Reichhold Chemicals, Inc. v. Textron, Inc.

• Decision Date: 17 May 1995
• Docket Number: No. 92-30393-RV.,92-30393-RV.
• Citation: 888 F. Supp. 1116
• Parties: REICHHOLD CHEMICALS, INC., Plaintiff, v. TEXTRON, INC., Tennessee Gas Pipeline Co., Archer-Daniels-Midland Co., Armstrong World Industries, Inc., Burlington Northern Railroad Co., Quantum Chemical Corp., and John Does Numbers 1 through 15, Defendants.
• Court: U.S. District Court — Northern District of Florida

888 F. Supp. 1116

REICHHOLD CHEMICALS, INC., Plaintiff, v. TEXTRON, INC., Tennessee Gas Pipeline Co., Archer-Daniels-Midland Co., Armstrong World Industries, Inc., Burlington Northern Railroad Co., Quantum Chemical Corp., and John Does Numbers 1 through 15, Defendants.

No. 92-30393-RV.

United States District Court, N.D. Florida, Pensacola Division.

May 17, 1995.

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H. Edward Moore, Jr., Moore, Hill & Westmoreland, Pensacola, FL, Lawrence P. Schnapf, Pro Hac Vice, Gary T. Grassey, Pro Hac Vice, Lord Day & Lord, Barrett Smith, Douglas R. Hirsch, Pro Hac Vice, William A. Ruskin, Pro Hac Vice, Schulte, Roth & Zabel, New York City, for Reichhold Chemicals, Inc.

James M. Wilson, Wilson, Harrell & Smith, P.A., Pensacola, FL, Daniel H. Squire, Pro Hac Vice, Amey C. Winterer, Pro Hac Vice, Wilmer, Cutler & Pickering, Washington, DC, for Textron Inc.

Kathryn B. Nixon, Pro Hac Vice, Ackerman, Senterfitt & Eidson, Orlando, FL, William H. Farley, Jr., Rebecca L. Raftery, Pro Hac Vice, Jenner & Block, Chicago, IL, for Tenneco Inc.

Kathryn B. Nixon, Pro Hac Vice, Ackerman, Senterfitt & Eidson, Orlando, FL, Robert A. Emmanuel, Emmanuel Sheppard & Condon, P.A., Pensacola, FL, William H. Farley, Jr., Rebecca L. Rafferty, Pro Hac Vice, Jenner & Block, Chicago, IL, Deirdre M. Mullen, Sarah E. Davies, Pro Hac Vice, Morgan, Lewis & Bockius, Philadelphia, PA, Stephen Leermakers, Pro Hac Vice, Ashland Chemical Co., Div. of Ashland Oil, Inc., Columbus, OH, James A. Dixon, Jr., Collins, Shipman & Lucas, Tallahassee, FL, for Tennessee Gas Pipeline Co.

Robert P. Gaines, Beggs & Lane, Pensacola, FL, for Burlington Northern R. Co.

Keith E. Rounsaville, Keith E. Rounsaville P.A., Tampa, FL, for Quantum Chemical Corp.

Barney J. Chisolm, Jr., State of Fla., Dept. of Environmental Regulations, Tallahassee, FL, for amicus curiae State of Fla. Dept. of Environmental Regulation.

Richard J. Kissel, Pro Hac Vice, Deborah H. Bornstein, Pro Hac Vice, Gardner, Carton & Douglas, Chicago, IL, William H. Clark, Jr., Clark, Partington, Hart, Larry, Bond, Stackhouse & Stone, Pensacola, FL, for Archer Daniels Midland Co.

Kendrick Tucker, Huey, Guilday, Kuersteiner & Tucker, Donald L. Tucker, Donald L. Tucker, P.A., Law Offices, Tallahassee, FL, for Armstrong World Industries, Inc.

Denis V. Brenan, Pro Hac Vice, Michael R. Dillon, Pro Hac Vice, Deirdre M. Mullen, Sarah E. Davies, Pro Hac Vice, Morgan, Lewis & Bockius, Philadelphia, PA, Stephen Leermakers, Pro Hac Vice, Ashland Chemical Company, Div. of Ashland Oil, Inc., Columbus, OH, James A. Dixon, Jr., Collins, Shipman & Lucas, Tallahassee, FL, for Ashland Oil Co.

ORDER

VINSON, District Judge.

Pending is the motion of defendant Quantum Chemical Corp. for summary judgment. (doc. 317). Also pending is plaintiff Reichhold Chemicals Inc.'s cross-motion for partial summary judgment on liability on Counts I, II, and III of the complaint. (doc. 327).

I. BACKGROUND

Except as noted, the following facts are undisputed in the record. This lawsuit involves environmental contamination at an industrial site in Pensacola, Florida. The site is currently owned by plaintiff Reichhold Chemicals, Inc. ("Reichhold") and third-party defendant Arizona Chemical Co. ("Arizona").¹ For more than 70 years, various parts of this site have been utilized by many former owners for manufacturing purposes. Over the years these manufacturers disposed of a variety of hazardous substances at the site, resulting in a myriad of environmental problems.

The industrial operations at the site began in 1916. At different times, the property has been variously divided into several distinct parcels. There were numerous changes of ownership of the various parcels over the years, and it appears that all of the former owners have undergone mergers and name changes. I set out only that part of this complex history necessary to the resolution of these motions.

In 1916, Newport Turpentine and Rosin Co. ("Newport") began an operation on part of the site to extract rosin, pine oil, turpentine, and other products from the stumps of pine trees. In 1939, U.S. Industrial Chemicals, Inc. ("U.S.I.") built a manufacturing facility on part of the site adjacent to the Newport facility. U.S.I. purchased rosin from Newport and used it as the basic material in its own resin production operation. U.S.I. operated the facility from 1939 until 1951. On July 31, 1951, U.S.I. merged into National Distillers Product Corp. ("National Distillers"), and National Distillers became the owner and operator of the former U.S.I. plant at the site. In 1954, National Distillers sold its interests in the site to defendant Archer-Daniels-Midland Co. On May 1, 1957, National Distributors was renamed National Distillers and Chemical Corp., and on January 4, 1988, became Quantum Chemical Corp. (collectively "Quantum").

On June 5, 1984, plaintiff Reichhold entered into a Consent Order with the Florida Department of Environmental Regulation ("FDER"), which obligated it to undertake various measures to investigate and remediate the contamination of groundwater on and under, and storm water runoff from, a portion of the site. Reichhold has since taken a number of costly steps to meet its obligation under the consent order. On July 29, 1985, defendant Textron, Inc. ("Textron") entered a similar consent order with FDER, agreeing to remediate pollution on another part of the site where Textron's Spencer Kellogg division had conducted a hard resin manufacturing operation and had operated what was called the "Spencer-Kellogg Basin" ("SKB"), a wastewater disposal site.² The consent order required Textron to drain and dispose of wastewater in the SKB, test the remaining sludge, and remove and dispose of any contaminated sludge. In addition, Textron was required to develop and implement a groundwater corrective action. However, the order also provided that if Textron could demonstrate that Reichhold's groundwater corrective action plan addressed the groundwater contamination problems caused by Textron's activities, Textron would not have to treat groundwater, but only close the SKB. In 1987, as a result of demonstrating to FDER that Reichhold's corrective actions were addressing the groundwater contamination at the site, Textron was relieved of further obligations under the order.

On October 16, 1992, Reichhold brought this action against eight separate defendants to recover its current and anticipated response costs. All of the defendants (except Burlington Northern Railroad Co.) are former owners of at least some of the site. Count I of the complaint seeks to recover Reichhold's response costs in remediating the site, pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") 42 U.S.C. § 9607(a). Count II seeks contribution from the defendants for Reichhold's response costs, pursuant to Section 113(f) of CERCLA 42 U.S.C. § 9613(f). Count III seeks a declaratory judgment that the defendants are liable for Reichhold's future response costs under Section 113(g)(2) of CERCLA 42 U.S.C. § 9613(g)(2). Counts IV through XV purport to state various Florida statutory and common law causes of action. Of these fourteen counts, the ones applicable to Quantum are Count IV, which alleges a violation of the Florida Pollutant Spill Prevention and Control Act § 376.30, Fla.Stat.; Count VI, which seeks contribution under the Florida Uniform Contribution Among Joint Tortfeasors Act § 768.31, Fla.Stat.; and Counts VII through XII, which allege common law claims for indemnification, strict liability, nuisance, negligence, trespass, and restitution, respectively. Quantum has now moved for summary judgment.

II. ANALYSIS

A. Summary Judgment Standard.

A motion for summary judgment should be granted when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. As the Supreme Court of the United States has instructed, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987).

However, summary judgment is improper "if a reasonable fact finder could draw more than one inference from the facts, and that inference creates a genuine issue of material fact." Cornelius v. Highland Lake, 880 F.2d 348, 351 (11th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990). An issue of fact is "material" if it might affect the outcome of the case under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211 (1986). It is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Id. See also Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986).

On summary judgment motion, the record and all inferences that can be drawn from it must be viewed in the light most favorable to the non-moving party. See Souran v. Travelers Ins. Co., 982 F.2d 1497, 1502 (11th Cir.1993).

B. Quantum's Motion for Summary Judgment.

Quantum's motion for summary judgment makes three distinct arguments. First, Quantum asserts that it is entitled to summary judgment on Counts I and III of the complaint because a "liable" party may not bring a CERCLA contribution claim except as provided in Section 113(f). Second, Quantum contends...