Rudd v. Electrolux Corp.

• Citation: 982 F.Supp. 355
• Decision Date: 06 November 1997
• Docket Number: No. 2:94CV00640.,2:94CV00640.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Margaret Long RUDD, Plaintiff, v. ELECTROLUX CORPORATION, et al., Defendants.

982 F.Supp. 355

Margaret Long RUDD, Plaintiff, v. ELECTROLUX CORPORATION, et al., Defendants.

No. 2:94CV00640.

United States District Court, M.D. North Carolina.

November 6, 1997.

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Leonard A. Colonna, Joseph Francis McNulty, Jr., Robert A. Ford, Melissa Robin Davis, Tuggle Duggins & Meschan, P.A., Greensboro, NC, for plaintiff.

F. Hill Allen, IV, L. Neal Ellis, Jr., Matthew Patrick McGuire, Hunton & Williams, Raleigh, NC, for defendants.

ORDER

ELIASON, United States Magistrate Judge.

Plaintiff Margaret Long Rudd ("Rudd") originally filed this action in state court alleging that groundwater on her property became contaminated through migration from adjoining property owned now or in the past by defendants. As defendant, Rudd named Electrolux Corporation, d/b/a Lawrence Industries ("Electrolux"). After Electrolux removed the case to this Court, plaintiff amended her complaint to allege identical state law causes of action against defendant SLE, Inc. ("SLE") a former owner of the Electrolux property. No federal law claims are involved. The Court's jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332. The parties have filed cross-motions for summary judgment.

Plaintiff alleges five state law causes of action against the defendants. The first asserts a discharge of a hazardous substance in violation of North Carolina's Oil Pollution and Hazardous Substances Control Act of 1978 ("OPHSCA"), N.C.Gen.Stat. § 143-215.75, et seq. This is a strict liability statute. Plaintiff next alleges that OPHSCA and related water quality regulations establish a duty of care, the violation of which constitutes negligence per se. Plaintiff then asserts causes of action for trespass and nuisance as a result of the migration and the threat of migration of material from defendants' land to plaintiff's. The fifth cause of action alleges negligent keeping and control of underground storage tanks (UST's) which permitted the leaks into the ground water. Plaintiff wants damages, and declaratory and injunctive relief with respect to future costs, remedial work, clean-up, etc.

Undisputed Material Facts

Plaintiff owns approximately 66 acres of undeveloped land. The Electrolux property is adjacent to that land and was owned by Sara Lee Corporation from 1975 through 1980. In 1980, SLE obtained ownership of the property. Defendant SLE is or was a wholly owned subsidiary of Sara Lee and operated the manufacturing facility on the property through 1987, when ownership of the property was transferred to Electrolux, the present owner.

A manufacturing facility on the Electrolux property opened in approximately 1974.¹ In 1976, two UST's were installed on the property for the storage of two solvents, i.e., toluene and 1,1,1-trichloroethane ("TCA"). The UST's remained in use until early 1989 and then were removed in July or August 1990. On removal, there was evidence of a hole in the toluene tank and a strong order of both toluene and TCA at the site and near the fill pipe. Soil samples yielded a report of both TCA and toluene. In addition, the following contaminants were found at amounts exceeding the allowable concentration level under North Carolina's Ground Quality Standards, N.C.Admin.Code tit. 15A, r. 2L .0202 (1979): TCA, 1,1-dichloroethene ("DCE"), trichloroethene, chloroform, vinyl chloride, methylene chloride, chloromethane, and benzene. Additional contaminants found were 1,1-dichloroethane ("DCA"), toluene, acetone, carbon disulfide and tetrachloroethane.

As a result of the contamination, the North Carolina Department of Environment, Health, and Natural Resources issued a violation notice and required Electrolux to conduct site assessment and corrective action. Compliance revealed that groundwater on the Electrolux property flowed from the UST's toward the Rudd property. Twenty-seven monitoring wells and seven recovery wells have been installed on the Rudd property. The following contaminants have been determined to exist: TCA, DCE, DCA, chloroform, carbon disulfide, and acetone. Of these, only the DCE and chloroform are at levels exceeding groundwater quality standards. Both plaintiff's and defendants' experts agree that the TCA, DCE, and DCA come from the contamination plume originating on the Electrolux property. It is undisputed that TCA breaks down into DCE and DCA and that the half-life of TCA ranges from 5 months to 1.5 years. (Henry Dep. at 91) Plaintiff fails to connect the chloroform to the contaminant plume coming from the Electrolux property.²

This Court has entered a preliminary injunction against Electrolux requiring it to investigate the extent of the contamination, remediate the Rudd land in accordance with North Carolina Law, and provide a $800,000 letter of credit as surety.

Defendants SLE and Electrolux seek summary judgment dismissal of all of plaintiff's claims, and alternatively, seek rejection of plaintiff's claims for stigma and lost opportunity damages. Defendant SLE presents a sixth issue pertaining solely to it requesting dismissal of the entire complaint on the ground that plaintiff cannot prove that any illegal discharge of contaminants took place while it owned the land.

Plaintiff has filed a motion for partial summary judgment and the entry of a permanent injunction, presenting four issues for review. She seeks the entry of judgment determining defendants' liability as to her OPHSCA, negligence per se, and trespass claims. To the extent these issues implicate defendants' motions, the Court will consider the motions together. Plaintiff's fourth issue requests the entry of a permanent injunction against both defendants requiring them to investigate and remediate the contamination of the Rudd property and to post adequate security. This assumes the Court will grant her partial summary judgment motion.

Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court must view the evidence in a light most favorable to the non-moving party. Pachaly v. City of Lynchburg, 897 F.2d 723, 725 (4th Cir.1990). When opposing a properly supported motion for summary judgment, the party cannot rest on conclusory statements, but must provide specific facts, particularly when that party has the burden of proof on an issue. Id. The mere fact that both parties request summary judgment does not necessarily mean that the material facts are undisputed. World-Wide Rights, Ltd. Partnership v. Combe, Inc., 955 F.2d.242, 244 (4th Cir.1992).

Because all of plaintiff's claims arise under North Carolina law, special rules apply. When state law is unclear, the federal court must rule in such a manner as it appears the highest state court would rule if presented with the issue. Where the state's highest court has not decided the particular issue, the federal court should examine the rulings of the lower state courts. Rulings of the lower courts may be considered as persuasive evidence of state law, but they are not binding on the federal court should it be convinced the highest court would rule to the contrary. Sanderson v. Rice, 777 F.2d 902, 903 (4th Cir.1985), cert. denied, 475 U.S 1027, 106 S.Ct. 1226, 89 L.Ed.2d 336 (1986). Furthermore, the federal court must rule on state law as it exists, as opposed to surmising or suggesting an expansion of state law. Burris Chemical, Inc. v. USX Corp., 10 F.3d 243 (4th Cir.1993).

Issue Number One

Are plaintiff or defendants entitled to summary judgment on Count One alleging violation of OPHSCA?

Plaintiff's first alleged claim for relief arises under the strict liability provisions of OPHSCA. With some exceptions which are not relevant to this case, OPHSCA makes it unlawful

for any person to discharge, or cause to be discharged, oil or other hazardous substances into or upon any waters, tidal flats, beaches, or lands within this State, or into any sewer, surface water drain or other waters that drain into the waters of this State, regardless of fault of the person having control over the oil or other hazardous substances, or regardless of whether the discharge was the result of intentional or negligent conduct, accident or other cause.

N.C.Gen.Stat. § 143-215.83. Plaintiff alleges that defendants' release of TCA and/or its conversion to DCE is a violation of this statute for which defendants are strictly liable.

The parties agree that defendants controlled TCA in a UST which leaked into the surrounding soil and groundwater, and that this TCA, along with its breakdown products (including DCE), migrated onto plaintiff's property. With the basic events clearly established, the only remaining disputes between the parties concern whether or not those events constitute a violation of OPHSCA.

In their motion for summary judgment, defendants advance two arguments, either of which, if successful, would absolve them of liability under OPHSCA. Their first contention is that they never leaked a substance which has been designated "hazardous" under OPHSCA. In the event that the Court should find that defendants did release a "hazardous substance," defendants secondly argue that plaintiff has failed to prove that they released that substance in sufficient quantities to constitute a "discharge" under OPHSCA. Defendants' arguments hinge almost entirely on the definitions of "discharge" and "hazardous substance" as set forth in North Carolina General Statute § 143-215.77 and the statutes and regulations to which it refers.

Subsection (5a) of Section 143-215.77 provides a general definition of "hazardous substance" as "any substance, other than oil, which when discharged in any quantity may present an imminent and substantial...