Briggs & Stratton Corp. v. Concrete Sales & Services
| Decision Date | 28 September 1998 |
| Docket Number | No. 5:95-cv-525-1 (WDO).,5:95-cv-525-1 (WDO). |
| Parties | BRIGGS & STRATTON CORPORATION, a Wisconsin corporation, Plaintiff, v. CONCRETE SALES & SERVICES, et al., Defendants, v. PEACH METAL INDUSTRIES, INC., et al., Third-Party Defendants. |
| Court | U.S. District Court — Middle District of Georgia |
Daniel S. Reinhardt, David C. Vigilante, Atlanta, GA, for Briggs & Stratton Corporation, plaintiff.
Linwood Robert Lovett, J. Douglas Cowart, Macon, GA, for Concrete Sales and Services, Inc., A Georgia Corporation, defendant.
Linwood Robert Lovett, Macon, GA, Craig N. Cowart, Macon, GA, for Frances M. Coody, defendant.
Linwood Robert Lovett, J. Douglas Cowart, Macon, GA, Craig N. Cowart, Macon, GA, for Timothy A. McCord, defendant.
Robert C. Norman, Jr., Macon, GA, for Turner Ashby McCord, Jr., defendant.
Alvin E. DeGraw, Jr., Fort Valley, GA, pro se.
Edward H. Lindsey, Jr., Kathryn A. Cater, Atlanta, GA, for South Carolina Insurance Company, intervenor-defendant.
Michael Morgan Smith, Macon, GA, for Peach Metal Industries, Inc., third-party defendant.
William Michael Peterson, Warner Robins, GA, Ann H. DeGraw, Fort Valley, GA, for Ann H. DeGraw, as executrix of the Estate of Alvin E. DeGraw, Sr., third-party defendant.
Thomas W. Rhodes, Edward H. Wasmuth, Jr., Atlanta, GA, for Blue Bird Body Co. and Cardinal Mfg. Co., third-party defendant.
F. Kennedy Hall, Macon, GA, Thomas T. Terp, J. Steven Justice, Cincinnati, OH, for Allied Chemical Corp. and Thiokol Corp., third-party defendant.
Carey M. Johnson, Joyce F. Mocek, Shawn M. Willette, Atlanta, GA, for Simplex Nails, third-party defendant.
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff, Briggs & Stratton Corporation, has filed a motion for partial summary judgment as to Counts I, II, III, V, VIII, IX, and X of its complaint and amended complaint1 seeking contribution and indemnity for environmental clean-up costs against defendants Concrete Sales & Services, Inc. ("Concrete Sales"), Frances M. Coody and Timothy A. McCord, as Trustees for the Irrevocable trust of T.A. McCord, Jr. ("the Trustees"), Turner Ashby McCord, Jr. (referred to hereinafter as "T.A. McCord"), and Timothy A. McCord in his individual capacity. These individuals or entities will be sometimes referred to in this opinion as "the McCord defendants."
As to Concrete Sales and the Trustees, plaintiff Briggs & Stratton seeks summary judgment as to defendants' liability on Count I (CERCLA), Count II (HSRA), Count III (breach of contract), Count V (RCRA), and Count VIII (piercing the corporate veil). As to T.A. McCord, plaintiff seeks summary judgment on Count I (CERCLA), Count II (HSRA), and Count V (RCRA). As to Timothy A. McCord individually, plaintiff seeks summary judgment on Count IX of the amended complaint (CERCLA) and Count X of the amended complaint (HSRA). T.A. McCord has filed a cross-motion for summary judgment against Briggs & Stratton.
Third-party defendant Peach Metal Industries, Inc. ("PMI") leased from defendant T.A. McCord a site on Boy Scout Road in Byron, Georgia, from approximately 1971 until September of 1987. Alvin E. DeGraw, Sr., began the business in the early 1970s, and his son Alvin E. DeGraw, Jr., was an employee of PMI beginning in 1975 and an officer and shareholder from 1979 until PMI closed in 1987.
Defendant T.A. McCord purchased the property on which PMI operated its business from the United States Air Force on July 17, 1967. On November 30, 1984, T.A. McCord transferred title to the property to an irrevocable trust ("the McCord Trust" or "the Trust") set up by T.A. McCord for the benefit of his children and grandchildren and managed by his children Frances M. Coody and Timothy A. McCord as Trustees. On September 18, 1987, the Trustees sold the property to defendant Concrete Sales, Inc. ("Concrete Sales"), a corporation set up by the McCord defendants. The sole shareholder of Concrete Sales was the McCord Trust. Its directors were T.A. McCord, Timothy A. McCord, and Frances Coody, and its president was Timothy McCord. Title to the property is presently held by Peach County, Georgia, the property having been sold for taxes at a sheriff's tax sale on February 14, 1992.
During the time period it leased the site from T.A. McCord, PMI generated hazardous wastes from its operation of a metal plating and finishing business. PMI performed zinc electroplating, cadmium electroplating, and aluminum anodizing at various times during its operations. Through May 30 of 1978 it used a cyanide zinc electroplating method utilizing cyanide salts, and throughout the remainder of its operations it used an acid chloride zinc plating method using potassium chloride or zinc chloride, boric acid, and zinc oxide. It also used nitric acid, hydrogen peroxide, and sulfuric acid in its plating process. Beginning in the early 1980s PMI conducted a black oxide process which used a heated caustic soda (sodium hydroxide) solution. The electroplating and black oxide processes generated various types of waste waters and sludges which contained residues from the various cleaning, plating and chromium conversion coating stages.
The Georgia Environmental Protection Division ("EPD") inspected the PMI facility in 1976 and informed PMI that its practice for discharging waste waters — which involved routing them through the old inoperational sanitary sewage system located on the property and discharging them onto the site with the runoff flowing offsite — was not suitable. PMI retained an engineering firm to design a discharge method suitable to EPD. The plan approved by EPD called for treatment of the waste waters to remove chromium, zinc and cyanide prior to discharge to a surface impoundment to prevent any offsite discharge. PMI constructed two lagoons or surface impoundments at the subject property and began to discharge its waste waters to them. However, PMI never implemented the waste water treatment steps required by the plan approved by EPD, and EPD did not follow through to insure that the waste water treatment plan was implemented. Thus, waste waters at times overflowed onto the property after the surface impoundments were constructed. PMI also failed to remove sludge which formed on the surface impoundments and contained substances such as cadmium, barium, lead, cyanide, and chromium. PMI did occasionally remove sludge from its electroplating tanks, which it stored in drums at the site.
In April and May of 1987 EPD again investigated PMI and concluded that the company was in violation of the Georgia Hazardous Waste Management Act and Rules. EPD issued a Notice of Violation to PMI which stated that PMI's electroplating operations generated hazardous wastes as defined under the U.S. Environmental Protection Agency's hazardous waste management regulations at 40 C.F.R. Part 261, that PMI's waste water discharge practices qualified the site as a hazardous waste storage, treatment and disposal facility, and that PMI had violated certain provisions of EPD's Hazardous Waste Management Rules. EPD proposed a consent order for execution by PMI to resolve the violations.
Alvin DeGraw, Jr., of PMI met with EPD on August 7, 1987, to discuss the work proposed under the consent order. After obtaining estimates for the cost of the work, he ultimately determined that PMI would not be financially able to comply with EPD's requirements. Thereafter PMI closed its business, ceased operations, and filed for bankruptcy protection.
In 1985 plaintiff Briggs & Stratton had closed business operations on a site it operated in Perry, Georgia. Briggs & Stratton had originally indicated to EPD in its closure plan that chemicals and plating solution at the Perry plant would be shipped to and used by its Milwaukee plant. On March 27, 1991, EPD issued a notice of violation to Briggs & Stratton after the company shipped containers of hazardous waste and chemicals containing hazardous substances to PMI and the PMI site. The shipments by plaintiff to PMI rendered plaintiff subject to liability under CERCLA as an "arranger" for the disposal of "hazardous substances," 42 U.S.C. § 9607(a)(3), and as a responsible party under 42 U.S.C. § 9613(f).2 Defendants have briefed the court at length concerning plaintiff's shipments of hazardous waste to PMI and the extent of its culpability for contributing to the hazardous constituents on the property. The extent of plaintiff's liability insofar as it relates to a determination of the proper allocation of costs among all responsible parties is not yet before the court, however. The motion for partial summary judgment on plaintiff's claim for contribution under CERCLA and T.A. McCord's motion for summary judgment are directed only toward the issue of liability, with the extent of that liability and damages to be determined at a later date.
Briggs & Stratton asserts that Timothy McCord met with DeGraw, Jr. on at least two occasions before PMI closed its business. According to plaintiff, the first meeting at the site was sometime after the EPD's inspection of the property in May, when DeGraw, Jr. told Timothy McCord that EPD had conducted two inspections of PMI's operations and that PMI was investigating what work would be required to satisfy EPD's requirements. Plaintiff submits that the two parties met again on at least one other occasion after DeGraw, Jr.'s August 17, 1987 meeting with EPD but before PMI closed its business; at that meeting DeGraw, Jr. told Timothy McCord about EPD's concern as to the environmental contamination at the site and advised him that PMI was not financially able to undertake correction of the environmental problems and would have to close the business. DeGraw, Jr. also testified that he offered...
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