Jordan v. Southern Wood Piedmont Co.

• Decision Date: 14 July 1992
• Docket Number: Civ. A. No. CV191-108,CV191-063.
• Citation: 805 F. Supp. 1575
• Parties: Ernest L. JORDAN, et al., Plaintiffs, v. SOUTHERN WOOD PIEDMONT COMPANY, ITT Rayonier, Inc., ITT Corporation, and The Dow Chemical Co., Defendants. R.J. FOREMAN, Sr., et al., Plaintiffs, v. SOUTHERN WOOD PIEDMONT COMPANY, ITT Rayonier, Inc., ITT Corporation, and The Dow Chemical Co., Defendants.
• Court: U.S. District Court — Southern District of Georgia

805 F. Supp. 1575

Ernest L. JORDAN, et al., Plaintiffs, v. SOUTHERN WOOD PIEDMONT COMPANY, ITT Rayonier, Inc., ITT Corporation, and The Dow Chemical Co., Defendants.

R.J. FOREMAN, Sr., et al., Plaintiffs, v. SOUTHERN WOOD PIEDMONT COMPANY, ITT Rayonier, Inc., ITT Corporation, and The Dow Chemical Co., Defendants.

Civ. A. Nos. CV191-108, CV191-063.

United States District Court, S.D. Georgia, Augusta Division.

July 14, 1992.

COPYRIGHT MATERIAL OMITTED

Harry Blackshear James, III, William Robert McCracken, Augusta, Ga., for plaintiffs.

Benjamin L. Weinberg, Jr., David A. Sapp, Charles Kyle Reed, Long, Weinberg, Ansley & Wheeler, Nolan C. Leake, Eugene G. Partain, King & Spalding, Jay Frank Castle, Lord, Bissell & Brook, Atlanta, Ga., for defendants.

ORDER

BOWEN, District Judge.

Defendant Dow Chemical Co. ("Dow") moves the Court for summary judgment in CV191-108 and CV191-063.¹ This Order resolves Dow's Motions for Summary Judgment in both CV191-108 and CV191-063 because the issues in these cases are grounded in a common set of circumstances. Jurisdiction is predicated on 28 U.S.C. § 1331 in CV191-108 and on 28 U.S.C. § 1332 in CV191-063.

I. BACKGROUND

The Plaintiffs in both cases² own real estate in the immediate vicinity of an Augusta, Georgia, wood treatment plant owned and operated by ITT Rayonier, ITT Corporation and Southern Wood Piedmont (collectively "SWP"). In its wood treatment operation, SWP used a form of pentachlorophenol sold by Dow under the trade name "DOWICIDE" ("penta").³

Plaintiffs' claims arise from an alleged release of penta from the SWP Augusta facility. Pointing to the alleged resultant contamination of their lands, the Jordan - Plaintiffs assert a claim under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, ("CERCLA") as well as state common law negligence, trespass, nuisance and conspiracy claims. Similarly, the Foreman -Plaintiffs assert state common law ultrahazardous activity, strict liability, negligence, trespass, nuisance and conspiracy claims.

Dow moves for summary judgment on the Jordan -Plaintiffs' CERCLA claims upon grounds that it is not within CERCLA's defined class of potentially liable parties and, alternatively, that it falls within a CERCLA provision excluding from liability certain parties dealing with pesticides registered under the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 ("FIFRA"). As to the remaining claims, Dow's motions for summary judgment first interprets them as asserting that Dow mislabeled its chemicals and, then, arguing that any such claims are preempted by FIFRA. Also, Dow's motions assert that Plaintiffs' state law claims are time barred and that the Foreman -Plaintiffs' strict liability claim is barred by Ga. Code Ann. § 9-3-30 (Michie 1982). After due consideration, this Court concludes that Dow is not liable under CERCLA and that Plaintiffs state law claims are without merit. Consequently, Dow's timeliness arguments are moot.

II. SUMMARY JUDGMENT

The Court should grant summary judgment only if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the burden of showing that there is no genuine dispute as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Clemons v. Dougherty County, 684 F.2d 1365, 1368 (11th Cir.1982). The party moving for summary judgment may meet this burden upon showing that the adverse party has failed to make a showing sufficient to establish the existence of an element essential to the adverse party's case, and on which the adverse party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If any factual issue is unresolved by the motion for summary judgment, then the Court may not decide that matter. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). The Court must resolve all reasonable doubts in favor of the adverse party. Casey Enterprises, Inc. v. American Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.1981). When, however, the moving party's motion for summary judgment pierces the pleadings, the burden then shifts to the adverse party to show that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The adverse party cannot carry this burden by reliance on the pleadings, or by repetition of conclusory allegations contained in the complaint. Morris v. Ross, 663 F.2d 1032, 1033 (11th Cir.1981). Rather, the adverse party must respond by affidavits or as otherwise provided in Fed.R.Civ.P. 56.

In accordance with Griffith v. Wainwright, 772 F.2d 822 (11th Cir.1985), the clerk has given the adverse party notice of the summary judgment motion, the right to file affidavits or other materials in opposition to the motion, and of the consequences of default. Thus, the notice requirement of Griffith is satisfied.

III. DISCUSSION

A. CERCLA Claim

CERCLA was enacted in 1980⁴ as a comprehensive plan to handle the nation's hazardous waste problems and "to force those responsible for creating hazardous waste problems to bear the cost of their actions." United States v. Bliss, 667 F.Supp. 1298, 1304 (E.D.Mo.1987), citing Violet v. Picillo, 648 F.Supp. 1283, 1288 (D.R.I.1986). See also Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1317 (11th Cir.1990) ("Florida Power"); U.S. v. Aceto Agric. Chem's. Corp., 872 F.2d 1373 (8th Cir.1989). As interpreted by most courts, CERCLA imposes strict, joint and several liability⁵ and allows only a few causation-based defenses.⁶ Aceto, 872 at 1377-78; see also, Bliss, 667 F.Supp. at 1304. For a private plaintiff to establish a prima facia CERCLA case for the recovery of response costs of waste cleanup, he must show:

(1) that the defendant is within one of four statutory categories of "covered persons" liable for such costs (2) that there has been a release or there is a threat of release of a hazardous substance from a facility;

(3) which has caused plaintiff to incur clean-up and response costs;

(4) that the costs expended were necessary;

and

(5) that the responsive actions taken and the costs incurred were consistent with the National Contingency Plan.

Prudential Ins. Co. of Am. v. U.S. Gypsum, 711 F.Supp. 1244, 1251 (D.N.J.1989), citing, Artesian Water Co. v. Government of New Castle County, 659 F.Supp. 1269, 1278 (D.Del.1987), aff'd, 851 F.2d 643 (3d Cir.1988).

In applying CERCLA here, two issues arise: (1) whether Dow is a "covered person" under 42 U.S.C. § 9607(a) ("§ 9607(a)") and (2) whether the CERCLA liability exclusion for FIFRA registered pesticides applies to penta under the circumstances of this case.

1. The CERCLA § 9607(a) "Covered Person"

Count V of the Jordan -Plaintiffs' Complaint alleges that Dow arranged for the disposal of penta and is therefore a "covered person" liable under CERCLA. Dow responds by arguing that its role was strictly limited to that of a vendor of chemicals and that it had no hand in disposing of penta at the Augusta site.⁷ Those parties considered to be a "covered person" liable under § 9607(a) include:

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, ... shall be liable for cleanup costs or damages resulting from injury to, destruction of, or loss of natural resources.

42 U.S.C. § 9607(a)(3) (emphasis supplied). The critical point here is whether, either through its sale of penta to SWP or by virtue of other contacts with SWP, Dow "otherwise arranged for disposal" of that chemical.

Under similar circumstances, the Eleventh Circuit Court of Appeals refused to establish a per se rule excluding chemical suppliers from CERCLA liability and explained that a determination as to whether a supplier "otherwise arranged for disposal" must be made on a case by case basis. Florida Power, 893 F.2d at 1317. Florida Power also noted, however, that "if a party merely sells a product, without additional evidence that the transaction includes an `arrangement' for the ultimate disposal of a hazardous substance, CERCLA liability would not be imposed." Id. Finally, "... a liberal judicial interpretation of the term arranged is required in order that we achieve CERCLA's `overwhelmingly remedial' statutory scheme." Id., citing United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 733 (8th Cir.1986), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987).

In support of their allegation that Dow arranged for the disposal of penta at the Augusta SWP site, the Jordan -Plaintiffs point to Dow's sale of penta to SWP and (1) a Material Safety Data Sheet ("MSDS"), (2) Dow technical bulletins and communications inviting inquiries from anyone experiencing chemical problems with which Dow has expertise, and (3) several tests and surveys allegedly conducted by Dow with SWP assistance. Whether considered individually or collectively, the Dow activities offered by Plaintiffs do not support a finding that Dow is a "covered person."

Plaintiffs assert that Dow's MSDS demonstrates that Dow was arranging for the disposal of penta because it describes a disposal method for penta.⁸ This argument, however, fails to recognize that the MSDS is distributed to comply with regulations promulgated by the Occupational Safety and Health Administration ("OSHA"), see 29 C.F.R. § 1910.1200, and, significantly, that the disposal method noted is found in section 6 of Dow's MSDS under the heading ...