Trinity Indus., Inc. v. Chi. Bridge & Iron Co.
| Decision Date | 04 April 2012 |
| Docket Number | Civil Action No. 08–1709. |
| Citation | 867 F.Supp.2d 754 |
| Parties | TRINITY INDUSTRIES, INC. and Trinity Industries Railcar Corporation, Plaintiffs, v. CHICAGO BRIDGE AND IRON COMPANY, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
OPINION TEXT STARTS HERE
Frederick W. Addison, III, Nolan C. Knight, Munsch Hardt Kopf & Harr, Dallas, TX, Leonard G. Ambrose, III, Ambrose Law Firm, Erie, PA, for Plaintiffs.
Cathleen M. Devlin, George E. Rahn, Jr., Christina D. Riggs, Saul Ewing LLP, Philadelphia, PA, for Defendant.
This is an environmental law action. Plaintiffs, Trinity Industries, Inc. and Trinity Industries Railcar Corporation (collectively, “Trinity”) bring federal claims under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq., and the Resource Conservation Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq.1 Trinity also brings state claims under Pennsylvania's Hazardous Sites Cleanup Act (“HSCA”), 35 Pa.Stat. § 6020.101, et seq., and various common law and contract theories. Trinity alleges that it is entitled to injunctive and monetary relief from Chicago Bridge and Iron Company (“CBI”) for the remediation of an industrial site, which Trinity is undertaking pursuant to a court order. CBI asserts a counterclaim against Trinity for contribution under CERCLA section 113(f)(1).
This matter is before the court on Trinity's motion for partial summary judgment [Doc. No. 54] and CBI's motion for summary judgment [Doc. No. 56]. Trinity moves for summary judgment of its federal claims under CERCLA and RCRA, its state claims under HSCA, and its indemnification and breach of contract claims. CBI moves for summary judgment on all Trinity's claims.2
For the following reasons, Trinity's motion for partial summary judgment will be denied and CBI's motion for summary judgment will be granted, without prejudice to Trinity's right to reassert its state law claims in state court.
Unless otherwise indicated, the following material facts are undisputed. Additional material facts may be discussed elsewhere in this memorandum, in context.
At various times, Trinity and CBI owned, and conducted industrial activity on, an approximately 53 acre site in Greenville, Pennsylvania (the “Site”). CBI owned the Site from around 1911 to 1985. In 1985, CBI sold the Site to MBM Realty Associates (“MBM”). MBM sold the Site to Trinity in 1988. Trinity has continuously owned the Site from 1988 to the present.
In or about 1911, CBI began fabricating steel products on the Site. These steel products included storage tanks, pressure vessels, conical structures for U.S. Navy submarines, water towers, and bridge components. CBI engaged in various industrial processes in connection with manufacturing these products, including sand blasting and painting. The parties dispute facts relating to the specific processes and handling of the waste products generated by these processes. CBI ceased its manufacturing operations on the Site in 1982.
In 1985, CBI sold the Site to MBM. As part of the sale, CBI and MBM entered into an indemnification agreement (the “Agreement”). The Agreement reads, in pertinent part:
CBI hereby agrees to indemnify and hold harmless MBM from any and all claims, costs, liabilities, fines, penalties, and damages of any kind whatsoever in connection with violations or claimed violations of either Federal or Pennsylvania state law in connection with storage, use, disposal, discarding or removal of any hazardous, toxic or other environmentally sensitive materials or waste products, generated or used in connection with the operation of [the fabrication plant located on the Site] .... This indemnity shall relate only to claims or damages arising on account of actions of CBI[,] The indemnity herein ... shall inure to the benefit of any and all successors and assigns of MBM.
During its ownership, MBM leased the Site to Quality Steel Fabricators, Inc. (“QSF”) and Sha Co Welding & Fabrication (“Sha Co”). QSF operated a steel fabrication job shop on the Site from mid–1985 through late 1989. Sha Co manufactured steel dumpsters and steel safety bottle racks on the Site from mid–1987 through mid–1989.
Trinity purchased the Site from MBM in November 1988. As part of this sale, MBM assigned to Trinity the Agreement, transferring MBM's “right, title and interest in and to the Indemnification Agreement” to Trinity.
From approximately 1988 to 2000, Trinity operated a railcar manufacturing facility on the Site. The Trinity railcars manufactured at the Site were made primarily of steel. Trinity used various products, including paint, in its railcar manufacturing processes. Trinity acknowledges that paint spills sometimes occurred, but disputes the existence of evidence connecting paint spills or use of other products in its manufacturing processes to contamination at the Site.
In June 2004, the Environmental Crimes Section of the Bureau of Criminal Investigation of the Pennsylvania Office of the Attorney General began investigating Trinity for violations of state environmental laws in connection with Trinity's railcar manufacturing operations. This investigation involved interviews of former Trinity employees and soil testing at the Site.
On March 31, 2006, as a result of the investigation, the Commonwealth of Pennsylvania filed criminal and civil charges against Trinity. The Commonwealth's criminal complaint contained eleven counts against Trinity, including felony and misdemeanor counts for unlawful storage, transport, and disposal of hazardous waste. On October 31, 2006, Trinity pleaded nolo contendre to five misdemeanor counts of unlawful conduct.
On December 21, 2006, Trinity entered into a Consent Order and Agreement (the “Consent Order”) with the Pennsylvania Department of Environmental Protection (“PADEP”).3 That same day, the Court of Common Pleas of Mercer County, Pennsylvania ordered Trinity to remediate all environmental contamination at the Site in accordance with the Consent Order.
The Consent Order contains a series of findings, admitted by Trinity, including the following: PADEP also found that Trinity is a “responsible person” under HSCA for the release or threatened release of hazardous substances at the Site.
The Consent Order imposes a remediation process closely supervised by PADEP. It provides that “Trinity shall obtain prior approval from [PADEP] and conduct the Response Actions in accordance with the [PADEP]-approved schedule to fully investigate and respond to the release of hazardous substances at the [Site.]” The cleanup standards for the Site are to be “selected by Trinity” and approved by PADEP pursuant to Chapter 3 of Pennsylvania's Land Recycling and Environmental Remediation Standards Act, 35 Pa.Stat. §§ 6026.302–6026.303.
In order to comply with its cleanup requirements, Trinity was required to submit to PADEP a proposed Investigation Work Plan, a proposed Supplemental Investigation Work Plan, and a Notice of Intent to Remediate. Trinity was also required to submit a Remedial Investigation Report and Cleanup Work Plan. According to the Consent Order, The Consent Order defines “Response Actions” as follows: “any and all of the actions taken or to be taken by [PADEP], Trinity, and/or any other responsible persons under the direction of [PADEP], relating to and addressing the release and threatened release of any hazardous substances at the [Site.]” The Consent Order provides for additional steps culminating in a PADEP approved Final Report.
Pursuant to the terms of the Consent Order, Trinity retained Golder Associates Inc. (“Golder”) to perform a remedial investigation of the Site. Golder submitted a Remedial Investigation Report (“RI Report”) to PADEP on March 1, 2010, and the RI Report was approved by PADEP on March 31, 2010. Golder submitted a Cleanup Work Plan on March 25, 2011.
According to the Cleanup Work Plan, there are four potential pathways for exposure to contaminants at the Site: (1) human ingestion or uptake of manganese-impacted groundwater; (2) exposure of Site workers or Site trespassers to lead-impacted soil; (3) exposure of Site workers to volatile organic compound vapors at the Site; and (4) exposure of humans, flora and fauna to lead-impacted surface water and sediments.
According to the RI Report, “[t]he dominant [constituents of concern] at the Site, in terms of concentration and extent of exceedances, are lead in soil and manganese in groundwater.” [Doc. No. 60, Exh. 28, part A at 11.] The RI Report indicates that the groundwater manganese is naturally occurring. It attributes the lead in the soil to “former paint drying, pickling, and sand blasting areas; former waste acid filter pond area; and fill areas.” Id.
The parties dispute each other's characterizations of the observations and conclusions concerning the Site contained in the Remedial Investigation Report and the Cleanup Work Plan.
The court shall grant summary judgment only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If the moving party meets its burden of proving that no genuine issue of...
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