Iberville Parish Waterworks v. Novartis Crop, CIV. A. 97-0886-CB-M.

• Citation: 45 F.Supp.2d 934
• Decision Date: 15 March 1999
• Docket Number: No. CIV. A. 97-0886-CB-M.,CIV. A. 97-0886-CB-M.
• Parties: IBERVILLE PARISH WATERWORKS DISTRICT NO. 3, on behalf of itself and others similarly situated, Plaintiffs v. NOVARTIS CROP PROTECTION, INC., Defendant.
• Court: United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama

45 F.Supp.2d 934

IBERVILLE PARISH WATERWORKS DISTRICT NO. 3, on behalf of itself and others similarly situated, Plaintiffs v. NOVARTIS CROP PROTECTION, INC., Defendant.

No. CIV. A. 97-0886-CB-M.

United States District Court, S.D. Alabama, Southern Division.

March 15, 1999.

Arthur N. Bagwell, White Castle, LA, Claude V. Bilbo, Jr., Pascagoula, MS,

Stanley Chesley, Louise Roselle, Waite, Schneider, Bayless & Chesley Co., Cincinnati, OH, City of Bowling Gree, John C. Williams, Esq., Mobile, AL, David R. Donaldson, Pamela Beard Slate, Donaldson, Guin & Slate, L.L.C., Birmingham, AL, James R. Dugan, II, James R. Duncan, II, Gauthier, Murphy, La Barre, Beiser & Dean, Metarie, LA, Calvin C. Fayard, Jr., Fayard & Honeycutt, Denham Springs, LA, Wendell H. Gauthier, Gauthier & Downing, Metairie, LA, Lawrence G. Gettys, Plaquemine, LA, Charles A. Graddick, Graddick, Belser & Nabors, PC, Mobile, AL, Linda S. Hurang, Murray Law Firm, New Orleans, LA, Stephen M. Irving, Baton Rouge, LA, J. Chandler Loupe, Claitor & Loupe, LLC, Baton Rouge, LA, J. Greg Murphy, Claitor, Murphy & Loupe, Baton Rouge, LA, Stephen B. Murray, Sr., Murray Law Firm, New Orleans, LA, Pamela M. Pendley, Plaquemine, LA, Patrick W. Pendley, Plaquemine, LA, John C. Williams, Mobile, AL, for plaintiffs.

Henry Bernis Alsobrook, Jr., Paul Oneal Dicharry, Joseph P. Gordon, Jr., Mark Christopher Surprenant, Adams and Reese, New Orleans, LA, Deborah B. Hembree, Edward Josepoh Rice, Jr., Adams & Reese, Mobile, AL, Christopher Mahoney, Washington, DC, F. Grey Redditt, Jr., L. Thomas Styron, Vickers, Riis, Murray & Curran, L.L.C., Mobile, AL, for defendant.

Cinda Ruth York, Donaldson, Guin & Slate, L.L.C., Birmingham, AL, pro se.

ORDER

BUTLER, Chief Judge.

This matter is before the Court on Defendant's Motion for Partial Summary Judgment (Doc. 82) in which Defendant argues that Plaintiffs have failed to meet the constitutional requirements which would establish standing to sue in this Court. Additionally, Defendant contends that, even if Plaintiffs do have standing, any claim they may have is not yet ripe for adjudication. Having carefully considered Defendant's Motion for Partial Summary Judgment, Plaintiffs' Opposition (Doc. 92) and Defendant's Reply (Doc. 100) and the briefs filed in support of each, the Court finds that there remains no genuine issue of material fact and that Defendant is entitled to judgment as a matter of law and therefore Defendant's Motion for Partial Summary Judgment is due to be granted. Because Summary Judgment has been granted on the threshold issues of standing and ripeness, the Court need not address the substantive grounds on which Plaintiffs' claims are based.

PROCEDURAL HISTORY

The named Plaintiffs are local water systems in Iberville Parish, Louisiana and Bowling Green, Ohio and are thus citizens of those states. Novartis, as successor-in-interest to Ciba-Geigy Corporation, and is a citizen of some state other than Ohio or Louisiana and produces Atrazine at a manufacturing facility in McIntosh, Alabama. This Court has jurisdiction pursuant to 28 U.S.C. § 1332, diversity of citizenship and an amount in controversy in excess of $75,000.00 exclusive of interest and costs.

Plaintiffs brought this novel proposed class action on behalf of themselves and all similarly situated public and community water systems. They allege that, because of the requirements of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300f et seq. and the regulations promulgated thereunder by the Environmental Protection Agency, 40 CFR § 141 et seq., the water systems have been, or will be, forced to expend considerable sums to remove Atrazine from their drinking water. Additionally, because of the SDWA and EPA regulations, Plaintiffs contend that they have been forced to test the raw water for the presence of Atrazine in order to determine whether to treat the raw water for that chemical. Plaintiffs' Second Amended Class Action Complaint (Doc. 95) contains six theories under which Novartis may be held liable for Plaintiffs' expected costs of testing for and removing Atrazine from drinking water: Count I alleges strict products liability; Count II, negligence; Count III, strict liability for abnormally dangerous or ultra hazardous activity; Count IV, trespass; Count V, nuisance; and, Count VI, unjust enrichment.

Standard for Summary Judgment.

Summary Judgment should be granted only if "there is no issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).

Once the moving party has satisfied its burden, then the burden shifts to the nonmoving party to show the existence of a genuine issue of material fact. Id. If the nonmoving party fails to make "a sufficient showing on an essential element of its case with respect to which she has the burden of proof", the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Otherwise stated, the nonmovant must "demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, 929 F.2d at 608. "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party". Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202). Additionally, mere conclusions and unsupported factual allegations are legally insufficient to create a dispute to defeat summary judgment. Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.1989); Jackson v. City of Auburn, 41 F.Supp.2d 1300, 1308 (M.D.Ala.1999).

In so doing, the nonmoving party may not rest on the pleadings alone. Celotex at 324, 106 S.Ct. 2548. Rather, the nonmoving party must designate "specific facts" and employ affidavits, or by the "depositions, answers to interrogatories, and admissions on file," show that there is a genuine issue for trial. Id. and Hoffman v. Allied Corp., 912 F.2d 1379, 1382 (11th Cir.1990); Weiss v. School Board of Hillsborough County, 141 F.3d 990, 994 (11th Cir.1998).

Still, the function of the court is not to "weigh the evidence and determine the truth of the matter but to determine whether there is an issue for trial." Anderson v. Liberty Lobby, Inc., at 249, 106 S.Ct. 2505. The evidence must be viewed in a light most favorable to the nonmoving party and all inferences will be drawn in a nonmoving party's favor. Id. at 255, 106 S.Ct. 2505; Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Adickes v. S.H. Kress & Co. 398 U.S. 144, 157-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

FINDINGS OF FACT

Atrazine

Atrazine, whose chemical formula is 2-chloro4-ethylamino-6-isoproplyamino-s-triazine, is a herbicide which is used mainly by corn, sorghum, and sugar cane farmers for pre-emergence broad leaf weed control. Atrazine is advantageous to farmers because it does not readily bind to soil, it has limited solubility in water, and is not easily broken down by biological or photo-decomposition.¹ However, Atrazine has been identified as an environmental hazard by the Environmental Protection Agency, and public water systems are required to test their finished water at points where the water enters the distribution system. 40 CFR § 141.24(h)(2). Both because of its potential for run-off and because the EPA found that Atrazine had an adverse affect on animals, EPA set a Maximum Contaminant Level ("MCL") of 0.0003 parts per million (or 3 parts per billion) on an average annualized basis. 40 CFR § 141.28. Drinking water that meets the EPA standard is associated with little or no potential health risk presented by Atrazine contamination. Id.

Conventional water treatment facilities have great difficulty in removing Atrazine from the water supply. While some systems are experimenting with oxidization techniques, the EPA has certified that the best available technology is a granular activated carbon ("GAC") filter system. 40 CFR § 141.61(b).² Though it is both more effective in removing Atrazine and is easier to use, a GAC filter system requires a substantial capital expenditure before it can be brought into operation. Montgomery-Watson Report at 5.

A far less expensive technique for removing Atrazine is to apply powdered activated carbon ("PAC") to the existing filtration system. PAC must be added to the raw water as a "slurry" and must be well-mixed with the water to allow it sufficient contact time to absorb contaminants. Then, as the water enters the existing filtration system, the filters remove the PAC and any contaminants that have been absorbed. If, however, the PAC slurry does not have sufficient contact time, it will be ineffective in removing Atrazine.

A third technique for removing Atrazine is to add makeshift GAC filters to the existing system and to use those along with PAC in order to increase overall contact time and enhance the system's ability to remove contaminants. As with PAC, however, if there is insufficient contact time, the improvised GAC filters will not be effective in removing Atrazine from the raw water.

Iberville Parish Waterworks District No. 3

Iberville Parish Waterworks District No. 3 ("District 3") is a public body created by Iberville Parish in 1960. District 3 serves customers in western Iberville Parish. It draws its water from the Upper Terrebonne Basin watershed which lies west of the Mississippi River southwest of Baton Rouge, Louisiana, and is fed by the Lower Grand River, Bayou Grosse Tete, and Bayou...