Opinion
CIVIL NO. 3:94-CV-2477-H
April 7, 2004
ORDER
Before the Court is Defendant Meridian Housing Co.'s ("Meridian") Motion for Summary Judgment Against the Railroads on Their Declaratory Judgment Claim, filed July 8, 2003; Southern Pacific Transportation Company's and St. Louis Southwestern Railway Company's ("the Railroads") Response, filed July 28, 2003; and Meridian's Reply, filed August 11, 2003.
Upon review of the pleadings, Parties' briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Meridian's Motion for Summary Judgment on the Railroads' Declaratory Judgment Claim should be GRANTED.
I. BACKGROUND
The Railroads' Amended Third Party Complaint against Meridian was filed July 25, 2003, seeking declaratory judgment on their Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") claims for cost recovery under § 107(a)(4)(B) and contribution under § 113(f). See 42 U.S.C. § 9607 and 9613. These claims are for expenses the Railroads allegedly incurred in the remediation of property owned by the Railroads and leased to Meridian on the Hi-Yield Site. (Resp. at 1). The cost recovery claim was dismissed by the Court in its Order of November 22, 2002. The claim for contribution under § 113(f) remains.
II. SUMMARY JUDGMENT STANDARD
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. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hasp. 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).
III. ANALYSIS
A. Prima Facie Case
To establish a prima facie case for a contribution action under CERCLA § 113 the Railroads must prove that:
(1) the Defendant is a "covered party" under section § 9607(a), see 42 U.S.C. § 9607(a);
(2) the contaminated site is a "facility" under § 9601(9), see 42 U.S.C. § 9607(a);
(3) a "release" or "threatened release" of a "hazardous substance" occurred at the site, see 42 U.S.C. § 9607(a)(4); and
(4) the "release" or "threatened release" caused the Railroads to incur response costs. See 42 U.S.C. § 9607(a)(4). Uniroyal Chem. Co, Inc., v. Deltech Corp., 160 F.3d 238, 242 (5th Cir. 1999).
B. The August 7, 1997 Order
The Railroads argue the Court has already found facts to support elements of their CERCLA claim against Meridian in its Memorandum Opinion and Order of August 7, 1997 ("1997 Order"). They contend that this Order, which found the Railroads liable to VPG under CERCLA, also establishes the first three elements of their prima facie case against Meridian: (1) that Meridian is an owner/covered person under § 9607(a); (2) that the Hi-Yield Site is a "facility" under § 9601(9); and (3) that a release of arsenic occurred at the facility under § 9607(a)(4). (Resp. at 4).
The Court agrees in part. In the 1997 Order the Court made findings that support elements (2) and (3) of the Railroads' prima facie case. Specifically, the Court found the entire Commerce Site to be a single "facility" under CERCLA thus satisfying element (2) of the prima facie case. (August 7, 1997 Order, at 10-11). In addition, the Court found facts to satisfy element (3) that a release of arsenic, a hazardous substance, occurred at the facility:
It is further undisputed, and the summary judgment evidence establishes, that arsenic has come to be located throughout the Commerce Site, including on the SSW property, on the chemical plant property, in Sayle Creek, and at the residential properties" (emphasis added). (August 7, 1997 Order, at 11-12).
The Order did not, however, find facts to satisfy elements (1) and (4) of the prima facie case: it did not find that Meridian was a "covered party" under section 9607(a), not did it find that the Railroads had incurred response costs associated with the Hi-Yield Site.
C. The 1997 Order Did Not Find Meridian Was a Covered Party.
Under CERCLA § 107(a) four classes of "covered persons" are liable for response costs:
(1) the [present] owner and operator of . . . a 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 . . ., at any facility, . . . and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities . . . or sites selected by such person, . . . Uniroyal, 160 F.3d at 243.
The Railroads allege that the 1997 Order found Meridian to be a covered person under § 9607(a)(2), because it found that Meridian was an owner/operator of the Hi-Yield Site at the time arsenic was released onto the Site. (Resp. at 4). Meridian argues that the Order did not explicitly find that Meridian was an owner/operator at the time arsenic was released onto the Site. (Reply at Exhibit B). The Court agrees. Although the 1997 Order does find that Meridian and its predecessor-in-interest were owners of the Hi-Yield Site, it does not specifically find that Meridian owned or operated the chemical plant at the time of the release or disposal.
The 1997 Order found the following: that the "Commerce Site" was originally owned and operated as a chemical plant by Lamar Cotton Oil Company; that Lamar transferred a portion of the property to Hi-Yield Chemical Company in 1951; that Universal was the predecessor-in-interest of Defendant Meridian Housing; and, that in 1968 Universal conveyed at least a portion of the plant property to VPG, which continued to operate the plant through 1971. (August 7, 1997 Order at 2-3).
IV. CONCLUSION
In the 1997 Order the Court found two elements of the Railroads' "owner/operator" § 113 CERCLA case against Meridian:
1) the Hi-Yield Site is a "facility" under § 9601(9), and
2) a "release" or "threatened release" of arsenic, a "hazardous substance," occurred at the site under § 9607(a)(4).
The Court did not find facts such that the Railroads have met elements (1) or (4) of their prima facie CERCLA case for contribution: the 1997 Order did not find that Meridian was a covered person, nor did it find that the Railroads incurred response costs in connection with the Hi-Yield Site.
Meridian's Motion for Summary Judgment on the Railroads' claim for Declaratory Judgment is GRANTED. The Railroads' § 113 CERCLA claim against Meridian remains. The Railroads' Motion for Summary Judgment on this claim will be considered at a later date.
SO ORDERED.