Redwing Carriers, Inc. v. Saraland Apartments

• Decision Date: 12 September 1996
• Docket Number: No. 95-6198,95-6198
• Citation: 94 F.3d 1489
• Parties: , 140 A.L.R. Fed. 691, 65 USLW 2200, 27 Envtl. L. Rep. 20,028 REDWING CARRIERS, INC., Plaintiff-Counter-defendant-Appellant, v. SARALAND APARTMENTS, Roar Company, Defendants-Counter-claimants-Appellees, Michael Coit, in his capacity as legal representative of the Estate of Robert Coit, Christopher M. Weil, in his capacity as legal representative of the estate of Robert Coit, Marcrum Management Company, et al., Defendants-Appellees, Robert Coit, Defendant-Counter-claimant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1489

94 F.3d 1489

43 ERC 1196, 140 A.L.R. Fed. 691, 65

USLW 2200,

27 Envtl. L. Rep. 20,028

REDWING CARRIERS, INC., Plaintiff-Counter-defendant-Appellant, v. SARALAND APARTMENTS, Roar Company Defendants-Counter-claimants-Appellees Michael Coit, in his capacity as legal representative of the Estate of Robert Coit, Christopher M. Weil, in his capacity as legal representative of the estate of Robert Coit Marcrum Management Company, et al., Defendants-Appellees Robert Coit, Defendant-Counter-claimant.

No. 95-6198.

United States Court of Appeals, Eleventh Circuit.

Sept. 12, 1996.

F. Edwin Hallman, Jr., David C. Moss, Decker & Hallman, Atlanta, GA, David A. McKay, Beveridge & Diamond, P.C., Washington, DC, for appellant.

Christopher M. Weil, Weil & Petrocchi, P.C., Dallas, TX, Wesley Pipes, Lyons, Pipes & Cook, P.C., Mobile, AL, for Saraland Apts.

C. Richard Wilkins, Thomas E. Sharp, III, Vickers, Riis, Murray & Curran, Mobile, AL, for Meador Contracting Co.

Andrew C. Rose, John L. Greenthal, Nixon Hargarave, Devans & Doyle LLP, Albany, NY, for Hutton Advantaged Properties, Ltd. and H/R Special Limited Partnership, Ltd.

Brock B. Gordon, Johnstone, Adams, Bailey, Gordon and Harris, Mobile, AL, for Marcrum Management Company.

Appeal from the United States District Court for the Southern District of Alabama.

Before DUBINA and BLACK, Circuit Judges, and MARCUS ^*, District Judge.

BLACK, Circuit Judge:

Redwing Carriers, Inc. (Redwing) appeals the district court's grant of summary judgment in favor of Appellees Saraland Apartments, Ltd., Michael Coit and Christopher Weil, Roar Company, Hutton Advantaged Properties Ltd., H/R Special Limited Partnership, Marcrum Management Company and Meador Contracting Company. Redwing sued the Appellees claiming they are liable under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA or "the Act") for response costs Redwing has incurred in cleaning up a Superfund Site in Saraland, Alabama. Redwing argues the district court committed numerous errors in rejecting its CERCLA claims and allocating the entire cost of cleaning up the Site to Redwing. As discussed below, we affirm in part, reverse in part, and remand.

I. BACKGROUND

The Redwing Carriers, Inc. (Saraland) Site is a 5.1-acre parcel of land located within the southern Alabama community of Saraland. From 1961 to 1972, Redwing operated a trucking terminal on the property. Redwing was in the business of hauling materials used in construction and other industries, and trucks passing through the Saraland terminal carried substances such as asphalt, tail oil, and molten sulfur. At the terminal, trucks were cleaned out, and the waste water permitted to drain onto the property. Redwing built levees on the Site to contain the waste water runoff and dumped excess asphalt directly into pits dug out of the ground. As a result of Redwing's activities, the ground at the Site became contaminated with hazardous chemicals which have combined to form a black, tar-like toxic substance.

In 1971, Redwing sold the Site to Harrington, Inc., which in turn sold the property to Apartments, Inc., later that year. In March 1973, Saraland Apartments, Ltd. ("Saraland Limited" or "the Partnership") purchased the property from Apartments, Inc. At the time, Ralph C. Harrington, A.B. Meador, E.L. MacDonald, and W.D. Bolton were partners in Saraland Limited. The Partnership promptly hired Meador Contracting Company (Meador) to build an apartment complex on the Site. ¹ As part of the construction, Meador had to grade, excavate and fill the ground on the property. During the grading and excavating, Meador's subcontractor encountered patches of contaminated soil and deposits of the tar-like substance buried by Redwing. Meador completed construction of the Saraland Apartments complex in May 1974.

Construction of the complex was subsidized by the United States Department of Housing and Urban Development (HUD) to provide low-income housing. In 1980, Saraland Limited hired Marcrum Management Company (Marcrum) as its "management agent" for the property. According to Marcrum, it provides administrative support to the Partnership to assure the Partnership conforms with federal regulations governing HUD-subsidized properties. Marcrum denies Redwing's claim that the company is the daily, on-site manager of the property.

Redwing further alleges that after Marcrum assumed management of Saraland Apartments, two events caused a dispersal of contaminated soil at the Site. In 1986, the complex's parking lot was repaved. In 1991, contractors hired by Marcrum performed maintenance work on an underground gas line on the property. To access the pipeline, workers dug up soil at specific locations along the pipeline.

Saraland Limited first became aware of tar seeping to the surface of the property in 1977. HUD noted tar in several areas of the complex during a July 1983 inspection. In an August 1984 inspection report, HUD again cited tar surfacing in various locations in the complex. By this time, residents of Saraland Apartments had been complaining about tar problems for several years.

In October 1984, a group of investors bought out the original partners in Saraland Limited. Robert Coit and Roar Company (Roar) ² purchased a 1% general partnership interest in the Partnership. ³ Hutton Advantaged Properties, Ltd. and H/R Special Limited Partnership (collectively, "the Hutton partners") purchased the remaining 99% interest and became limited partners in Saraland Limited.

Under the amended partnership agreement signed in 1984, Coit and Roar are responsible for managing the business of the Partnership. The limited partners, however, possess certain rights giving them a measure of control over the Partnership's affairs. For example, H/R Special Partnership may force the Partnership to sell the apartment complex and may veto any proposed sale of the property. H/R Special Partnership must likewise consent to any extended management contract for the complex or any change in the managing agent. ⁴

In 1985, Redwing entered into an "administrative order by consent" with the Environmental Protection Agency (EPA) agreeing to monitor the Site for tar seeps and to remove any seeps that appeared. Redwing bound itself in a second consent order in July 1990 to perform the remedial investigation/feasibility study for the property. Redwing claims it has spent approximately $1.9 million in investigating and cleaning up the Site.

Redwing filed this suit seeking to recoup these costs. Redwing alleged the Partnership, Coit, Roar, the Hutton partners, Marcrum, and Meador were liable under §§ 113(f) and 107(a) of CERCLA for the costs Redwing has incurred and will incur in the future in cleaning up the Site. Redwing also sought relief under several state law theories. The Partnership, Coit, Roar, and the Hutton partners alleged counterclaims against Redwing for contribution under § 113(f) of CERCLA. These defendants also brought claims under Alabama law seeking recovery from Redwing for property damage caused by Redwing's burial of toxic chemicals on the Site.

In time, Redwing and the Appellees filed cross-motions for summary judgment on the CERCLA and state law claims. ⁵ With the exception of Redwing's claim against Saraland Limited, the district court denied Redwing's motion for summary judgment on its CERCLA claims. Redwing Carriers, Inc. v. Saraland Apartments, Ltd., 875 F.Supp. 1545, 1555-67 (S.D.Ala.1995). The court granted the other appellees' cross-motions for summary judgment on their liability under CERCLA. Id. The Partnership, as the current owner of the Site, conceded it was a "covered person" within the meaning of subsection 107(a)(1) of CERCLA and hence potentially responsible for response costs. Id. at 1566-67. The district court, however, granted the Partnership's motion for summary judgment on its contribution claim under § 113(f) of CERCLA. Id. at 1569. The court then allocated 100% of the response costs to Redwing, thereby absolving the Partnership of any responsibility under CERCLA. Id. Redwing appeals the district court's denial of its motion for summary judgment on its CERCLA claims as well as the court's allocation of costs under § 113(f).

II. STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo. Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th Cir.1994), cert. denied, 513 U.S. 1113, 115 S.Ct. 906, 130 L.Ed.2d 788 (1995). A motion for summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). An issue of fact is "genuine" if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is "material" if it might affect the outcome of the case under the governing law. Id.

III. DISCUSSION

In its amended complaint, Redwing alleged separate claims against the Appellees under §§ 107(a) and 113(f) of CERCLA, 42 U.S.C. §§ 9607(a) and 9613(f). As a matter of law, however, Redwing's CERCLA claims against the Appellees are claims for contribution governed by § 113(f). To bring a cost recovery action based solely on § 107(a), Redwing would have to be an innocent party to the contamination of the Saraland Site. See United Technologies Corp. v. Browning-Ferris Indus., 33 F.3d 96, 99-100 (1st Cir.1994), cert. denied, 513 U.S. 1183, 115 S.Ct. 1176, 130 L.Ed.2d 1128 (1995); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994). Redwing cannot claim such...