Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc.

• Decision Date: 06 March 1992
• Docket Number: ARKANSAS-PLATTE,No. 91-1085,91-1085
• Citation: 959 F.2d 158
• Parties: , 60 USLW 2595, 22 Envtl. L. Rep. 20,995, Prod.Liab.Rep. (CCH) P 13,075 & GULF PARTNERSHIP, a Colorado general partnership, Plaintiff-Appellee, v. VAN WATERS & ROGERS, INC., a Washington corporation; the Dow Chemical Company, a Delaware corporation, Defendants-Appellants. National Agricultural Chemicals Association; Western Agricultural Chemicals Association; National Pest Control Association; National Agricultural Aviation Association; Chemical Specialties; American Wood Preservers Institute; Chemical Manufacturers Association; Product Liability Advisory Council, Inc.; Trial Lawyers for Public Justice, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 158

959 F.2d 158

34 ERC 1807, 60 USLW 2595, 22 Envtl.

L. Rep. 20,995,

Prod.Liab.Rep. (CCH) P 13,075

ARKANSAS-PLATTE & GULF PARTNERSHIP, a Colorado general partnership, Plaintiff-Appellee, v. VAN WATERS & ROGERS, INC., a Washington corporation; the Dow Chemical Company, a Delaware corporation Defendants-Appellants National Agricultural Chemicals Association; Western Agricultural Chemicals Association; National Pest Control Association; National Agricultural Aviation Association Chemical Specialties; American Wood Preservers Institute Chemical Manufacturers Association; Product Liability Advisory Council, Inc.; Trial Lawyers for Public Justice, Amici Curiae.

No. 91-1085.

United States Court of Appeals, Tenth Circuit.

March 6, 1992.

Richard R. Young (Brent E. Rychener and Walter H. Sargent, with him on the briefs) of Holme Roberts & Owen, Colorado Springs, Colo., for plaintiff-appellee.

David A. Bailey (Dean R. Massey and Anne D. Weber, with him on the briefs) of Parcel, Mauro, Hultin & Spaanstra, P.C., Denver, Colo., for defendant-appellant, Van Waters & Rogers, Inc.

C. Michael Montgomery (Peter S. Dusbabek, Montgomery, Green, Jarvis, Kolodny & Markusson, Denver, Colo., and Edward B. Fitzpatrick, III, The Dow Chemical Co., Midland, Michigan, with him on the briefs), of Montgomery, Green, Jarvis, Kolodny & Markusson, Denver, Colo., for defendant-appellant, The Dow Chemical Co.

Lawrence S. Ebner, McKenna & Cuneo, Washington, D.C., Charles S. Siegel, Baron & Budd, P.C., Dallas, Tex., and Arthur H. Bryant and Priscilla Budeiri, Trial Lawyers for Public Justice, Washington, D.C., on the briefs, for amici curiae.

Before LOGAN and MOORE, Circuit Judges, and ALLEY, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

In 1985 plaintiff Arkansas-Platte & Gulf (AP & G) succeeded to ownership of property in Colorado which previously had been occupied by a wooden fence-post treatment facility. That facility used a pentachlorophenol product, "Dowicide 7," from approximately 1960 to 1972. In 1987, an AP & G employee was diagnosed with pentachlorophenol poisoning. AP & G filed suit in 1989 against Van Waters & Rogers and The Dow Chemical Company as pentachlorophenol manufacturers or distributors, asserting Colorado state tort claims of negligence and strict liability based on a failure to warn of the product's environmental hazards. Dow and Van Waters & Rogers moved for summary judgment, asserting the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 (FIFRA), preempts state common law tort claims based on labeling. The district court denied summary judgment, holding there was no express or implied preemption by FIFRA of state tort claims based on negligent failure to warn. Arkansas Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 748 F.Supp. 1474, 1482, 1484 (D.Colo.1990).

On motion of the defendants, the district court certified this question for interlocutory appeal. We may take interlocutory appeals when there is a substantial question of law and an immediate appeal will materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). We review motions for summary judgment de novo. City of Chanute, Kan. v. Williams Natural Gas Co., 955 F.2d 641, 647 (10th Cir.1992). See also Barnson v. United States, 816 F.2d 549, 552 (10th Cir.), cert. denied, 484 U.S. 896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987). If no genuine issue of material fact exists, we determine if the substantive law was correctly applied. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990), citing Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). There is no dispute of fact on the preemption issue before us. The parties disagree about (1) what body of FIFRA law should be applied, and (2) whether state law is preempted. We reverse the denial of summary judgment to the defendants, and hold FIFRA impliedly preempts state tort actions based on labeling and alleged failure to warn.

I. APPLICABLE LAW

AP & G argues its claims originate from actions occurring from 1960 to 1972, and thus FIFRA provisions enacted in 1972 cannot affect defendants' pre-exposure duties. In the alternative, AP & G asserts neither the 1947 Act nor the 1972 amendments preempt state common law failure to warn claims, and the distinction is unimportant. We disagree with both arguments.

While pre-1972 FIFRA law concerning labeling is similar to the legal regime set forth in the 1972 amendments, it is not identical. FIFRA was enacted in 1947 as a licensing and labeling statute replacing the Insecticide Act of 1910. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S.Ct. 2862, 2866, 81 L.Ed.2d 815 (1984). The 1947 Act gave the Agriculture Department authority to regulate, register, and label "economic poisons and devices." Kennan v. Dow Chem. Co., 717 F.Supp. 799, 804 (M.D.Fla.1989). There was no provision in the 1947 Act, however, specifically restricting state authority over pesticide labels.

In contrast, the 1972 amendments significantly strengthened the Act's registration and labeling standards, constructing a comprehensive regulatory regime. Wisconsin Pub. Intervenor v. Mortier, --- U.S. ----, 111 S.Ct. 2476, 2480, 115 L.Ed.2d 532 (1991), citing Ruckelshaus, 467 U.S. at 991, 104 S.Ct. at 2867. The 1972 provisions sought to "regulate the use of pesticides to protect man and his environment," and "extend Federal pesticide regulations to actions entirely within a single State." Kennan, 717 F.Supp. at 804, citing S.Rep. No. 92-838, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 3993. Section 136v, addressing the "authority of states" provides:

(a) In general

A State may regulate the sale or use of any federally registered pesticide ... in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

(b) Uniformity

Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.

7 U.S.C. § 136v(a), (b) (emphasis added).

A plain reading of the statute indicates an intent to maintain the traditional police powers of the states in the general grant of authority to "regulate the sale or use" of pesticides, § 136v(a), and a more specific intent to occupy the field in labeling and packaging, § 136v(b). Section 136v(c) further examines the states' prerogatives for registering pesticides for uses to meet special local needs. Clearly if the 1947 Act did not specifically restrict state authority over labeling, the 1972 amendments instruct a different interpretation of the preemption of state law.

Like the district court, we find plaintiff's contention that we should apply pre-1972 FIFRA law unavailing. AP & G relies on DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991), arguing the application of current FIFRA law to past events would present a question of retroactivity. DeVargas addressed the retroactive application of statutory amendments which became effective during the pendency of that litigation. The court held in the absence of clear congressional intent instructing retroactive application, the law should be applied prospectively. DeVargas, 911 F.2d at 1388, 1393. ¹

If this case presented a question of retrospective application of a statute, we would indeed apply DeVargas. The issue here, however, does not concern retroactivity, but rather when plaintiff's cause of action arose. Our examination of the claim leads us to conclude it arose after 1972. AP & G acquired its property in 1985, found the property contaminated in 1987, and filed suit in 1989. Even were we to assume plaintiff's cause of action ripened prior to 1972, we have said it is "fundamental" that "a statute is not rendered retroactive merely because the facts or requisites upon which its subsequent action depends are drawn from a time antecedent to the enactment." Lohf v. Casey, 466 F.2d 618, 620 (10th Cir.1972), citing Cox v. Hart, 260 U.S. 427, 43 S.Ct. 154, 67 L.Ed. 332 (1922). DeVargas is therefore not on point.

Furthermore, any jury award on claims arising from a duty to label or warn has an impact on FIFRA as it presently exists. As the court stated in Kennan v. Dow Chem. Co., "[w]hether or not the decedent was exposed prior to 1972 does not negate the fact that a jury award today would constitute regulation by causing manufacturers to change their labels.... Congress has expressly preempted such regulation by the states." 717 F.Supp. at 811. We therefore apply FIFRA as amended.

II. PREEMPTION DOCTRINE

The preemption doctrine is based on the Supremacy Clause of Article Six of the Constitution. U.S. Const. art. VI, cl. 2. The Supremacy Clause invalidates state laws that "interfere with, or are contrary to" federal law. Hillsborough County, Fla. v. Automated Medical Labs., Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985), citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23 (1824) (Marshall, C.J.). The burden of proving preemption is on defendants, who must show Congress meant FIFRA to preempt state tort claims based on failure to warn.

Preemption turns on the intent of Congress and on the effect of the conflicting rule. Intent may be express, Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977), or inferred when Congress has chosen to occupy a particular field and "a scheme of federal regulation is 'so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.' " Wisconsin Pub. Intervenor v. Mortier, 111 S.Ct. at 2481, citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Even when the field is not occupied, we may still infer preemption to the extent state and federal...