Stewman v. Mid-South Wood Products of Mena, Inc., Civ. No. 91-2047.

• Decision Date: 23 January 1992
• Docket Number: Civ. No. 91-2047.
• Citation: 784 F. Supp. 611
• Parties: David STEWMAN, et al., Plaintiffs, v. MID-SOUTH WOOD PRODUCTS OF MENA, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Arkansas

784 F. Supp. 611

David STEWMAN, et al., Plaintiffs, v. MID-SOUTH WOOD PRODUCTS OF MENA, INC., et al., Defendants.

Civ. No. 91-2047.

United States District Court, W.D. Arkansas, Fort Smith Division.

January 23, 1992.

COPYRIGHT MATERIAL OMITTED

Robert D. Ridgeway, Jr. and Kenneth Breckenridge, Ridgeway & Breckenridge, Hot Springs, Ark., for plaintiffs.

Philip M. Clay, Wood, Smith, Schnipper & Clay, Hot Springs, Ark., Bill Thompson and Richard Spearman, Thompson & Llewellyn, Fort Smith, Ark., for Mid-South.

P.K. Holmes, Warner & Smith, Fort Smith, Ark., for Edward Hines Lumber Co. and EHLCO.

Bob Jones, III, Jones, Gilbreath, Jackson & Moll, Fort Smith, Ark., for B & F Engineering, Inc.

Mike Shaw, Shaw, Ledbetter, Hornberger, Cogbill & Arnold, Fort Smith, Ark., Joseph G. Manta and Joel Schneider, Manta & Welge, Philadelphia, Pa., for Rollins.

Ben Core, Daily, West, Core, Coffman & Canfield, Fort Smith, Ark., John G. Parker and Craig Pendergrast, Paul, Hastings, Janofsky & Walker, Atlanta, Ga., for Law Engineering, Inc.

Richard Spritzer, U.S. Dept. of Justice, Environmental Defense Section, Washington, D.C., for EPA.

Marsha T. Foster, Mitchell, Williams, Selig, Gates & Woodyard, Little Rock, Ark., for Dale Rogers.

MEMORANDUM OPINION

MORRIS SHEPPARD ARNOLD, District Judge.

In the early 1980s, state and federal environmental authorities began investigating alleged discharges of hazardous wastes from a lumber treatment plant in Polk County, Arkansas. In March, 1988, the Environmental Protection Agency, a federal authority, sued Hines Lumber Company and Mid-South Wood Products,¹ seeking to enjoin further discharges and to require those companies to clean up the affected area or to repay the federal government for the cost of doing so. In May, 1988, the two companies and the EPA agreed to a consent judgment that mandated specific remedial actions by Hines and Mid-South. Hines was dissolved as a corporation around that time, but the EHLCO Trust was established to carry out Hines's responsibilities under the decree.

The plaintiffs own land near the lumber treatment plant. They now sue the EPA,² alleging that the remedial plan specified by the consent decree was inadequate in scope, was negligently carried out, and failed to prevent further contamination of their land and water supplies. The plaintiffs ask for damages and for an order requiring the EPA to reopen and expand the remedial plan for the affected area.

The plaintiffs characterize their claims as arising under federal environmental statutes and state common law. The EPA now moves for summary judgment, arguing that the plaintiffs have failed to offer any evidence that would subject the EPA to liability for damages under the federal law in issue, that the plaintiffs have failed to exhaust their administrative remedies as to the claims based on state law, and that the reopening order sought is not within the power of the court. The motion will be granted.

I.

The plaintiffs bring their federal claims under the Comprehensive Environmental Response, Compensation, and Liability Act. See 42 U.S.C. §§ 9601-9675. That law establishes an extensive scheme for evaluating the extent of damage from hazardous wastes, devising appropriate remedial measures, determining the costs to individuals and to federal and state governments of implementing those measures, and assessing those costs against persons who are liable for them under the language of the statute.

The act provides that the following persons may be liable for the costs of remedial measures—"the ... operator of ... a facility,"³see 42 U.S.C. § 9607(a)(1); "any person who at the time of disposal of any hazardous substance ... operated any facility where such hazardous substances were disposed of," see 42 U.S.C. § 9607(a)(2); "any person who ... arranged for disposal or treatment of hazardous substances possessed by such person at any facility ... owned or operated by another party and containing such hazardous substances," see 42 U.S.C. § 9607(a)(3); and "any person who accepts ... any hazardous substances for transport to disposal or treatment facilities ... or to sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance," see 42 U.S.C. § 9607(a)(4). See also 42 U.S.C. § 9607(a)(4)(B). The EPA, as an agency of the federal government, may be such a "person." See 42 U.S.C. § 9601(21) and 42 U.S.C. § 9620(a)(1).

Liability under the statute is generally strict and subject to very narrow defenses. See, e.g., General Electric Co. v. Litton Industrial Automation Systems, Inc., 920 F.2d 1415, 1418 (8th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1390, 113 L.Ed.2d 446 (1991); see also 42 U.S.C. § 9607(b). If, however, the acts allegedly giving rise to liability were "taken or omitted in the course of rendering care, assistance, or advice in accordance with the National Contingency Plan,"⁴ then negligence must be proved. See 42 U.S.C. § 9607(d)(1).

The EPA contends, first, that all of its acts relative to the site in question were done under its authority "to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action" relating to the release of threatened release of hazardous substances, pollutants, and contaminants, see 42 U.S.C. § 9604(a)(1); see also Exec. Order No. 12580, § 2(g), 3 C.F.R. 193, 195 (1987 comp.), reprinted in 42 U.S.C.A. § 9615 notes at 225 (1991 supp.), and thus in the course of "rendering care, assistance, or advice" consistent with that plan. See 42 U.S.C. § 9607(d)(1). In support of this contention, the EPA submits an affidavit from the EPA employee who is in charge of directing the remedial efforts specified for the site at issue in this case. See generally 40 C.F.R. § 300.120, § 300.135. That affidavit summarizes the actions of the EPA in deciding how to clean up the site and in overseeing that remedial work. See generally 40 C.F.R. §§ 300.400-300.435. The affidavit is supplemented with various administrative records documenting the EPA's activities.

In their brief, the plaintiffs dispute that all of the EPA's actions relative to the site were within its authority or in accordance with the national contingency plan. They offer, however, no specific allegations of acts inconsistent with either the grant of authority to the EPA, see 42 U.S.C. § 9604(a)(1), or the provisions of the national contingency plan, see 42 U.S.C. § 9607(d)(1). Nor do they offer any evidence that would allow the court to find that the EPA was negligent in its conduct. See id. Under these circumstances, the court holds that the plaintiffs have failed to establish the existence of a genuine issue of material fact as to the liability of the EPA for any damages suffered by the plaintiffs. See Fed.R.Civ.P. 56(e). The court therefore grants the EPA's motion for summary judgment as to the plaintiffs' federal claim for damages and dismisses that claim with prejudice.

II.

The EPA asserts that the claim based on state law must be dismissed as well, since the plaintiffs have failed to exhaust their administrative remedies. The court agrees.

The claim against the EPA based on state law is apparently for negligence. Liability of the federal government, if any, on this claim may be pursued only under the Federal Tort Claims Act, see 28 U.S.C. § 2679(a); see also 28 U.S.C. § 1346(b). See, e.g., Peak v. Small Business Administration, 660 F.2d 375, 377 (8th Cir.1981).

Under that act, all claims must first be presented to the agency in question. See 28 U.S.C. § 2675(a). Unless a claim has been filed with the agency in question, moreover, a district court lacks jurisdiction over a lawsuit asserting the same claim. See, e.g., Bor-Son Building Corp. v. Heller, 572 F.2d 174, 177 (8th Cir.1978).

The EPA submits an affidavit from the person who maintains the record of administrative claims filed against the EPA. The affidavit asserts that no administrative claim from any of the plaintiffs has been filed with the EPA. The plaintiffs offer nothing to rebut this affidavit and in fact concede this point. Under these circumstances, the court holds that it lacks jurisdiction to consider the state tort claim against the EPA. That claim is therefore dismissed without prejudice.⁵

III.

Finally, the EPA argues that the court lacks the power to order the EPA to reopen its remedial activities in relation to the site at issue, as the plaintiffs ask. The court agrees.

Such an order could be obtained in this case pursuant only to 42 U.S.C. § 9659(a)(2). That statute allows citizens to sue the EPA for an "alleged ... failure ... to perform any act or duty required by 42 U.S.C. §§ 9601-9675 ... which is not discretionary."⁶ See 42 U.S.C. § 9659(a)(2). The relief available in suits of that type is an order to the EPA "to perform the act or duty concerned." See 42 U.S.C. § 9659(c).

The EPA argues that nothing in the law requires it to take remedial action, i.e., that it is discretionary with the agency as to whether to act at all in relation to a particular site containing hazardous wastes. The EPA concludes, then, that the plaintiffs have failed to state a claim that would permit the court to grant this particular request. The court agrees.

The EPA's authority⁷ to conduct remedial action in relation to a site containing hazardous wastes is specified in several provisions. Under 42 U.S.C. § 9604(a)(1), the EPA is "authorized to act ... and provide for remedial action." The statute also provides that "to the extent the EPA deems practicable," any removal action "should ... contribute to the efficient performance of any long term remedial action." See 42 U.S.C. § 9604(a)(2). The statute further provides that as to certain types of releases of hazardous wastes that are ordinarily excluded from the EPA's power to act, see 42 U.S.C. § 9604(a)(3), but that may be considered...