LCCS Grp. v. A.N. Webber Logistics, Inc.
LCCS Grp. v. A.N. Webber Logistics, Inc.
Opinion of the Court
Defendants Interplastic Corporation and Central Michigan Railway bring separate Motions for Summary Judgment. (Dtks. 305, 310.) Plaintiff Lake Calumet Cluster Site Group ("LCCS Group") cross-moves for summary judgment only as to liability and only against Interplastic. (Dkt. 309.) For the reasons stated herein, all three Motions are denied.
I. BACKGROUND
LCCS Group is a legal entity comprising signatories to an agreement with the United States Environment Protection Agency (the "EPA"). (Pl.'s Resp. to Interplastic's Statement of Facts ("Interplastic SOF") ¶ 1, Dkt. 313-1.) Said agreement obligates the LCCS Group to pay the remediation costs to clean up a Superfund site referred *850to as the Lake Calumet Cluster Site ("the Cluster Site"). (Id. ¶¶ 2-4.) Eager to reduce the apportionment of liability for that cleanup among its members, the LCCS Group seeks in this suit to add additional parties to its number, including Interplastic and Central Michigan. (See generally Compl., Dkt. 1.) In this vein, the LCCS Group seeks those parties' contribution under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"),
A. Interplastic Corporation.
Interplastic's role in this case arose from a single delivery to the Cluster Site: an August 6, 1979, load of fifty drums of "waste resin" shipped from Interplastic's facility in Minneapolis. (Interplastic SOF ¶¶ 25-28.) The exact components of that resin are unknown, but the only resins Interplastic produced at that time were unsaturated polyester resins ("UPRs"). (Id. ¶ 10.) All of the UPRs Interplastic produced during the relevant time period contained anhydride and styrene as raw materials. (Id. ¶ 11.) Some of those UPRs also included as raw materials one or more of the following: adipic acid, diethylene glycol, ethylene glycol, fumaric acid, methyl methacrylate, and phthalic anhydride. (Id. ¶ 12.) In their raw forms, each of those materials appears on the EPA's "List of Lists," a non-exclusive enumeration of substances deemed "hazardous" for the purposes of determining CERCLA liability. (Id. ¶ 13.)
All UPRs are thermoset polymers. (Id. ¶ 17.) Thermoset polymers are designed to undergo a chemical reaction known as curing which transforms the polymers (presumably originally in a liquid state) into solids. (Id. ¶ 18.) Interplastic maintains that once thermoset polymers solidify, they cannot break down into their constituent parts. (Id. ¶ 18.) Plaintiff at once seems to admit to this fact (see
Interplastic sold the UPRs it produced in liquid form - the form usable to the customer. (Id. ¶ 19.) To enhance the viability of its product, Interplastic added inhibitors to the UPRs it distributed to delay their solidification and extend their shelf life. (Id. ) But when Interplastic's manufacturing process went awry, resulting in unusable "waste resin," Interplastic added a "significantly lower" volume of inhibitors to the batch, recognizing it was unsuitable for sale. (Id. ¶ 20.) Interplastic treated its waste resin on-site in Minneapolis by placing it in a "hot box" and polymerizing it, causing the waste resin to solidify. (Id. ¶ 24.) On rare occasion, the waste resin would not fully cure even after "hot box" treatment. (Id. ¶ 16.) In such instances, Interplastic contracted to have that resin transported for off-site disposal. (Id. ) The fifty barrels of waste resin delivered to the Cluster Site in 1979 appear to have been the object of such an arrangement. (See Interplastic's Resp. to Pl.'s Facts ¶ 15, Dkt. 316; LCCS Interplastic Site Records, Ex. D to Pl.'s Mot. for Summ. J., Dkt. 309-8.) Though the parties dispute whether Interplastic manufactured the waste resin contained in those barrels, the uncontested documentation indicates that the barrels originated with Interplastic. (See Dkt. 309-8.)
*851B. Central Michigan Railway.
Central Michigan is the corporate successor to Lakeshore Terminal & Pipeline Company, which Plaintiff contends arranged for a third-party entity called Inland Waters to deliver 2,800 gallons of flammable jet fuel waste from Lakeshore to the Cluster Site on June 24, 1982. (Pl.'s Resp. to Cent. Mich.'s Statement of Facts ("Mich. SOF Resp.") ¶ 5, Dkt. 314-1; Cent. Mich.'s Reply to Pl.'s Statement of Additional Facts ("Mich. SOF Reply") ¶¶ 2-3, Dkt. 323-2.) The waste disposal manifest describing that shipment lists Lakeshore as the waste's "generator." (Manifest, Ex. F to Cent. Mich.'s Mem. in Supp. of Summ. J., Dkt. 306-1.) Central Michigan concedes that it stored that jet fuel waste in a tank on its premises yet maintains it neither owned the fuel nor arranged for its disposal. (Mich. SOF Resp. ¶¶ 6-8.) Rather, according to Central Michigan, the U.S. Department of Defense owned that fuel, Central Michigan merely stored it on DOD's behalf, and it was DOD that contracted with Inland Waters for the fuel waste's removal to the Cluster Site. (Id. ¶¶ 6-10.)
II. DISCUSSION
Summary judgment must be granted "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). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Zaya v. Sood ,
The dispute at bar concerns CERCLA, which Congress enacted to "promote the 'timely cleanup of hazardous waste sites' and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination." Burlington N. & Santa Fe. Ry. Co. v. United States ,
Though ultimately not central to the disposition of the motions at bar, the above-recited causation element generates some consternation among the parties. For the sake of completeness, the Court briefly notes its views on the subject. As far as causation is concerned, CERCLA requires only that a plaintiff show that a hazardous substance was released and that said release *852caused the plaintiff to incur response costs. See Envtl. Transp. Sys., Inc. v. ENSCO, Inc. ,
Turning to the parties' motions: Both Interplastic and Central Michigan move for summary judgment, contending that neither of them can be held liable under CERCLA as a matter of law. Plaintiff cross-moves for summary judgment as to liability against only Interplastic. The Court turns first to the dueling motions concerning Interplastic before addressing the motion by Central Michigan.
A. Interplastic and Plaintiff's Cross-Motions for Summary Judgment
Plaintiff contends that Interplastic arranged for the disposal of the fifty drums of waste resin at the Lake Calumet Cluster Site and so is a potentially responsible party ("PRP") under CERCLA. See
"Hazardous" has a broad meaning within CERCLA, comprising:
(A) any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act [33 U.S.C.A. § 1321 (b)(2)(A) ], (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C.A. § 6921 ] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C.A. § 6901 et seq. ] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 307(a) of the Federal Water Pollution Control Act [33 U.S.C.A. § 1317 (a) ], (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C.A. § 7412 ], and (F) any imminently hazardous *853chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 7 of the Toxic Substances Control Act [15 U.S.C.A. § 2606 ]. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).
Plaintiff's argument relies heavily on B.F. Goodrich v. Betkoski ,
Given that Betkoski did not consider the theory advanced here, Interplastic contends the Court should look instead to United States v. New Castle County ,
However, New Castle County diverges from the current case in one respect. The parties in that case agreed that PVC neither depolymerizes nor decomposes under normal landfill conditions, so it was undisputed that the previously-hazardous vinyl chloride was permanently bound within the PVC and could not be the hook for liability.
The Betkoski court did not find New Castle County persuasive, see
Against this backdrop, this Court concludes that when the disposed-of waste is not itself a hazardous substance and the waste contains hazardous substances which are irreversibly bound within the waste, a CERCLA plaintiff cannot make out its prima facie case. But if separating out those hazardous substances is at all possible, even only upon the intrusion of an intervening force, then the defendant may be susceptible to liability.
Interplastic contends its waste resin provides no basis for liability. It argues that because polymerized resin permanently binds together its composite elements, no intervening force of any strength or kind can release its hazardous components and so Plaintiff cannot establish the prima facie element of threatened release. This argument fails in two respects. First, it ignores the parties' dispute over whether UPRs remain permanently cured once polymerized. And second, the argument ignores that to win on summary judgment, Interplastic must prove not only the polymerization's irreversibility, but also that the particular waste resin Interplastic arranged for disposal was fully cured (and thus immutably non-hazardous) as opposed to partially cured (and thus potentially still *855hazardous, i.e. , by "containing" a hazardous substance).
The record is unclear on this last point. These are the competing facts: Interplastic says that all UPRs eventually cure, but Interplastic also contends that whenever a batch of its UPR failed to "fully cure," Interplastic contracted to have that waste "liquid resin" disposed of. (Interplastic SOF ¶¶ 16, 20.) Interplastic also contends that because waste resin contains significantly less inhibitor volume than consumer-worthy resin, waste resin "could cure as quickly as a matter of hours, and typically within several days." (Id. ¶ 20.) This is puzzling. If waste, liquid resin self-hardens within a matter of days, why would Interplastic go to the trouble of arranging for its off-site disposal?
This puzzle aside, two questions of disputed, material fact preclude summary judgment to either party: (1) whether fully-cured UPRs are unalterably polymerized, even upon the introduction of an intervening force, and (2) if so, whether Interplastic arranged for the disposal of fully-cured, as opposed to partially-cured, resins. See B.F. Goodrich Co. v. Murtha ,
On the current record, neither Plaintiff nor Interplastic is entitled to judgment as a matter of law. A reasonable jury could find in either's favor on the two key questions. Accordingly, both motions for summary judgment are denied.
B. Central Michigan's Motion for Summary Judgment.
As with the Interplastic-related motions, the central dispute in this final motion is whether Central Michigan qualifies as an "arranger" and is thus a responsible person under CERCLA. Ultimately, Central Michigan fails to prove as a matter of law that it does not so qualify, so the Court cannot grant summary judgment in its favor.
To show that Central Michigan is an "arranger," Plaintiff must show that Central Michigan: (1) owned or possessed (2) hazardous substances and (3) by contract, agreement, or otherwise, arranged for disposal or treatment, or arranged for transport for disposal or treatment, of those substances at the CERCLA-defined facility. Carolina Power & Light Co. v. Alcan Aluminum Corp. ,
Plaintiff clears the first hurdle with ease. Central Michigan maintains that DOD, and not it, owned the jet fuel. But this quibble over legal title avails Central Michigan of nothing. Central Michigan cannot reasonably contend it did not possess the fuel, which is all the statute requires.
The Court has little to say about the second element, i.e. , whether the fuel waste was hazardous. Neither party's statements of material facts stake a claim *856as to the hazardousness of the waste, but both parties refer to the fuel waste as a hazardous substance in their briefing. (See Pl.'s Resp. to Cent. Mich.'s Mot. for Summ. J. 1, Dkt. 314 ("Central Michigan ... does not dispute that the waste contained hazardous substances."); Cent. Mich.'s Reply in Supp. of Summ. J. 8, Dkt. 323 (referring to the disposed-of fuel waste as a "hazardous substance").) There appears to be no dispute between the parties on this score.
As for the final element, whether Plaintiff actually arranged for the waste's disposal: Central Michigan says it is free from liability because all of the decision-making and logistics related to the fuel's transportation and removal were handled exclusively by DOD. Central Michigan points to a few exhibits in support of that contention, but none is very persuasive. Central Michigan contends that a June 30, 1982, letter from Lakeshore's manager to DOD showcases Lakeshore taking responsibility for the fuel waste disposal. (See Ex. E, Dkt. 306-1.) This is one reasonable reading of the letter. Another is that as owner of the tanks, Lakeshore simply used this letter to report back to DOD concerning the work DOD-retained contractors completed on-site. (See
Clearly, someone arranged for Inland Water to dispose of the fuel waste at the Cluster Site. It might have been DOD; it might have been Central Michigan (as Lakeshore). But either is possible from the present record. Plaintiff suggests that the fuel-storage agreement between DOD and Lakeshore might elucidate those parties' responsibilities vis-à-vis disposal. But that agreement, if one exists, is not before the Court now. On this record, a reasonable jury could conclude that either Lakeshore or DOD arranged for the waste disposal, so summary judgment is not appropriate.
III. CONCLUSION
For the reasons stated herein, Interplastic's Motion for Summary Judgment (Dkt. 310), Central Michigan's Motion for Summary Judgment (Dkt. 305), and Plaintiff's Motion for Summary Judgment (Dkt. 309) are all denied.
IT IS SO ORDERED.
Reference
- Full Case Name
- LCCS GROUP v. A.N. WEBBER LOGISTICS, INC.
- Cited By
- 1 case
- Status
- Published