Dravo Corp. v. Zuber

• Decision Date: 09 September 1992
• Docket Number: No. 8:CV 91-00499.,8:CV 91-00499.
• Parties: DRAVO CORPORATION, Plaintiff, v. Morton ZUBER, Zuber Company, and Burlington Northern Railroad Company, Defendants.
• Court: U.S. District Court — District of Nebraska

804 F. Supp. 1182

DRAVO CORPORATION, Plaintiff, v. Morton ZUBER, Zuber Company, and Burlington Northern Railroad Company, Defendants.

No. 8:CV 91-00499.

United States District Court, D. Nebraska.

September 9, 1992.

Michael Mostek and Paul Elofson, McGill, Parsonage Law Firm, Omaha, Neb., Lawrence Demase and Joseph Klein, Reed, Smith Law Firm, Pittsburgh, Pa., for plaintiff.

Robert M. Zuber, Zuber, Ginsburg Law Firm, Omaha, Neb., for defendants Morton Zuber and Zuber Co.

Judy M. Lange and Rodney M. Confer, Knudsen, Berkheimer Law Firm, Lincoln, Neb., Susan M. Greisgraber and John C. Knoeffler, Robins, Kaplan Law Firm, Minneapolis, Minn., for defendant Burlington Northern.

MEMORANDUM AND ORDER

KOPF, District Judge.

This matter is before the court on defendants Zuber and Burlington Northern Railroad Company's motions for summary judgment (filings 90 and 97). Although confronted with a small mountain of paper, I conclude that the defendants' motions should be granted. The straightforward legal issue, uncomplicated by disputed material facts, is whether the so-called "de minimis" settlement agreement — entered into by and between defendants and the Environmental Protection Agency (EPA)— precludes plaintiff from maintaining this suit. Finding that sections 113(f)(2), 42 U.S.C. § 9613(f)(2), and 122(g)(5), 42 U.S.C. § 9622(g)(5), of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) bar plaintiff's claims for monetary relief and declaratory relief, the motions for summary judgement will be granted.

I.

A.

Dravo Corporation (Dravo) sued Morton Zuber, Zuber Company (collectively referred to as Zuber) and Burlington Northern Railroad Company (BN) on September 6, 1991. In the complaint Dravo sought to "recover costs expended and to be expended for the study and remedy of a release or threatened release of hazardous substances ... into the environment ... including the Colorado Avenue Subsite, of the Hastings Ground Water Contamination Site in Hastings, Nebraska." (Complaint, ¶ 1 (filing 1)). Dravo claimed that it had been ordered by the EPA to "perform remedial design" work at the Colorado Avenue Subsite (id., at ¶ 31), but the defendants "have made no contribution to funding the expenses" (id., at ¶ 32) despite the fact the Zuber and BN "are liable or potentially liable persons." (Id., at ¶ 38). Therefore, Dravo seeks: contribution and/or indemnity under CERCLA in Count I; common law contribution under Count II asserted as an alternative to count I in the event complete relief could not be solely based upon Count I; equitable subrogation under Count III asserted as an alternative to Counts I and II in the event complete relief could not be solely based upon Counts I and II; and declaratory relief under Count IV.

B.

After an investigation, the EPA concluded that Dravo (and others excluding the defendants) "arranged for the disposal of certain chemicals into a drain that led either to a sanitary sewer or a storm sewer." (Unilateral Administrative Order, ¶ 14 (September 28, 1990) (filing 98, Exhibit C)). The drain was connected to a private storm sewer which ran under property owned by BN and adjacent to property owned by Zuber (Id., at ¶ 5; Administrative Order on Consent (De Minimis Order), ¶¶ 8, 12, 14 and 17 (filing 98, exhibit A; approved June 12, 1992, filing 98, Exhibit B)). The EPA found that the sewer was broken and the chemicals passing through the sewer leaked into the soil and groundwater causing the contamination (Administrative Order on Consent (De Minimis Order), ¶¶ 16, 17 (filing 98, exhibit A)). Ultimately the EPA concluded that the contamination was "caused solely by the acts and omissions of third parties, including but not limited to ... Dravo but excluding BN and Zuber." (De Minimis Order, ¶ 17 (filing 98, exhibit A)).

Zuber and BN, as owners or users of property within the contaminated subsite, technically fall within one of the classes of "responsible parties" under CERCLA. § 107(a), 42 U.S.C. § 9607(a). Apparently as a consequence of this liability exposure, Zuber and BN sought to resolve their liability. See CERCLA § 122(g), 42 U.S.C. § 9622(g) (regarding "De Minimis settlements"). After receiving public comments, including Dravo's opposition to any settlement between EPA, Zuber and BN (Responsiveness Summary) (filing 98, Exhibit D), the EPA settled with Zuber and BN effective June 12, 1992 (De Minimis Order, (filing 98, exhibit A; approved June 12, 1992, filing 98, Exhibit B)).

Among other things, Zuber and BN gave the EPA (and others) access to their property for purposes of performing "response actions." (De Minimis Order, (filing 98, exhibit A, ¶ 27)). Subject to certain reservations, the EPA agreed not to sue Zuber and BN. (De Minimis Order, (filing 98, exhibit A, ¶¶ 40 and 41)). The EPA also agreed that Zuber and BN were entitled to "contribution protection" pursuant to section 122(g)(5) of CERCLA, 42 U.S.C. § 9622(g)(5). (De Minimis Order, (filing 98, exhibit A, ¶ 47)). As previously noted, the EPA found that Dravo (and others), but not Zuber and BN, were the parties primarily responsible for the contamination. (De Minimis Order, ¶ 17 (filing 98, exhibit A)).

II.

A.

Summary judgment should be granted "only if 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is an extreme and treacherous device, which should not be granted unless the moving party has established a right to a judgment with such clarity as to leave no room for controversy, and unless the other party is not entitled to recover under any discernible circumstance. Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Id. Even if the district court is convinced that the moving party is entitled to judgment, the exercise of sound judicial discretion may dictate that the motion should be denied, in order that the case can be fully developed at trial. McLain v. Meier, 612 F.2d 349, 356 (8th Cir.1979).

Essentially the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or other fact finder or whether it is so onesided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). And, although under Federal Rule of Civil Procedure 56 due deference must be given to the rights of litigants to have their claims adjudicated by the appropriate finder of fact, equal deference must be given under Rule 56 to the rights of those defending against such claims to have a just, speedy and inexpensive determination of the action where the claims have no factual basis. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986).

B.

In my judgment the dispositive material fact question is whether Zuber and BN entered into the settlement agreement with EPA. It is undisputed that the settlement agreement was entered into and is now effective. The terms of the settlement agreement are clear. I, therefore, must determine the legal significance of this undisputed fact.

III.

A.

CERCLA, at section 122(g)(5), provides that: "A party who has resolved its liability to the United States pursuant to a De Minimis settlement shall not be liable for claims of contribution regarding matters addressed in the settlement." 42 U.S.C. § 9622(g)(5).¹ See also section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2) ("A person who has resolved its liability to the United States ... in an administrative ... approved settlement shall not be liable for claims for contribution....")

The courts have consistently enforced CERCLA by providing settling parties with immunity from any claim regarding matters addressed in the settlement with the government provided the non-settling party's claim is in substance a claim for contribution, even though the claim may be called something else. See e.g. United States v. Cannons Engineering Corp, 899 F.2d 79, 92 (1st Cir.1990) (upholding the dismissal of certain cross-claims for such things as indemnity, stating that "although CERCLA is silent regarding indemnification, we refuse to read into the statute a right to indemnification that would eviscerate § 9613(f)(2) and allow non-settlors to make an end run around the statutory scheme"); United States v. Pretty Products, Inc., 780 F.Supp. 1488, 1492-1496 & nn. 3 and 7 (S.D.Ohio 1991) (dismissing contribution claims under CERCLA, and claims under Ohio state law and common law, labelled as indemnity, breach of contract, quasi-contract, quantum meruit, and unjust enrichment theories of recovery); United States v. Alexander, 771 F.Supp. 830, 840, 841 (S.D.Tex.1991) (calling an assertion that "`a non-settling defendant may pursue contribution under state law for liability for response costs, notwithstanding the contribution bar provisions of CERCLA'" a "blunt misstatement of the law" and imposing Rule 11 sanctions for such an assertion.) Thus, counts I, II, III, and IV² of Dravo's complaint are barred by CERCLA.

B.

Dravo tries to avoid the plain language of CERCLA, and the evident intention of Congress, by asserting various arguments. I have carefully considered each argument and consider them all inventive, but not meritorious. I shall only discuss the more significant of Dravo's arguments.

1.

Dravo argues that the verb tense or sentence structure of a significant portion of the De Minimis Order suggests that Zuber and BN have not yet been given contribution protection. Dravo points out that the De Minimis Order regarding contribution protection states that the "EPA agrees that by...