TEXTRON INC. BY AND THROUGH HOMELITE v. BARBER-COLMAN COMPANY, 3:93-CV-411-P.

• Citation: 903 F. Supp. 1558
• Decision Date: 04 October 1995
• Docket Number: No. 3:93-CV-411-P.,3:93-CV-411-P.
• Court: United States District Courts. 4th Circuit. Western District of North Carolina
• Parties: TEXTRON INC., Acting By and Through its HOMELITE DIVISION, Plaintiff, v. BARBER-COLMAN COMPANY, Burlington Industries, Inc., A.B. Carter, Inc., Hoechst Celanese Corporation, and Dixie Yarns, Inc., Defendants.

903 F. Supp. 1558

TEXTRON INC., Acting By and Through its HOMELITE DIVISION, Plaintiff,
v.
BARBER-COLMAN COMPANY, Burlington Industries, Inc., A.B. Carter, Inc., Hoechst Celanese Corporation, and Dixie Yarns, Inc., Defendants.

No. 3:93-CV-411-P.

United States District Court, W.D. North Carolina, Charlotte Division.

October 4, 1995.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Christopher G. Browning, Jr., Hunton & Williams, Raleigh, NC, Richard C. Belthoff, Jr., Grier and Grier, P.A., Charlotte, NC, Joseph C. Kearfott, Hunton & Williams, Richmond, VA, for Textron, Inc., Acting by and Through its Homelite Division

Benne C. Hutson, Irving M. Brenner, Smith, Helms, Mulliss & Moore, Charlotte, NC, for Barber-Colman Company.

Robert W. Fuller, III, Robinson, Bradshaw & Hinson, Charlotte, NC, for Burlington Industries, Inc.

Stephen R. Berlin, Petree Stockton, Winston-Salem, NC, J. Stephen Shi, Petree Stockton, Winston-Salem, NC, for A.B. Carter, Inc.

Thomas N. Griffin, III, Kevin A. Dunlap, Parker, Poe, Adams & Bernstein, Charlotte, NC, for Hoechst Celanese.

Bradford A. De Vore, Womble, Carlyle, Sandridge & Rice, Charlotte, NC, for Parkdale Mills, Inc.

Amos C. Dawson, III, Maupin Taylor Ellis & Adams, Raleigh, NC, Hugh J. Moore, Jr., Witt, Gaither & Whitaker, P.C., Chattanooga, TN, for Dixie Yarns, Inc.

MEMORANDUM OF DECISION AND ORDER

ROBERT D. POTTER, Senior District Judge.

THIS MATTER is before the Court on Motion by Defendant Dixie Yarns, Inc. ("Dixie") for Summary Judgment, filed December 16, 1994 (document # 78). For the reasons stated herein, that motion will be granted.

An investigation by the United States Environmental Protection Agency ("EPA") and the North Carolina Division of Solid Waste Management ("DSW") confirmed the presence and threatened release of hazardous substances at the so-called "Harwell Road site." That investigation also indicated that Textron Inc. ("Textron") was a principal generator of those hazardous wastes. As a result, the EPA issued an administrative order, pursuant to Section 106 of CERCLA, 42 U.S.C. § 9606, that required Textron to remove the hazardous substances from the site. Textron voluntarily complied with the EPA's order. Later, Textron filed this contribution action to recover some of those costs from the Defendants in this action.

I. BACKGROUND.

In the late 1940's, R.A. McKee began doing business in Gastonia, North Carolina. His business was waste disposal. In connection with that business, he purchased the 10.5 acre property that abuts Harwell and Beatty Roads in 1967. He used that property to dispose of waste picked up from his customers,

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and that property is now referred to as the Harwell Road site.¹

McKee did business with a number of industrial companies in Gaston County. He both constructed and maintained septic systems and removed sludge from their tanks. At some companies his practice was to dispose of the sludge removed from their tanks on their own property. With respect to other companies, however, he removed waste from their holding and treatment tanks by pumping sludge from those tanks into his tanker truck. He then transported that sludge and wastewater to the Harwell Road site and disposed of the waste there. The Harwell Road site was permitted for the disposal of sludge by the Gaston County Health Department.

McKee began using the Harwell Road property to dispose of septic sludge as soon as he purchased it in 1967. His practice was to dig trenches in the ground approximately 30" wide by 6' deep and anywhere from 12" to 20' long. He disposed of sludge by emptying his 2000 gallon tank truck into those trenches, allowing the sludge and wastewater to seep into the ground. Later, McKee would cover the sludges with dirt. McKee conducted his operations this way until about 1978 when he sold his business.

Ultimately, an investigation by the EPA and the North Carolina DSW indicated the presence and threatened release of hazardous substances at the Harwell Road site. That investigation also indicated that Textron was a principal generator of those hazardous wastes. Therefore, in 1989 Textron received an administrative order from the EPA, later revised in May of 1990, pursuant to § 106(a) of CERCLA, 42 U.S.C. § 9606(a). The revised order stated that the migration of hazardous substances from the site constituted an actual or threatened release as defined in Section 101(22) of CERCLA. The order required Textron to remove the hazardous substances from the Harwell Road site as well as conducting other operations designed to render the site safe.

Textron elected to voluntarily comply with the EPA's order. It thereafter performed a variety of tasks including the installation of monitoring wells, hydraulic conductivity testing, metal detector surveys, as well as the sampling and analysis of soils, surface water, groundwater and septic pits. Pursuant to the EPA's order, Textron also excavated, removed, sampled, and disposed of buried drams and their contents off-site, and performed other work required by the EPA. By virtue of the EPA's investigation and Textron's activities many hazardous substances have been detected at the Harwell Road site including zinc, copper, phenol, the BTEX compounds (benzene, toluene, ethyl-benzene and xylene), and a variety of other heavy metals, and volatile and semivolatile compounds.

Later, Textron filed this action to recover some of the costs incurred to comply with the EPA's order from the Defendants in this action. According to Textron, the Defendants also generated some of the hazardous substances found at the Harwell Road site, and therefore, they are liable for some share of the costs Textron incurred to remove those wastes as well as any future costs incurred by Textron to comply with EPA mandates.

All of the Defendants have moved for summary judgment. In large part, the motions for summary judgment before the Court arise from the passage of time. McKee hauled waste generated by his customers to the Harwell Road site between 1967 and 1978 and he was 85 years old at the time of his deposition on May 19, 1994. Although he had kept the books for his business, those records were destroyed in a fire that occurred around 1979 or 1980. So he is the only source of information concerning his waste-hauling business. Similarly, the passage of time has limited the documentary and other evidence about the Defendants' operations available through discovery. Textron's efforts to discover the chemicals used in connection with the Defendants' processes of production has met with little results. Thus, the documentary evidence upon which Textron relies is fairly slim. And ultimately, it is this sparsity of evidence that drives all of the

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motions for summary judgment now before the Court. In one way or another, all of the Defendants assert that Textron has failed to produce evidence from which a reasonable person could conclude that their processes of production generated hazardous substances and/or that those hazardous substances were hauled by McKee to the Harwell Road site

II. ANALYSIS.

In this case, Textron seeks contribution from the Defendants for their proportionate share of response costs etc. incurred by Textron in connection with its remediation of the Harwell Road site. As previously noted by this Court, according to the plain language of § 113 of CERCLA, 42 U.S.C. § 9613(f)(1), Textron's contribution action in this case arise under § 107 of CERCLA, 42 U.S.C. § 9607. That section imposes strict liability on certain classes of persons described therein, and does not require any showing that the specific hazardous wastes generated by a given defendant caused the release of hazardous substances that results in remedial action. U.S. v. Monsanto Co., 858 F.2d 160, 167-68 (4th Cir.1988). Liability under CERCLA is joint and several unless a defendant can show that damages are divisible. See e.g. Monsanto, 858 F.2d at 171 & n. 3; U.S. v. Alcan Aluminum Corp., 964 F.2d 252, 267-71 (3rd Cir.1992) (discussing cases).

Taken together § 9613(f)(1) and § 9613(g)(3) confirm that Textron has a right to contribution from the Defendants if it can show that the Defendants are liable for response costs etc. under § 9607. In pertinent part that section provides:

§ 9607

(a) Covered persons; scope

* * * * * *

(3) any person who by contract, agreement, or otherwise arranged for disposal ... of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, shall be liable for

* * * * * *

(b) any other necessary costs of response incurred by any other person consistent with the national contingency plan;

42 U.S.C. § 9607(a). In this case, Textron must show that the Defendants arranged with McKee for the disposal of wastes containing hazardous substances, and those wastes are at the Harwell Road site.

The Defendants have moved for summary judgment pursuant to Fed.R.Civ.Proc. 56, alleging that Textron has failed to produce evidence from which a reasonable person could conclude that any Defendant generated hazardous substances that were disposed of at the Harwell Road site. "Under Rule 56(c), summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) citing Fed.R.Civ.Proc. 56(c). However, Rule 56 does not require the moving party to produce evidence negating an opponent's claim. Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2553. That is, "under Celotex, `the moving party on a summary judgment motion...