Joslyn Manufacturing Co. v. TL James & Co., Inc., Civ. A. No. 87-2054.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
• Citation: 836 F. Supp. 1264
• Docket Number: Civ. A. No. 87-2054.
• Parties: JOSLYN MANUFACTURING COMPANY v. T.L. JAMES & COMPANY, INC. et al.
• Decision Date: 08 July 1993

836 F. Supp. 1264

JOSLYN MANUFACTURING COMPANY
v.
T.L. JAMES & COMPANY, INC. et al.

Civ. A. No. 87-2054.

United States District Court, W.D. Louisiana, Shreveport Division.

July 8, 1993.

836 F. Supp. 1265

COPYRIGHT MATERIAL OMITTED

836 F. Supp. 1266

Jay Canel, Stephen Davis, William Jones, Canel, Davis & King, Chicago, IL, Haller Jackson, III, Tucker, Jeter, Jackson & Hickman, Shreveport, LA, for plaintiff Joslyn

Robert Shuftan, Steven Danekas, Wildman, Harrold, Allen & Dixon, Chicago, IL, J. Fleet Howell, Wiener, Weiss, Madison & Howell, Shreveport, LA, for defendant Koppers Co., Inc., now known as Beazer East, Inc.

Bobby Gilliam, Penny Sellers, Wilkinson, Carmody, Gilliam & Hussey, Shreveport, LA, for defendant LA & AR Rwy. Co.

MEMORANDUM RULING

STAGG, District Judge.

This action was brought by Joslyn pursuant to 42 U.S.C. § 9613(f)(1) to recover contribution for alleged response costs incurred by Joslyn in complying with orders of the Louisiana Department of Environmental Quality to investigate and clean up the Lincoln Creosoting site and for declaratory judgment concerning liability for costs and any future removal or remediation action from persons who allegedly may be liable for those costs pursuant to 42 U.S.C. § 9607(a). Joslyn makes identical state law claims pursuant to the Louisiana Environmental Quality Act ("LEQA"), which allows double damages and attorney's fees to be awarded. See La.Rev. Stat. 30:2276(G)(1) and (2) and 30:2272(9)(a). Louisiana and Arkansas Railway Company ("L & A") has filed counterclaims against Joslyn and cross-claims against Koppers under CERCLA and the LEQA and pursuant to certain lease agreements executed among the parties. Koppers has filed a counterclaim against Joslyn and a cross-claim against L & A under CERCLA, seeking contribution, indemnity and declaratory relief. This case was tried to the bench from March 15 to March 18, 1993.

I. THE FACTS

The parties set forth the following facts as admitted and requiring no proof: This lawsuit involves two parcels of contiguous real property located in Bossier City, Louisiana, known as the Lincoln Creosoting site ("the site"). The first parcel contained a wood-treating plant which included building, treating and storage tanks, wood treatment cylinders, black storage areas and other equipment. The second parcel contained industry tracks used in conjunction with the wood-treating operations on the first parcel. The following chart depicts the relevant ownership and leasing history of the two parcels.

 FIRST PARCEL SECOND PARCEL
                1935 owned by Lincoln Creosoting Co. owned by L & A
                1938 portions leased to Lincoln
                1950 August 1, Joslyn purchased first August 14, Joslyn is assigned Lincoln's
                 parcel and plant leases
                1965 Joslyn leases additional portions
                1967 Joslyn again leases additional portions
                1969 December 1, first parcel sold to
                 Koppers
                1970 By agreement with L & A, Joslyn's
                 1967 lease was assigned to Koppers
                1971 first parcel sold to Myatt family
                

836 F. Supp. 1267

Over the course of its 19 years of operations at the site, Joslyn used creosote at the site. In the late 1950s, Joslyn introduced pentachlorophenol ("penta"), another wood preservative, to the site. In the 1960s, Joslyn began to use chromated copper arsenate ("CCA") to treat wood at the site. During Joslyn's operation of the wood treating plant, creosote residue formed underneath and to the sides of the industry tracks on the site, thereby preventing the tram cars from rolling thereon. Periodically, it was necessary for Joslyn employees to remove the sludge on the rails with shovels; the sludge was then used to fill pot holes in its roads. Creosote residue was also used on the ground to serve as the base for 600 linear feet of roads on the site and was sprayed to control weeds and vegetation.¹

On February 3, 1986, the DEQ issued an order against T.L. James (the parent corporation of Lincoln),² Joslyn, Koppers, L & A and others, requiring that a fence be erected around the perimeter of the site within 60 days. Joslyn paid most of the cost of preparing a fencing plan and erecting the fence. L & A, while denying responsibility for the remediation, paid a pro rata portion of the fencing costs. Koppers paid no part of the cost, because Koppers claimed and still claims that it is not a responsible party under either CERCLA or Louisiana law. L & A and Koppers requested a hearing with respect to all matters contained in the DEQ's February 6, 1986 compliance order.

On August 2, 1986, the DEQ issued another order against T.L. James, Joslyn, Koppers, L & A and others, ordering them to develop a plan for investigation of the site and for clean up of "problem areas" discovered during the Phase 1 investigation. Koppers and L & A again denied liability and requested a hearing with respect to all matters contained within the order. Joslyn submitted to DEQ a document entitled "remedial investigation work plan" prepared by E.R.M.-Southwest, Inc., dated March 15, 1988. On November 17, 1988, the DEQ approved this work plan. Again, Koppers and L & A denied any liability and requested a hearing pursuant to the DEQ's November 17 compliance order.

On April 30, 1991, the DEQ issued an order against T.L. James, Joslyn, Koppers, L & A and others to submit a "remedial action plan" and, upon approval, to implement the plan. Again, Koppers and L & A denied any liability and requested a hearing. On January 17, 1992, Joslyn submitted a "removal action work plan" to the DEQ. On February 28, 1992, Joslyn began excavation at the site. Uniform hazardous waste manifests and weight tickets were prepared for each of the truck loads of soil removed from the site. In June and July of 1992, Joslyn asked the DEQ for permission to stop work at the site; this request was denied. As of the date of trial, Joslyn alleges that it has incurred expenses totaling over $13 million dollars.

II. LEGAL ANALYSIS

This action was brought by Joslyn pursuant to 42 U.S.C. § 9613(f)(1) of CERCLA for the recovery of response costs. Joslyn has made identical claims pursuant to La.Rev. Stat. 30:2276(9)(A) and (2) and 2272(9)(a) of the LEQA. Joslyn has stated that "this case ought to be decided under both laws CERCLA and the LEQA and final judgment ought to be entered in Joslyn's favor and against Koppers and the L & A in an amount and in a manner which greatly encourages the voluntary cooperation and penalizes non-cooperation."³ See Joslyn's Closing Argument at page 2.

836 F. Supp. 1268

The initial question to be addressed is whether this case should be decided under CERCLA, the LEQA, or both. 42 U.S.C. § 9613(f)(1) provides:

Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 or section 9607 of this title.

42 U.S.C. § 9614 of CERCLA is entitled "Relationship to other law," and provides in part:

(a) Additional State liability or requirements with respect to release of substances within State

Nothing in this chapter shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within such State.

(b) Recovery under other State or Federal law of compensation for removal costs or damages or payment of claims

Any person who receives compensation for removal costs or damages or claims pursuant to this chapter shall be precluded from recovering compensation for the same removal costs or damages or claims pursuant to any other State or Federal law. Any person who receives compensation for removal costs or damages or claims pursuant to any other Federal or State law shall be precluded from receiving compensation for the same removal costs or damages or claims as provided in this chapter.

Under § 9614(b), if Joslyn recovers compensation for response costs from L & A and/or Koppers pursuant to CERCLA then Joslyn is precluded from asserting its identical state law claims against that party. This court does not hold that CERCLA remedies preempt complementary state remedies; in fact, if Joslyn does not receive compensation for its response cost pursuant to CERCLA, then § 9614(b) does not preclude Joslyn's state law claims. Thus, the first analysis is whether Joslyn is entitled to receive compensation from Koppers and/or L & A pursuant to CERCLA.

A. CERCLA LIABILITY:

To establish a prima facie case of liability in a CERCLA cost recovery action, a plaintiff must prove: (1) that the site in question is a "facility" as defined in Section 9601(9); (2) that the defendant is a responsible person under Section 9607(a); (3) that a release or a threatened release of a hazardous substance has occurred; and (4) that the release or threatened release has caused the plaintiff to incur response costs.

Amoco Oil Company v. Borden, Inc., 889 F.2d 664, 668 (5th Cir.1989). It is undisputed that the site in question is a facility as defined in § 9601(9), that a release or a threatened release of hazardous substance has occurred and that the release or a threatened release has caused Joslyn to incur response costs. What is disputed is whether defendants, Koppers and L & A, are "responsible persons" under § 9607(a).

Joslyn contends that L & A and Koppers owned or operated the facility during a time when hazardous substances were disposed and, therefore, that they are responsible persons pursuant to 42...