation and closure of the Landfill ⁵ stated that:

(a)(1) Any person may undertake a response action to reduce or eliminate the release or threat of release of hazardous substances, or pollutants or contaminants. Section 107 of CERCLA authorizes persons to recover certain response costs consistent with this Plan from responsible parties.

(2) For purposes of cost recovery under section 107 ... a response action will be consistent with the NCP ... if the person taking the response action:

. . . . .

(ii) Where the action is a remedial action:

(A) Provides for appropriate site investigation and analysis of remedial alternatives as required under Sec. 300.68;

(B) Complies with the provisions of paragraphs (e) through (i) of Sec. 300.68 [establishing standards and procedures for choosing a site remedy];

(C) Selects a cost-effective response; and

(D) Provides an opportunity for appropriate public comment concerning the selection of a remedial action consistent with paragraph (d) of Sec. 300.67 [requiring a study outlining alternative remedial measures to be provided to the public for at least a twenty-one day review and comment period] unless compliance with ... State and local requirements ... provides a substantially equivalent opportunity for public involvement in the choice of remedy.

1985 NCP, 40 C.F.R. Sec. 300.71 (1988).

The New Owners admitted in the summary judgment proceedings below that their investigation and closure of the Landfill constituted a "remedial action" ⁶ under the Plan. The district court therefore measured the consistency of their actions against the site investigation, remedy selection, cost-effectiveness and public participation standards and procedures stated for remedial actions in section 300.71(a)(2)(ii) of the 1985 NCP, the NCP in effect at the time the New Owners incurred the costs it now seeks to recover. It found the New Owners' investigation and closure of the Landfill wanting in each of these four areas and hence ordered summary judgment entered against the New Owners on their CERCLA cost recovery claim.

The New Owners first challenge the district court's implicit holding that proof of consistency with the NCP is an element of a prima facie claim to recover private party response costs ⁷ under CERCLA section 107. ⁸ Instead, the New Owners argue, this requirement is only a measure of the damages recoverable under that provision. In so arguing, the New Owners misapprehend the decision below.

The question addressed by the district court was not "how much" damage had plaintiffs suffered, but rather, whether the type of damages alleged was remediable by way of CERCLA. As the district court noted: "Evaluation for conformity with the NCP at this stage of the proceedings is proper, in order to determine whether Plaintiffs...