U.S. v. Tropical Fruit, S.E.

• Decision Date: 31 March 2000
• Docket Number: No. 97-1442 DRD.,97-1442 DRD.
• Parties: UNITED STATES of America, Plaintiff, v. TROPICAL FRUIT, S.E., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

96 F.Supp.2d 71

UNITED STATES of America, Plaintiff, v. TROPICAL FRUIT, S.E., et al., Defendants.

No. 97-1442 DRD.

United States District Court, D. Puerto Rico.

March 31, 2000.

Cindy Gines-Sanchez, Mayaguez, PR, for Movant.

German A. Gonzalez, San Juan, PR, Luis Sanchez-Betances, Sanchez Betances & Sifre, San Juan, PR, for Defendants.

Isabel Munoz-Acosta, U.S. Attorney's Office Distict of P.R., Civ. Div., Hato Rey, PR, for Plaintiff.

ORDER

DOMINGUEZ, District Judge.

Pending before the Court is the Plaintiff's, United States of America ("USA"), motion for partial summary judgment on liability (Docket No. 42). The Defendants, Tropical Fruit, S.E., Avshalom Lubin, Cesar Otero Acevedo, and Pedro Toledo Gonzalez (collectively "Tropical Fruit"), then filed an opposition to the motion for partial summary judgment and cross motion for partial summary judgment on issue of liability under CERCLA (Docket No. 48), an opposition to motion for summary judgment on issue of liability under FIFRA (Docket No. 50), and an opposition to Plaintiff's Rule 311.12 statement of uncontested material facts. (Docket No. 51). Thereafter the USA filed its opposition to Tropical Fruit's cross motion for partial summary judgment. (Docket No. 52). Tropical Fruit replied to the USA's opposition. (Docket No. 54). The Court is ready to rule.

I. BACKGROUND

Tropical Fruit, S.E., is a special partnership duly formed pursuant to Puerto Rico law. (Docket No. 42, SOF 1). Its general partners are Avshalom Lubin,¹ Cesar Otero Acevedo, and Pedro Toledo Gonzalez (also president).² (Docket No. 42, SOF 46). Tropical Fruit owns and operates a finca (English translation "farm") or agricultural facility located at road number 335, kilometer 7.2, Rural Zone Boca, Guayanilla, Puerto Rico. The farm consists of approximately 2,300 acres where mangoes, plantains, and bananas are grown.

Succinctly, the USA alleges that Tropical Fruit has violated federal law Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq., and the Comprehensive Environmental Response Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., during the operations of its pesticides applications. The government asserts that Tropical Fruit when spraying pesticides would frequently spray in such a manner as to cause the pesticides to unlawfully drift onto adjacent properties. To quell Tropical Fruit's illegal pesticides usage, the Environmental Protection Agency ("EPA"), pursuant to CERCLA, issued an Administrative Order ("EPA Order"), dated December 20, 1996, requiring Tropical Fruit, inter alia, to cease spraying pesticides that are or contain hazardous substances in such a manner that the pesticides drift beyond the boundaries of its property. (Docket No. 42, Attachment 2— Exhibit 2 ¶ 32); see also 42 U.S.C. § 9606(a). The USA maintains that Tropical Fruit nevertheless continued to spray pesticides allowing drift on at least seven (7) separate occasions in contravention of the EPA Order. The USA filed the instant suit on March 26, 1997. (Docket No. 1).

In addition to hand spraying, Tropical Fruit has applied pesticides via two types of airblast sprayers—the "Smart Sprayer" and the "Tower Sprayer". Tropical Fruit applies or has applied numerous "pesticides" within the meaning of Sections 2(u) and 12 of FIFRA, see 7 U.S.C. §§ 136(u) and 136j, to its crops, including Benlate, Captan 50, Diazinon 500-AG, Dithane F-45, Kocide 101, Kocide LF, Malathion 25%, Microsperse Wettable Sulphur, Neemix, Soluble Oil Spray, Supracide 2-E, and Tenn-Cop 5E. Of these pesticides, Captan 50, Diazinon 500-AG, Dithane F-45, Kocide 101, Kocide LF, Malathion 25%, Supracide 2E, and Tenn-Cop 5E are, or contain, hazardous substances as that term is defined by Section 101(14) of CERCLA. See 42 U.S.C. § 9601(14). Pursuant to this Court's Order dated November 19, 1997, Tropical Fruit applies pesticides in Farm sectors 1 through 8 by either Tower Sprayer or hand spraying. Allegedly, pesticide applications conducted with both the Smart Sprayer and the Tower Sprayer have resulted in numerous incidents of pesticides drifting into the community. "Drift" is the offsite movement of pesticide droplets, particles, and vapor.

An Interim Order on Consent ("IOC") was filed by the parties on March 26, 1997. (Docket No. 2). The IOC explicitly restricts Tropical Fruit's application of pesticides to intervals when the wind speed is low (e.g., sectors 1-8—between 2 mph and 6 mph; all other sectors—between 2 mph and 10 mph), thereby reducing the possibility of pesticides drifting and prohibits Defendants from operating in a manner that results in drift of pesticides or hazardous substances (collectively, "Pesticides") that drift beyond the boundaries of the Farm. Despite the IOC, the USA avers that Defendants violated its terms.

Subsequently, the Court entered a modifying order restricting application of pesticides allowing only hand-held sprayer application, after EPA approval, and ordering Defendants to show cause why the Court's modified order should not remain in force. (Docket No. 8). Further, Tropical Fruit was to show cause why the Court should not impose a penalty of $585,000.00 pursuant to the IOC. (Docket No. 8); see also (Docket No. 2, ¶ 24). The Court conducted an evidentiary hearing on its Order to Show Cause, on November 13, 1997, at which time the parties presented evidence, including testimony of expert witnesses. (Docket No. 16). The minutes of that hearing state that "[t]he Court's Order remains in effect, no pesticide or chemical [except fertilizers] shall be sprayed unless there is an agreement by the parties." See id. A second evidentiary hearing on the Order to Show Cause was held on November 19, 1997, whereof the Court heard numerous fact witnesses. (Docket Nos. 17 & 21).

Since then, the Court has allowed Tropical Fruit to resume utilizing with certain application, location, and notification to the government parameters the following pesticides: Microsperse Wettable Sulfur (Docket No. 19); Benlate and Kocide 101 (Docket No. 19); Neemix and Soluble Oil Spray (Docket No. 27); Gowan Malathion 8 (Docket No. 30); Ferbam (Docket No. 37); and Provado 1.6 Flowable (Docket No. 56).

II. SUMMARY JUDGMENT STANDARD

A court should grant summary judgment "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 ..." FED.R.CIV.P. 56(c). "In applying this formulation, a fact is `material' if it potentially affects the outcome of the case," Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997), and "`genuine' if a reasonable factfinder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor." Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir.1997). The court should "`look at the record ... in the light most favorable to ... the party opposing ... the motion' ... [and] indulge all inferences favorable to the party opposing the motion." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975) (quoting Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962)) (citations omitted). However, the nonmovant must "present definite, competent evidence to rebut the motion." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). "The court may consider any material that would be admissible or usable at trial." See 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2721, at 361 (3d ed.1998). "But the court should do no more than this in reviewing the quality of the evidence. Most critically, it must never `weigh the evidence and determine the truth of the matter....'" Lipsett v. University of P.R., 864 F.2d 881, 895 (1st Cir.1988) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). Furthermore, "[n]o credibility assessment may be resolved in favor of the party seeking summary judgment." Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir.1995) (citations omitted). "If, after this canvassing of the material presented, the district court finds that some genuine factual issue remains in the case, whose resolution one way or another could affect its outcome, the court must deny the motion." Lipsett v. University of P.R., 864 F.2d at 895 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 242, 106 S.Ct. at 2505).

"We believe that summary judgment procedures should be used sparingly ... where the issues of motive and intent play leading roles ... It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of `even handed justice.'" Poller v. Columbia Broad. Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); cf. Pullman-Standard v. Swint, 456 U.S. 273, 288-90, 102 S.Ct. 1781, 1790-1791, 72 L.Ed.2d 66 (1982) (discriminatory intent is a factual matter for the trier of fact); see also Coll v. PB Diagnostic Sys., Inc., 50 F.3d 1115, 1121 (1st Cir.1995); Oliver v. Digital Equip. Corp., 846 F.2d 103, 107 (1st Cir.1988); Lipsett v. University of P.R., 864 F.2d at 895. "Under such circumstances, jury judgments about credibility are typically thought to be of special importance." Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir. 1983). However, "even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Ayala-Gerena v. Bristol Myers-Squibb Co., 95...