Dent v. Beazer Materials and Services, Inc.

• Citation: 993 F.Supp. 923
• Decision Date: 28 December 1995
• Docket Number: Civil Action No. 2:89-2851-8.
• Court: U.S. District Court — District of South Carolina
• Parties: H. George DENT, Jr.; Ashley Realty Company, Inc., a South Carolina Corporation; and Southern Dredging Co., Inc., a South Carolina Corporation, Plaintiffs, v. BEAZER MATERIALS AND SERVICES, INC. and Beazer East, Inc., Successors in Interest to Koppers Company, Inc.; Agrico Chemical Company, Continental Oil Company, American Agricultural Chemical Company; and Fos-Kem Liquidation Corporation, Defendants, of whom BEAZER MATERIALS AND SERVICES, INC., and Beazer East, Inc., Successors in Interest to Koppers Company, Inc., Agrico Chemical Company, Continental Oil Company, American Agricultural Company, and Fos-Kem Liquidation Corporation, are Third-Party Plaintiffs, v. BRASWELL SHIPYARDS, INC., Third Party Defendant.

Page 923

993 F.Supp. 923

H. George DENT, Jr.; Ashley Realty Company, Inc., a South Carolina Corporation; and Southern Dredging Co., Inc., a South Carolina Corporation, Plaintiffs, v. BEAZER MATERIALS AND SERVICES, INC. and Beazer East, Inc., Successors in Interest to Koppers Company, Inc.; Agrico Chemical Company, Continental Oil Company, American Agricultural Chemical Company; and Fos-Kem Liquidation Corporation, Defendants, of whom

BEAZER MATERIALS AND SERVICES, INC., and Beazer East, Inc., Successors in Interest to Koppers Company, Inc., Agrico Chemical Company, Continental Oil Company, American Agricultural Company, and Fos-Kem Liquidation Corporation, are Third-Party Plaintiffs, v. BRASWELL SHIPYARDS, INC., Third Party Defendant.

Civil Action No. 2:89-2851-8.

United States District Court, D. South Carolina, Charleston Division.

December 28, 1995.

COPYRIGHT MATERIAL OMITTED

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Timothy William Bouch, William Jefferson Leath, Jr., Young, Clement, Rivers & Tisdale, Charleston, for H. George Dent, Jr., Ashley Realty Co. and Southern Dredging Co.

Robert Erving Stepp, Glenn Murphy Gray and Stepp LLP, Columbia, SC, Elizabeth Henry Warner, Buist, Moore, Smythe & McGee, PA, Charleston, SC, for Beazer Materials and Services, Inc.

Mark R. Zehler, Houston, TX, P. Michael Duffy, Michael A. Scardato, Charleston, SC, (Conoco), Samuel J. Morley, Harry R. Detwiler, Jr., Tallahassee, FL, William L. Want, Charleston, SC, (Agrico) for Defendants.

ORDER

BLATT, Senior District Judge.

I. BACKGROUND

From 1930 to 1977, Koppers Company, Inc. (hereinafter "Koppers"), now known as Beazer East, Inc. (hereinafter "Beazer")¹, operated a wood treating plant on approximately 45 acres of property in a part of Charleston, South Carolina known as the "neck" area.

The property immediately south of the former Koppers property (tax map numbers 464-00-00-012 and -029) was originally the location of Ashepoo Phosphate Works and is what is described as the Dent property for purposes of this case.

All of the various claims arise from the necessary remediation (clean-up) of creosote contamination generated by the wood treating plant operated by Koppers on the property adjacent to the Dent property. Both properties are now part of a proposed Superfund site. The United States is not a party to this suit since the CERCLA claims were brought as private party actions under that statute. Conoco has a common law claim against Beazer arising from an indemnity provision in a lease agreement for the use of a portion of the Dent property by Koppers during Conoco's ownership of the property. Agrico has a common law claim for equitable indemnification against Beazer for the contamination of the property during Agrico's ownership of the Dent property. This order addresses the responsibilities of the respective parties for the necessary remediation of the site under CERCLA, as well as the common law indemnification claims against Beazer.

This action was originally brought by plaintiffs H. George Dent, Jr., Ashley Realty Company, Inc., and Southern Dredging Company, Inc., ("the Dent plaintiffs") against defendants Beazer East, Inc. ("Beazer"), Agrico Chemical Company ("Agrico"), Continental Oil Company, American Agricultural Chemical Company and Fos-Kem Liquidation Company (collectively "Conoco") seeking recovery under various common law causes of action and under CERCLA.²

Beazer asserted cross claims against Conoco and Agrico and a third party claim against Braswell Shipyards ("Braswell"). Conoco and Agrico asserted cross claims against Beazer and filed third party claims against Braswell. Conoco and Agrico's third party claims were resolved by consent order prior to trial. All defendants settled with the Dent plaintiffs prior to trial. Following the trial, Beazer settled its claims with Braswell. The only remaining claims are cross claims between the defendants.

This court held a bifurcated trial, with a jury and a non-jury phase. In the first phase, beginning September 22, 1993, the common law claims and two factual issues regarding indemnity claims by the defendants Conoco and Agrico against the defendant Beazer were submitted to the jury. Following the first phase of the trial, the CERCLA portion was tried before this court sitting without a jury beginning on October 18, 1993. With regard to the remaining issues before the court, each party seeks the following relief:

Beazer seeks:

1. Contribution for response costs it incurred at the Dent Property with regard to wood treating constituents, pursuant to § 107(a) of CERCLA;

2. Recovery of response costs it incurred at the Dent Property with regard to fertilizer constituents pursuant to § 107(a) of CERCLA;

3. Contribution for response costs relating to the release or disposal of hazardous substances on the Dent Property pursuant to § 113(f)(1) of CERCLA; and 4. A declaration liability for future costs under § 113(g)(2) of CERCLA, without an allocation of any such costs.

Conoco seeks:

1. Contribution for response costs pursuant to § 113(f)(1);

2. A declaration of liability for future response costs under § 113(g)(2) of CERCLA, with an allocation of such costs; and

3. Recovery of settlement costs, attorneys' fees and expert fees under contractual and equitable indemnity theories.

Agrico seeks:

1. Contribution for response costs pursuant to § 113(f)(1);

2. A declaration of liability for future response costs under § 113(g)(2) of CERCLA, with an allocation of such costs; and

3. Recovery of settlement costs and attorneys' fees under an equitable indemnity theory.

II. STIPULATIONS

In the interest of judicial economy, and for the convenience of the jury, the parties to this action stipulated and agreed to the following statement of facts:

1. The former Koppers Co., Inc. was purchased by Beazer, and its name was changed to Beazer East, Inc. Beazer East, Inc. assumes all liability incurred by the former Koppers Company. (Jury Tr. Excerpt p. 3, Is. 17-20, September 27, 1993).

2. The Continental Oil Company, Conoco, purchased the assets of American Agricultural Chemical Co., and is a successor in interest as Lessor to the Lease Agreement dated October 20, 1953, between Koppers and American Agricultural Chemical Company, pertaining to the four acre site, which is part of the plaintiffs' property.³

3. In 1960, Koppers purchased one acre of the four acres which had been leased from Conoco.

4. The Lease was in full force and effect from 1953 through 1968.

5. Conoco sent a letter to Beazer dated July 10, 1992, demanding that Beazer indemnify, hold harmless and defend Conoco from the plaintiffs' claims.

6. Beazer has denied any such obligations.

7. From 1963 to 1972, with the exception of the one acre of the leased premises which was purchased by Koppers in 1960, Conoco owned the property now owned by Ashley Realty Co., referred to as the Dent tract in this case.

8. From 1972 to 1978, Agrico owned the property now owned by Ashley Realty Co., referred to as the Dent tract in this case.

9. By the end of May, 1993, Conoco and Agrico had agreed to settle all of the plaintiffs' claims against Conoco and Agrico, including the plaintiffs' common law claims, which this court had already ruled could not be maintained against Conoco and Agrico. (Jury Tr. Excerpt p. 3, 1. 17 through p. 4, 1. 23, September 27, 1993).

10. Conoco and Beazer stipulate that if the court determines that a portion of the legal services are attributable to the defense of Dent's common law actions, such as fraud, and are not recoverable, the amount to be set aside by the court as non-recoverable is $50,527.95. (Cercla Tr. Excerpt p.10, l. 5 through p. 11, l. 17, December 15, 1993).

III. FINDINGS OF FACT

In 1985, investigation of the property associated with Koppers' former wood treating operation revealed that this site posed a high degree of risk to public health and the environment due to contamination from chemical constituents used in wood treatment. The determination of the issues in this case is largely dependent upon an understanding of the nature and scope of the Koppers operation, including its effect, not only upon the Koppers property, but also upon the neighboring property, including the Dent property, and its effect on the natural resources in the area.

A. THE REMEDIATION IS DRIVEN BY KOPPERS' WOOD TREATING CHEMICAL CONSTITUENTS

For nearly 50 years, Koppers was the sole user of wood treating chemical constituents in this area. Koppers' method of disposal of its waste was environmentally unsound, and resulted in massive subsurface contamination of the property to its south (the Dent property) as well as waters of the adjoining Ashley River. The driving force behind the present remediation of the Dent property is the presence of chemical constituents from wood treatment. Based upon documentary evidence, expert testimony established that an estimated five (5) to seven (7) million gallons of creosote have been released into the environment as a result of Koppers' wood treatment practices.⁴ (Cercla Tr. Vol. II, p. 122, l. 25 through p. 123, ls. 1-2; Conoco Ex. 127B).

The polynuclear aromatic hydrocarbons (PAHs) detected on the Dent property are associated with creosote, based upon fingerprinting analysis and odor. (Jury Tr. Vol. V, p. 702, l. 7 through p. 703, l. 7; Conoco Exs. 32 and 37). The characteristic creosote fingerprint is present in most of the samples collected at the site. (Jury Tr. Vol. V, p. 733, ls. 12-14). When phenanthrene, fluoranthene, and pyrene are present in samples at concentrations representing one-third of the PAHs present, it is considered definitive for the presence of creosote. (Jury Tr. Vol. V, p. 734, l. 24 through p. 735, l. 3). The distribution of the PAHs here is strongly indicative of creosote. (Jury Tr. Vol. I, p. 177, l. 21 through p. 178, l. 1). The Constituent of Concern (COC) which drives this cleanup is a wood treating chemical constituent called...