Opinion
Civil No. 3:94-CV-2477-H (SOUTHERN PACIFIC), Civil No. 3:96-CV-1927-H (TERESA COLLINS), Civil No. 3:96-CV-1929-H, Civil No. 3:96-CV-2985-H Civil No. 3:96-CV-2993-H, Civil No. 3:96-CV-3057-H, Civil No. 3:96-CV-3092-H, Civil No. 3:96-CV-3093-H, Civil No. 3:96-CV-3094-H, Civil No. 3:96-CV-3095-H, Civil No. 3:96-CV-3096-H, Civil No. 3:96-CV-3097-H, Civil No. 3:96-CV-3098-H, Civil No. 3:97-CV-0052-H, Civil No. 3:97-CV-0055-H, Civil No. 3:97-CV-1185-H, (S. E. BROWN), (VERNON ADAMS), (MARGARET MORRIS), (FELICIA ADAIR), (RONNIE BURNETT), (WILLIAM GOODSON), (MILDRED SHAW), (JAMES ADAMS), (PH.VELAZQUEZ), (J.D. ATKINS), (HENRY RELFORD), (R. P. BELCHER), (LOUISA ADAIR), (ESTELLA BROWN).
October 22, 2002
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Southern Pacific Transportation Company and St. Louis Southwestern Railway Company (collectively referred to herein as "the Railroads") Motion to Dismiss under FED.R.CIV.P. 12(b)(1) and/or Motion for Summary Judgment under FED. R.CIV.P. 56(b), filed August 21, 2002; (Bergin/McClanahan) Plaintiffs' Response thereto, filed September 5, 2002; and Defendants' Reply filed September 17, 2002. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Defendant's Motion to Dismiss should be DENIED, and Defendant's Motion for Summary Judgment should be GRANTED.
I. BACKGROUND
The Railroad Defendant's Motion to Dismiss and/or Motion for Summary Judgment is filed pursuant to the Court's October 15, 2001 Revised Case Management and Scheduling Order governing the litigation of environmental claims within the In re: Voluntary Purchasing Groups, Inc., ("VPG") Litigation. The (Bergin/McClanahan) Plaintiffs in this case assert claims for remediation of the Ridgeway site against Defendants under the Resource Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2825, as amended, 42 U.S.C. § 6972 (1982 ed. and Supp. V). In this motion the Railroads allege that the Plaintiffs' claims should be dismissed based on lack of subject matter jurisdiction because of Plaintiffs' failure to comply with the RCRA notice requirements that the Attorney General of the United States must be notified, and that the pleading must include the violations alleged. (Mot. at 6-7). In addition, the Railroads allege that the Plaintiffs lack standing to bring suit under RCRA, because they have not suffered an "injury in fact" as evidenced by this Court's February 26, 2002 Order dismissing the Bergins' personal injury and property claims, and by the Plaintiffs statements in recent depositions. (Mot. at 9).
II. MOTION TO DISMISS
Defendants claim that the Bergin Plaintiffs have no standing to make their demands for remediation of the Ridgeway Site, because they have not suffered an "injury in fact" as evidenced by this Court's February 26, 2002 Order dismissing the Bergins' personal injury and property claims. The Court's dismissal of Plaintiffs personal injury and property claims against the Railroads does not bar the Plaintiffs from bringing a RCRA action against the Railroads, because a RCRA claim is separate and distinct from either. "The citizen suit provision of [RCRA] permits individuals to commence an action in the district court to enforce waste disposal regulations promulgated under the Act." Hallstrom 493 U.S. 20 at 22.
For this reason, and for the reasons stated in the Court's Memorandum Opinion and Order of October 16, 2002 granting ASARCO's Motion for Summary Judgment against the Bergin Plaintiffs, the Court finds that the Plaintiffs have standing to bring this RCRA claim related to the contamination of the Ridgeway Site against the Railroads. The Defendants' motion to dismiss on this ground is therefore, DENIED.
III. SUMMARY JUDGMENT STANDARD
Defendant also brings a Motion for Summary Judgment. Plaintiffs do not specify whether they are bringing suit under 42 U.S.C. § 6972(a)(1)(A) or (a)(1)(B), but Defendant asserts that summary judgment is warranted under either. (Mot. at 12-27).
A RCRA citizen suit against the Administrator of the Environmental Protection Agency is also possible under (a)(2), but Plaintiffs are obviously not bringing suit under this section.
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED.R.CIV.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. Clv. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
IV. ANALYSIS-SUMMARY JUDGMENT
Under RCRA, 42 U.S.C. § 6972(a)(1)(A) any person may "commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to [RCRA]." § 6972(a)(1)(B) permits suits against "any person . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." Defendants argue that the Plaintiffs never specifically allege that the Railroads were in violation of any "permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to [RCRA]." (Mot. at 12).
To prevail on a "contributing to" claim under RCRA 42 U.S.C. § 6972(a)(1)(B), a plaintiff is required to demonstrate: "(1) that the defendant is a person, including, but not limited to, one who was or is a generator or transporter of solid or hazardous waste or one who was or is an owner or operator of a solid or hazardous waste treatment, storage, or disposal facility; (2) that the defendant has contributed to or is contributing to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and (3) that the solid or hazardous waste may present an imminent and substantial endangerment to health or the environment." Cox v. City of Dallas, Texas, 256 F.3d 281, 292 (5th Cir., 2001).
Defendants argue that summary judgment is warranted under § 6972(a)(1)(B) for several reasons. First, the Railroads argue that they were not generators of waste and were not named in any Texas Water Commission Order related to Ridgeway. Second, they argue that they were not transporters of waste: they did not send any waste from their property to Ridgeway, did not select the site, and had no input into deciding where the waste was disposed. Third, they contend that even if they had transferred the waste to the site, they would have been "statutorily protected from liability under § 6972(g) of RCRA. Fourth, they argue that they were not an owner or operator of the Ridgeway site. (Motion at 13-14). Fifth, they argue that they never "contributed to" any waste at the Ridgeway site. (Motion at 15). Finally, the Railroads argue that they are not liable under § 6972(a)(1)(B) because the Ridgeway site does not pose an "imminent and substantial endangerment to health or the environment." (Mot. at 18).
Plaintiffs contend that the Railroads are liable as generators and transporters of waste, because they transported raw arsenic to the Commerce plant and allowed it to leak into the environment there. (Resp. at 10) "The transportation of arsenic by rail to the Commerce plant, and the dispersal of it into the environment which ended up in the holding ponds at the Commerce plant and ultimately at the Ridgeway Site, places the Railroads in the position of both being a `generator' and a `transporter.'" (Resp. at 10). Plaintiffs argue that the Railroads are generators, because they created waste when the arsenic spilled onto the ground at Commerce. Further, the Plaintiffs argue that in conveying the raw arsenic from ASARCO to the Commerce plant, and allowing it to spill from its "leaking railcars and through inadequate and improper unloading operations" the Railroads were transporters of hazardous waste. (Resp. at 11).
Plaintiffs point to evidence that the Railroads carried from 1000 tons per year of arsenic in the early 1960s to 2000-2500 tons of arsenic in later years. (Resp. at 12, Pls' Ex. 5.) In addition, they point to evidence that the railcars leaked arsenic into the environment at Commerce, onto property owned by the Railroads at the Commerce Site and into the air and water at Commerce. (Resp. at 16-17, Pls. Exs. 6-22, 25).
Plaintiffs also argue that there are genuine issues of material fact as to whether the Ridgeway site presents an imminent and substantial endangerment to human health and the environment at the Ridgeway Site and adjoining properties. (Resp. at 20-22).
The summary judgment questions before the Court are thus: (1) whether the Railroads are statutorily protected from liability under § 6972(g) of RCRA; (2) whether the Railroads can be found not liable as a matter of law under § 6972(a)(1)(A); (3) whether the Railroads can be found not liable for remediation of the Ridgeway site on the basis that they are neither "generators" or "transporters" of hazardous waste as a matter of law under RCRA; (4) whether the Railroads can be found not liable as a matter of law under RCRA because they were not "contributors" to the disposal of arsenic at the Ridgeway Site; and, (5) whether, as a matter of law, the Ridgeway Site presents an "imminent and substantial endangerment to human health and the environment."
A. Are the Railroads protected by § 6972(g)?
§ 6972(g) exempts transporters from liability as contributors under subsection (a)(1)(B) for the time period after the waste has left the possession of the transporter where the carrier exercised "due care" in the handling of the waste:
A transporter shall not be deemed to have contributed or to be contributing to the handling, storage, treatment, or disposal, referred to in subsection (A)(1)(B) of this section taking place after such solid waste or hazardous waste has left the possession or control of such transporter, if the transportation of such waste was under a sole contractual arrangement arising from a published tariff and acceptance for carriage by common carrier by rail and such transporter has exercised due care in the past or present handling, storage, treatment, transportation and disposal of such waste. 42 U.S.C. § 6972 (g) (emphasis added).
In this case, although Plaintiffs do not specifically refute this point in their Response, Plaintiffs allege that part of the Railroads' liability under RCRA stems from improper handling of the arsenic as it was being transported to Commerce. (Resp. at 16-17, Pls. Exs. 6-22, 25). They have also provided competent summary judgment evidence of improper handling of the arsenic. Therefore, there is a genuine issue of fact on this question, and summary judgment for the Railroads on this basis is not proper and is DENIED.
B. § 6972(a)(1)(A)
For the § 6972(a)(1)(A) claim, Defendants argue that the Plaintiffs never specifically allege that the Railroads were in violation of any "permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to [RCRA]." (Mot. at 12). Plaintiffs do not specifically allege that the Railroads are in violation of permit, standard, etc. pursuant to RCRA in their Fifth Amended Complaint, except to allege that because the Railroads are liable as "contributing generators and transporters"of arsenic, and thus they are responsible for it "from cradle to grave" under RCRA. (Resp. at 8-9). The Texas Water Quality Board Orders 68-25 and 68-30 which are referred to in the Complaint are, in fact, directed to VPG and do not mention the Railroads. Therefore the Defendant's Motion for Summary Judgment as it relates to § 6972(a)(1)(A) is GRANTED.
C. § 6972(a)(1)(B)
1. Generators or Transporters of Hazardous Waste
Under Cox, the first element a plaintiff must prove in its prima facie case is "that the defendant is a person, including, but not limited to, one who was or is a generator or transporter of solid or hazardous waste or one who was or is an owner or operator of a solid or hazardous waste treatment, storage, or disposal facility." Cox at 256 F.3d at 292. The Railroads argue that they are not generators of hazardous waste under RCRA, because the Railroads did not "create" any hazardous waste. (Mot. at 13). They point to Zands v. Nelson, 779 F. Supp. 1254, 1263-1264 (S.D. Ca. 1991) to show that "to generate" waste means "to create" waste.
This argument fails, however, on a closer reading of Zands. In Zands, an action brought under RCRA to remediate property after petroleum leakage from underground tanks, the Court held that the landowners, the operators of a service station, and those who were responsible for installing the pumps for gasoline tanks could be found liable as generators under RCRA. This is so, because the gasoline which had leaked into and contaminated the ground is "no longer a useful product." Under the Code of Federal Regulations, the gasoline became a solid waste when it leaked into the environment. "40 C.F.R. § 261.2(b) states that materials are solid wastes if they are `abandoned' by being `disposed' of. And the statute defines the word `disposal,' a word that is synonymous with `discarded,' as the `leaking . . . of any solid waste or hazardous waste into or on any land or water . . .'" Zands, 779 F. Supp. at 1263-1264. (quoting 42 U.S.C. § 6903(3) (1983 Supp. 1991)).
In the instant case, following Zands, the Court finds that there are issues of fact as to whether the Railroads could be held liable as generators of hazardous waste. Therefore, summary judgment is not appropriate under the first element of Cox on this basis and is DENIED.
2. Contributor
The second element a plaintiff must prove in order to prevail on a RCRA claim under Cox is that the defendant has contributed to or is contributing to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste. Cox, 256 F.3d at 292. Defendants argue that they did not contribute to the disposal of arsenic at Ridgeway, because they did not own, operate, or control the Ridgeway Site, and they did not have the "legal right to tell the owners of that site how to manage their property." (Mot. at 16). They argue further that it was impossible for the Railroads to have caused, foreseen, or had any control over any of the actions which occurred after the Railroads delivered the arsenic to the Commerce plant including the transporting of the arsenic waste by VPG to the Ridgeway Site, or the storage of the waste at Ridgeway. (Mot. at 17).
In Cox the Fifth Circuit lays out the "basic framework" for interpreting the "contributing to" prong of § 6972(a)(B)(1). Cox, 256 F.3d at 293. First, the Court notes that the statute itself does not define "contribute." It then follows the Eighth and Fourth Circuits which have dealt with the issue by applying the "ordinary meaning" of the words, and it interprets "contribute" to mean "have a part or share in producing an effect." Id. at 296. See United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1383 (8th Cir. 1989); United States v. Waste Indus., Inc., 734 F.2d 159, 167 (4th Cir. 1984).
In Cox the Fifth Circuit declines to find that strict liability is the proper standard for liability under RCRA, but analyzes a tension in the legislative history of RCRA, finding aspects of the history which point both to Congressional intent for RCRA to be a strict liability statute and Congressional intent to create liability under a negligence framework. Id. at. nn. 26, 27. The Fifth Circuit upheld this Court's ruling that the City of Dallas was liable for the waste it generated in demolition projects on the basis of negligence (and not strict liability), because it "failed to exercise due care in selecting or instructing the entity actually conducting the disposal of the City's waste." Cox, 256 F.3d at 296.
Defendants point to Zands and Hudson Riverkeeper Fund v. Atlantic Richfield Co., 138 F. Supp.2d 482, 487 (S.D.N.Y. 2001) to support their argument that causation between the Defendant's alleged acts and the contamination must be proved by the Plaintiff. In Hudson the Court required the Plaintiff to establish "some level of causation" between the PCB contamination of the Hudson River and a corporate successor of an alleged polluter which had assumed all of the alleged polluter's liabilities. Hudson, 138 F. Supp.2d at 487.
In Zands the Court discusses the idea that "contribution" under RCRA is similar to the principle of "proximate cause": "[T]he Court is cognizant that there must be some limitations on the definition of contributor with respect to section 6972(a)(1)(B)." Zands, 779 F. Supp. at 1264.
Plaintiffs attempt to argue that liability can be imposed on past generators of waste who had nothing to do with disposal citing U.S. v. Valentine, 885 F. Supp. 1506 (D. Wyo. 1995). Valentine holds that liability can be found under 42 U.S.C.A. § 6972(a) for "any person who contributed to improper disposal." Id. at 1512. In that case, however, the causal link between the Defendant and the contamination was much greater than in the instant case. The Defendant in Valentine had actually transported the waste to the dump site, but argued that it was not liable, because it was not a generator and not acting under contract to another party. Id.
Plaintiffs also cite Tippins, Inc., v. USX Corp., 37 F.3d 87 (3rd Cir. 1994), but this is a CERCLA, not a RCRA case. Similarly, Plaintiffs cite U.S. v. Aceto Agric. Chem. Corps., 872 F.2d 1373 (8th Cir. 1989) but do not point to any holding in that case. Aceto held that, under a broad reading of the RCRA statute, control over the disposal of waste is not necessary for a generator to be found liable. However, the Court's holding was based on "sufficient facts" to connect the Defendant to the disposal. Id. at 1383. (The Defendants owned hazardous chemicals throughout a process of its being formulated into a pesticide by company with whom it contracted. This processing involved the creation of hazardous wastes. The Court inferred that the Defendant "had the authority to control the way in which the pesticides were formulated, as well as any waste disposal.") Id.
Valentine cites U.S. v. Price, 523 F. Supp. 1055, 1073 (D.C.N.J. 1981) for the proposition that a former generator, not linked to the disposal of waste, could be held liable under RCRA. Valentine, 885 F. Supp. at 1512. Again, the causal link between the Defendant and the contamination was much greater than the instant case: the Defendant was the former owner of landfill property but was not currently contributing to the disposal of waste on the property. Id.
As discussed above, Plaintiffs provide summary judgment evidence that the Railroads contributed to the creation of hazardous waste at the Commerce site. They provide no such evidence for the proposition that the Railroads contributed to the disposal of the arsenic at Ridgeway. Evidence of the spillage of arsenic at Commerce, of the inadequacy of Defendants' warnings regarding arsenic, and of Defendants' handling of the arsenic at Commerce does not further their case regarding Ridgeway.
The Defendants' argue that there is no causal link between their actions at Commerce and the disposal of arsenic by VPG at Ridgeway and hence no contribution by the Railroads to the contamination at Ridgeway. In addition, the Fifth Circuit's holding in Cox is based on a finding of negligence. In light of this, the Court holds that the Plaintiffs must establish some level of causation between the Defendant and the contamination to prevail in a "contributing to" cause of action under RCRA.
Absent competent summary judgment evidence by the Plaintiffs of a causal link between Railroads' actions at Commerce and the contamination of the Ridgeway Site, summary judgment for the Defendants on their liability under RCRA is warranted. Therefore the Defendant's Motion for Summary Judgment as it relates to § 6972(a)(1)(B) is GRANTED.
V. CONCLUSION
For the reasons stated above, Defendants' Rule 12(b)(1) Motion to Dismiss is DENIED. Defendants' Motions for Summary Judgment under RCRA §§ 6972(a)(1)(A) and (a)(1)(B) are GRANTED. The question of whether the Ridgeway Site presents an "imminent and substantial endangerment to human health and the environment" is not reached, as it is moot. The RCRA claims of the Bergin/McClanahan Plaintiffs against the Railroads are DISMISSED with prejudice.
THE CLERK IS DIRECTED TO FAX THIS ORDER IMMEDIATELY TO ALL COUNSEL.
SO ORDERED.