Osi, Inc. v. U.S., No. 07-10941.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBlack
PartiesOSI, INC., A corporation, Plaintiff-Appellant, v. UNITED STATES of America, Michael W. Wynne, as Secretary of the Air Force, Robert M. Gates, Secretary of Defense, Defendants-Appellees.
Decision Date05 May 2008
Docket NumberNo. 07-10941.
525 F.3d 1294
OSI, INC., A corporation, Plaintiff-Appellant,
v.
UNITED STATES of America, Michael W. Wynne, as Secretary of the Air Force, Robert M. Gates, Secretary of Defense, Defendants-Appellees.
No. 07-10941.
United States Court of Appeals, Eleventh Circuit.
May 5, 2008.

[525 F.3d 1295]

Thomas R. DeBray, Sr., Nabors, Belser & DeBray, LLC, James Doyle Fuller, Law Office of J. Doyle Fuller, PC, Montgomery, AL, for OSI, Inc.

David C. Shilton, Wagner Jackson, U.S. Dept of Justice, Environmental Div., Washington, DC, Stephen M. Doyle, Montgomery, AL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before BLACK and CARNES, Circuit Judges, and RESTANI*, Judge.

BLACK, Circuit Judge:


OSI, Inc. (OSI) appeals, for the second time, the grant of summary judgment in favor of the Government on OSI's claims relating to the Air Force's use of certain land—including, in part, land now owned by OSI—as a landfill during the 1960s, 1970s, and 1980s. OSI brought tort claims under the Federal Tort Claims Act (FTCA), claims of cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and a citizen suit under the Resource Conservation Recovery Act (RCRA). The

525 F.3d 1296

district court granted summary judgment in favor of the Government on all claims. For the reasons stated below, we affirm.

I. BACKGROUND

The background leading up to the first appeal in this case is adequately recounted at OSI, Inc. v. United States, 285 F.3d 947, 949-50 (11th Cir.2002). We will briefly recap the relevant facts. During the 1960s and early 1970s, the Air Force leased land currently owned by OSI for use as a landfill. This land, called LF4, was part of a larger area of land that was adjacent to Maxwell AFB leased by the Air Force and used as landfills through the early 1990s. Many materials—including hazardous materials—were dumped on these sites.

In the late 1990s, the Air Force informed OSI of possible soil and groundwater contamination on LF4 from this era of dumping. The Air Force launched an investigation of all of the areas subject to the landfill activities (a large area—which included LF4—known as OU-1) to determine whether the contamination would pose a risk to health or the environment. OSI sued the Government, alleging various tort claims relating to the activities on LF4, seeking cost recovery under CERCLA, and filing a citizen suit under RCRA.

The district court initially dismissed all the claims. This Court affirmed as regards the tort claims, finding the discretionary function exception in the FTCA prevented the court from exercising jurisdiction over the tort claims. OSI, 285 F.3d at 953. The Court then vacated and remanded the grant of summary judgment on the RCRA and CERCLA claims to allow the district court a chance to supplement the record and provide greater explanation for its decision. Id.

Subsequent to the remand, two developments of note took place. First, the Air Force released its final Summary of Remediation Selection, detailing its remedial scheme for the OU-1 area. This scheme looked at threats to a nearby aquifer and established remediation plans based on the possible impact each site within the OU-1 area might have on the aquifer. To ensure pathways to human exposure did not develop, the plan consisted largely of long-term monitoring of groundwater on OU-1, the construction of a fence, and the installation of certain hydrogen-releasing compound barriers to reduce the concentration of some hazardous materials at select sites within OU-1.

Second, OSI learned landfill activities had taken place in the 1960s in areas outside of the technical boundaries of the LF4 leased area. OSI conceded the technical boundaries were never followed between the Air Force and the then-owners of LF4, the Thomasons. In their new tort claims, OSI contended the Thomasons and the Air Force agreed that a berm around three feet in height (roughly tracking the technical boundary of LF4) served to establish the actual boundary for landfill activities. Thus, hazardous materials discovered west of the berm were outside the boundary.

OSI claimed this was a new fact that changed the nature of its tort claims. OSI reasserted its original tort claims against the Government and added a claim for direct trespass. The Government again moved for summary judgment on the reasserted tort claims, the CERCLA cost recovery claims, and the RCRA citizen suit. The district court granted summary judgment on all claims. As to the tort claims, the district court found they were barred by the law of the case because the alleged new evidence relied on by OSI did not change the fact that all landfill activities took place with the Thomasons' permission. Thus, the court found the evidence remained substantially the same as the evidence before this Court in OSI, and the

525 F.3d 1297

law of the case controlled. On the CERCLA cost recovery claims, the district court found OSI did not have jurisdiction to seek cost recovery under precedents of the Supreme Court and this Court. As to the RCRA claim, the district court found it did have jurisdiction but granted summary judgment on the merits, finding no evidence by OSI to refute the absence of a genuine issue of material fact as to the existence of an imminent and substantial threat to health or the environment.

OSI appeals. Only the RCRA claim merits extended discussion.1

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, considering all evidence and reasonable inferences drawn therefrom in the light most favorable to the non-moving...

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46 practice notes
  • City Of Fresno v. U.S.A, No. CV-F-06-1559-OWW-TAG.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 30, 2010
    ...1021, 1027. The City fails to reconcile the relevant case law, including Pollack, Shea Homes, Moses Lake, and OSI, Inc. v. United States, 525 F.3d 1294 (11th Cir.2008).15 They involved materially different issues from the one in this case. Pollack, Shea Homes and OSI, Inc. dealt with whethe......
  • SOLUTIA INC. v. McWANE INC., Civil Action No. 1:03-cv-1345-PWG.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • July 2, 2010
    ...Atlantic Research itself and two earlier cases decided by the Eleventh Circuit, Redwing Carriers, supra, and OSI, Inc. v. United States, 525 F.3d 1294 (11th Cir.2008), sufficiently intimate that a plaintiff cannot bring claims under § 107(a) after itself having been sued under § 106 or § 10......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...removal proceedings sua sponte, we retain jurisdiction to consider constitutional challenges that were raised before the BIA.”); Lenis, 525 F.3d at 1294 (noting that “an appellate court may have jurisdiction over constitutional claims related to the BIA's decision not to exercise its sua sp......
  • Riverkeeper v. Wash. Gas Light Co., Civil Action No. 11–1453 (RMC).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 24, 2012
    ...wording of § 113(h) requires that a suit under RCRA is barred if it challenges a CERCLA response action); OSI, Inc. v. United States, 525 F.3d 1294, 1297–98 (11th Cir.2008) (If a “remedial action was selected under [§ 104], then the district court lacked jurisdiction over the RCRA citizen s......
  • Request a trial to view additional results
43 cases
  • City Of Fresno v. U.S.A, No. CV-F-06-1559-OWW-TAG.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 30, 2010
    ...1021, 1027. The City fails to reconcile the relevant case law, including Pollack, Shea Homes, Moses Lake, and OSI, Inc. v. United States, 525 F.3d 1294 (11th Cir.2008).15 They involved materially different issues from the one in this case. Pollack, Shea Homes and OSI, Inc. dealt with whethe......
  • SOLUTIA INC. v. McWANE INC., Civil Action No. 1:03-cv-1345-PWG.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • July 2, 2010
    ...Atlantic Research itself and two earlier cases decided by the Eleventh Circuit, Redwing Carriers, supra, and OSI, Inc. v. United States, 525 F.3d 1294 (11th Cir.2008), sufficiently intimate that a plaintiff cannot bring claims under § 107(a) after itself having been sued under § 106 or § 10......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...removal proceedings sua sponte, we retain jurisdiction to consider constitutional challenges that were raised before the BIA.”); Lenis, 525 F.3d at 1294 (noting that “an appellate court may have jurisdiction over constitutional claims related to the BIA's decision not to exercise its sua sp......
  • Riverkeeper v. Wash. Gas Light Co., Civil Action No. 11–1453 (RMC).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 24, 2012
    ...wording of § 113(h) requires that a suit under RCRA is barred if it challenges a CERCLA response action); OSI, Inc. v. United States, 525 F.3d 1294, 1297–98 (11th Cir.2008) (If a “remedial action was selected under [§ 104], then the district court lacked jurisdiction over the RCRA citizen s......
  • Request a trial to view additional results
3 books & journal articles
  • The Supreme Court Opens a Door in ARCO v. Christian, Part One
    • United States
    • Environmental Law Reporter Nbr. 51-3, March 2021
    • March 1, 2021
    ...similar decisions in other circuits (Cannon v. Gates, 538 F.3d 1328, 1332-36, 38 ELR 20223 (10th Cir. 2008); OSI, Inc. v. United States, 525 F.3d 1294, 1297-99, 38 ELR 20107 (11th Cir. 2008); APWU v. Potter, 343 F.3d 619, 624 (2d Cir. 2003); Clinton County Comm’rs v. Environmental Prot. Age......
  • Unresolved CERCLA Issues After Atlantic Research and Burlington Northern
    • United States
    • Environmental Law Reporter Nbr. 40-12, December 2010
    • December 1, 2010
    ...Cir. 2007); see also New York v. Next Millennium Realty, LLC, 2008 WL 1958002 at *6 (E.D.N.Y. May 2, 2008); OSI, Inc. v. United States, 525 F.3d 1294, 1297 n.1, 38 ELR 20107 (11th Cir. 2008). Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,......
  • The Site Cleanup Processes
    • United States
    • Superfund Deskbook -
    • August 11, 2014
    ...245. Fort Ord Toxics Project, Inc. v. Cal. Envtl. Prot. Agency, 189 F.3d 828, 832–34 (9th Cir. 1999). 246. OSI, Inc. v. United States, 525 F.3d 1294, 1298–99 (11th Cir. 2008) (holding that the Air Force’s remedial action for a federal facility not listed on the NPL was “selected under” §104......

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