Schwartzman Inc. v. Atchison Topeka Santa Fe Ry.

• Decision Date: 29 June 1994
• Docket Number: Civ. No. 93-0307 JB.
• Citation: 857 F. Supp. 838
• Parties: SCHWARTZMAN, INC., Plaintiff, v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Defendant.
• Court: U.S. District Court — District of New Mexico

857 F. Supp. 838

SCHWARTZMAN, INC., Plaintiff, v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Defendant.

Civ. No. 93-0307 JB.

United States District Court, D. New Mexico.

June 29, 1994.

COPYRIGHT MATERIAL OMITTED

John M. Eaves, Paul G. Bardacke, David V. Halliburton, Eaves, Bardacke & Baugh, Albuquerque, NM, for plaintiff.

Peter J. Adang, Rita G. Siegel, Peter J. Adang, P.C., Albuquerque, NM, for defendant.

SUMMARY JUDGMENT

BURCIAGA, Chief Judge.

THIS MATTER came on for a hearing on June 28, 1994, on Defendant's February 15, 1994 motion for summary judgment as to counts I, IV, and VIII, Defendant's February 15, 1994 motion for partial summary judgment on counts II and III, and Defendant's February 15, 1994 motion for summary judgment on counts VI and VII. Having reviewed the pleadings, the relevant law, and having heard the arguments of counsel, the Court finds Defendant's motion as to counts I, IV, and VIII is well taken in part and is granted in part. Defendant's motion as to counts II and III is not well taken and is denied. Defendant's motion for summary judgment as to count VI is well taken and is granted. Count VII of Plaintiff's complaint, alleging strict liability for abnormally dangerous activity, must be tried to the Court.

Plaintiff owns land in the South Valley area of Bernalillo County. Defendant Atchison, Topeka and Santa Fe Railway Co. ("ATSF") owns a wood treatment and preservation facility adjacent to Plaintiff's property. From 1908 to 1972, Defendant used this facility to treat and preserve wooden railroad ties. On February 15, 1993, Plaintiff filed a complaint, subsequently removed to federal court, alleging Defendant improperly stored and disposed chemical waste which contaminated the groundwater and rendered Plaintiff's adjacent property unmarketable.

Plaintiff advances numerous theories of recovery. Plaintiff has withdrawn count I. Count II alleges trespass, count III avers private nuisance, count IV is a public nuisance claim, count V (not at issue here) alleges negligence, count VI alleges negligence per se, count VII advances a strict liability cause of action, and count VIII is a claim for punitive damages.

Summary judgment is appropriate only where no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The Court must view the record in the light most favorable to the existence of triable issues. Exnicious v. United States, 563 F.2d 418, 423-24 (10th Cir.1977).

MOTION FOR SUMMARY JUDGMENT ON COUNTS I, IV, AND VIII¹

Injunctive Relief Claims

In count IV of the complaint, Plaintiff avers a public nuisance cause of action, seeking an order of abatement of Defendant's alleged nuisance: "Plaintiff prays for an order of this Court instructing Defendant to abate the public nuisance ... by investigating, containing, and remediating the soil and groundwater. ..." Complaint at ¶ 73. In addition, count III, a private nuisance claim, requests as relief an order enjoining Defendants from further contaminating the groundwater. Defendant requests that the Court dismiss these claims for injunctive relief pursuant to the doctrine of primary jurisdiction.

The United States Environmental Protection Agency ("EPA"), the New Mexico Department of the Environment, ("NMED"), and Defendant ATSF are currently undertaking efforts to investigate and remediate the tie-treatment site. On October 14, 1992, the EPA proposed listing the ATSF site on the National Priorities List ("NPL"). National Priorities List for Uncontrolled Hazardous Waste Sites, Proposed Rule No. 13, 57 Fed.Reg. 47,204 (1992). The NPL is a listing of the nation's most contaminated sites. The ATSF site received a "hazardous ranking system" ("HRS") score of 50. The HRS serves as a screening mechanism and evaluates the relative potential of hazardous substances to threaten health or the environment. Those sites that score 28.5 or greater are eligible for inclusion on the NPL. In a letter from the EPA to ATSF discovered by Plaintiff, the EPA stated, "Generally, when a site receives a hazard ranking system score as high as 50, such as this site did, it is usually placed on the NPL." If and when the site is placed on the NPL, it becomes eligible for CERCLA-financed remedial action in the form of expenditures from the CERCLA Trust Fund, or "Superfund."

Further, ATSF and the EPA are currently negotiating or have already finalized an administrative order on consent for a "remedial investigation and feasibility study" ("RI/ FS"). The purpose of a RI/FS is to assess site conditions and evaluate remedial alternatives. Although a RI/FS is generally conducted after placement on the NPL, the EPA occasionally elects to conduct a RI/FS on a site proposed for NPL listing for various reasons, "such as when the Agency believes that a delay may create unnecessary risks to public health or environment." National Priorities List for Uncontrolled Hazardous Waste Sites, supra, at 47,206. In short, then, Defendant is already engaged in an extensive EPA/NMED-supervised investigation and cleanup of the site, a task that appears to be expedited by the EPA.

The common law doctrine of primary jurisdiction provides courts with flexible discretion to refer certain matters to a specialized administrative agency. The doctrine applies to claims which are properly cognizable in federal court, but which contain some issue within the special competence of an administrative agency. "In cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over." Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). New Mexico law also recognizes the doctrine. "The legislature has created the agency in order to afford a systematic method of factfinding ... and the agency's jurisdiction should be given priority in the absence of a valid reason for judicial intervention." State ex rel. Norvell v. Arizona Public Service Co., 85 N.M. 165, 171, 510 P.2d 98 (1973). The doctrine suspends "the judicial process ... pending referral of the issues to the administrative body for its views." Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1376-77 (10th Cir.1989).

No fixed formula constrains the Court's exercise of its discretion to invoke the doctrine of primary jurisdiction, as the determination is largely fact-specific. Bradford School Bus Transit v. Chicago Transit Authority, 537 F.2d 943, 949 (7th Cir.1976), cert. denied, 429 U.S. 1066, 97 S.Ct. 797, 50 L.Ed.2d 784 (1977). Various factors, however, guide a judge's decision to defer to an agency in this context.

First, the Court should consider whether it is being called upon to decide factual issues which are not within the conventional experience of judges, or are instead issues of the sort that a court routinely considers. Id. at 1377. Should the Court entertain Plaintiff's public nuisance claim, and should Plaintiff prevail on this claim, the Court would have to fashion an appropriate investigatory and remediation order. Such an order would have to specify the proper number and placement of monitoring wells, how deep the wells should be drilled, the adequacy of various proposed sampling methods, And other details of the investigation and cleanup effort. The Court would have to assess whether ATSF has adequately investigated the groundwater contamination, or whether further investigation would be necessary; whether ATSF's methods of remediation are adequate; what level of contamination is tolerable or acceptable; and a myriad other technical matters. Theoretically, the Court could receive extensive expert testimony, or appoint a special master, but such methods would represent a serious drain of judicial resources and would largely duplicate the present efforts of the EPA and the NMED. Evaluating the proper components of such a plan is best left to the EPA, a body that is far better suited to resolve such issues by reason of "specialization, by insight gained through experience, and by more flexible procedure." Far East Conference, 342 U.S. at 575, 72 S.Ct. at 494. If Plaintiff's ultimate goal is remediation of the site, this goal would be achieved faster and more efficiently through the joint efforts of the EPA and the NMED without interference from the Court.

Second, the Court should consider whether Defendant could be subjected to conflicting orders of both the Court and the administrative agency. Should this Court independently determine an appropriate investigatory and remediation plan, aspects of the plan may contradict the pending RI/FS, and subject ATSF to conflicting obligations. One purpose of the doctrine of primary jurisdiction is to promote uniformity and harmony in the regulatory sphere the agency is entrusted to govern. Nader v. Allegheny Airlines, 426 U.S. 290, 303-04, 96 S.Ct. 1978, 1986-87, 48 L.Ed.2d 643 (1976); Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1377 (10th Cir.1989). This purpose would be served in this case by deferring the remedial plan to the EPA and the NMED.

A third factor courts have considered in this context is whether relevant agency proceedings have actually been initiated. In Roberts v. Chemlawn Corp., 716 F.Supp. 364 (N.D.Ill.1989), the court was asked to defer to the EPA the determination of whether certain pesticides were harmful. While the court admitted that deferring technical aspects of the case to the EPA was "far preferable," the court nevertheless declined to invoke the doctrine of primary jurisdiction. Id. at 365....