Weyerhaeuser Corp. v. Koppers Co., Inc.

• Decision Date: 26 February 1991
• Docket Number: Civ. A. No. R-89-261.
• Citation: 771 F. Supp. 1406
• Parties: WEYERHAEUSER CORPORATION, Plaintiff, v. KOPPERS COMPANY, INC., Defendant.
• Court: U.S. District Court — District of Maryland

771 F. Supp. 1406

WEYERHAEUSER CORPORATION, Plaintiff, v. KOPPERS COMPANY, INC., Defendant.

Civ. A. No. R-89-261.

United States District Court, D. Maryland.

February 1, 1991.

On Motion For Reconsideration February 26, 1991.

COPYRIGHT MATERIAL OMITTED

Mark L. Austrian, Collier, Shannon & Scott, Washington, D.C., for plaintiff.

J. Paul Mullen, Lord and Whip, P.A., Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

RAMSEY, District Judge.

Pending before the Court are cross-motions for summary judgment filed by the parties in the above-captioned case. Plaintiff has moved for partial summary judgment on the issue of defendant's liability under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607 (Supp.1987). Defendant has moved for summary judgment on the issue of its liability to plaintiff under both the CERCLA and state law counts contained in plaintiff's complaint; defendant has also moved for summary judgment on its CERCLA counterclaim.

The motions have now been fully and extensively briefed by the parties. Pursuant to Local Rule 105.6, the Court shall decide these motions on the pleadings with no hearing.

I. BACKGROUND FACTS

In 1944 Weyerhaeuser leased to Koppers's corporate predecessor the Baltimore property which is the subject matter of this dispute. The lease was continuously extended from 1944 through 1977, and during those years, Koppers continuously used the property as a wood treatment facility, as was envisioned by the parties when they entered the lease. In 1977, the lease was allowed to expire, and Koppers dismantled its wood treatment facility.

From 1977 through 1986 Weyerhaeuser leased the property to Hobelmann Port Services for use as a storage lot for imported cars. In 1986, Weyerhaeuser agreed to sell the property to Hobelmann. In 1986, also, Weyerhaeuser undertook preliminary environmental studies, apparently in view of the impending sale.¹ The study was completed in November of that year, and it showed that the property was significantly contaminated with creosote, benzene, toluene, ethylbenzene, polyaromatic hydrocarbons, chromium, arsenic and copper. These are chemicals which are used, in various forms, in the treatment of wood. Further investigation has been done since that time. The most recent of the studies submitted by Weyerhaeuser (in its Reply in support of its motion for summary judgment) demonstrates that this contamination originated on the property in question and did not migrate from adjoining sites.²

Weyerhaeuser's complaint against Koppers asserts claims based both on CERCLA and state law. Koppers denies liability on all counts and has also asserted a CERCLA counterclaim against Weyerhaeuser.

On August 16, 1990 Weyerhaeuser filed a motion for partial summary judgment on the issue of Koppers's CERCLA liability. This was fully briefed on September 11, 1990. On November 19, 1990 Koppers filed its own motion for summary judgment asking the Court to rule that Koppers is not liable to Weyerhaeuser under CERCLA or any of Weyerhaeuser's state law claims, and also asking the Court to rule that Weyerhaeuser is liable to Koppers on Koppers's CERCLA counter-claim. That motion was fully briefed on January 4, 1991.

II. STANDARDS FOR SUMMARY JUDGMENT

Summary judgment under Rule 56 of the Federal Rules of Civil Procedure serves the important purpose of "conserving judicial time and energy by avoiding unnecessary trial and by providing a speedy and efficient summary disposition" of litigation in which the plaintiff fails to make some minimal showing that the defendant may be liable on the claims alleged. Bland v. Norfolk & Southern R.R. Co., 406 F.2d 863, 866 (4th Cir.1969). The applicable standards for analyzing a motion for summary judgment under Rule 56 are well-established. The party seeking summary judgment bears the initial burden of showing the absence of any genuine issue of material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265. In determining whether the movant has sustained this burden, this Court must consider whether, when assessing the evidence in the light most favorable to the opposing party, a "fair-minded jury could return a verdict for that party...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986); Pulliam Investment Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). Nevertheless, the "mere existence of a scintilla of evidence in support of the opponent's position will be insufficient" to defeat a motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; see also Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984). The non-movant must identify for the Court some dispute of fact that is material to the legal issues presented in the case in order to successfully oppose a motion for summary judgment. "The plain language of Rule 56(b) mandates entry of summary judgment, after an adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp, 477 U.S. at 322, 106 S.Ct. at 2552. It is against these standards that the Court shall review the motions.

III. WEYERHAEUSER'S MOTION

A. Introduction.

Weyerhaeuser is seeking summary judgment as to Koppers's liability under Section 107 of CERCLA, 42 U.S.C. § 9607 which provides that:

"(a)(1) the owner and operator of a vessel or facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or 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,

shall be liable for —

(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;

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

This section allows a private party who has incurred response costs because of a release or threatened release of hazardous material to bring an action and recover those costs. See § 9607-(a)(4)(B). In order to do so, the plaintiff must show that

"(1) the waste disposal site is a facility within the meaning of 42 U.S.C. § 9601(9); (2) a release or threatened release of a hazardous substance from the facility has occurred, id. § 9607(a)(4); and (3) the release or threatened release has caused the plaintiff to incur response costs that are consistent with the national contingency plan, id. § 9607(a)(4) and 9607(a)(4)(B)."

Retirement Community Developers, Inc. v. Merine, 713 F.Supp. 153, 155 (D.Md. 1989). Also, the defendant must be one of those covered in the listing set out above. Id.

B. Facility.

Weyerhaeuser argues that the subject property is a "facility" within the meaning of the statute because hazardous substances have been "deposited, stored, disposed of, or placed, or otherwise come to be located...." 42 U.S.C. § 9601(9). The investigative tests performed at the request of Weyerhaeuser demonstrate that hazardous substances have indeed come to be located in the ground and groundwater there. Koppers does not dispute that this property is a "facility."

C. Proper Defendant.

Second, Weyerhaeuser points out that Koppers is a covered person as is required by the statute because Koppers operated the wood treatment facility at the time when the chemical hazards were deposited, stored, or otherwise located in the property. Koppers has not asserted that it is not a proper defendant.

D. Release.

Third, Weyerhaeuser asserts that a release has occurred as required. This is an assertion which Koppers disputes.

In support of its argument that a release of hazardous substances occurred at the site in question, Weyerhaeuser has produced the reports of environmental tests which were performed on the property. One study was performed by an organization of Weyerhaeuser's choosing; the other was done by the organization of Koppers's choice. The reports show that there are significant chemical deposits on the property. These various chemicals are "hazardous substances" as defined by CERCLA. See 42 U.S.C. § 9602, 40 C.F.R. § 302.4; 33 U.S.C. § 1317, 30 C.F.R. § 401.15.

Weyerhaeuser has also produced expert testimony that these chemicals did not migrate onto the property from some other parcel. See supra footnote 2. In addition, Weyerhaeuser has produced the affidavits of its Environmental Affairs Manager and its Real Estate Manager. The testimony contained in these affidavits goes to show that neither Weyerhaeuser nor any of its pre-Koppers lessees conducted pressure wood treatment operations at the site prior to 1944, the date of Koppers's lease.

Koppers has not disputed the accuracy of the investigative environmental studies which were performed. In its opposition to Weyerhaeuser's motion for summary judgment, Koppers was willing to assume the accuracy of the findings and argue its other points. In its own motion for summary judgment, Koppers did not even discuss the issue of whether a release had occurred.³ In other words,...