UNITED STATES OF AMERICA v. MIDDLETON et al

Filing 65

ORDER denying 49 Motion for Summary Judgment. Ordered by U.S. District Judge W LOUIS SANDS on 9/30/2014. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
UNITED STATES OF AMERICA
Plaintiff,
v.
RICHARD MIDDLETON, CIRCLE
ENVIRONMENTAL, INC., BSJR, LLC, and
WATERPOLLUTIONSOLUTIONS.COM,
INC.,
Defendants.

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CASE NO.: 1:11-CV-127(WLS)

ORDER
Presently pending before the Court is Richard Middleton, Circle Environmental, Inc.,
and Waterpollutionsolution.com, Inc.’s (hereinafter “Defendants”) Motion for Summary
Judgment. (Doc. 49.)

For the following reasons, Defendants’ Motion for Summary

Judgment is DENIED.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 1
On September 7, 2007, in response to alleged operational errors, Edwin Williams
(“Williams”) with the Georgia Department of Natural Resources (“GDNR”) notified the
The following facts are derived from the Complaint (Doc. 1); BSJR, Inc.’s Answer (Doc. 15); Circle
Environmental, Inc., Waterpollutionsolutions.com, Inc., and Richard Middleton’s Answer (Doc. 16);
Defendants’ Statement of Undisputed Facts (Doc. 49-2); Government’s Response to Defendants’ Statement
of Undisputed Facts (Doc. 54-1); Defendants’ Reply in Support of its Statement of Undisputed Facts (Doc.
58-1); and the Record in this case. Where relevant, the factual summary also contains undisputed and
disputed facts derived from the pleadings, the discovery and disclosure materials on file, and any affidavits, all
of which are construed in the light most favorable to the Government as the nonmoving party. See Fed. R.
Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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United States National Response Center of hazardous material wasted at two sites: 170 5th
Avenue, Terrell County, Georgia (hereinafter “Site 1”) and 2222 Albany Highway, Terrell
County, Georgia (hereinafter “Site 2”).

(Doc. 49-2, at ¶¶1-3.)

Williams’ notification,

identifying Circle Environmental, Inc. as the suspected responsible party, (Doc 49-4; Doc.
49-6), caused the United States Environmental Protection Agency (“EPA”) to send an onscene coordinator named Dr. James. W. Webster to both locations on September 10, 2007.
(Id.) On September 11, 2007, after Dr. Webster observed both Site 1 and Site 2, the EPA
initiated emergency removal actions at both sites. (Doc. 49-2, at ¶4.)
As on-scene coordinator for the removal actions at Site 1 and Site 2, Dr. Webster
received assistance from the EPA’s Superfund Technical Assessment and Response Team
(“START”), various EPA contractors, and EPA’s Emergency Rapid Response Services
(“EERS”). (Doc. 49-2, at ¶4.) On May 15, 2008, a START contractor for Site 1 and Site 2
provided Dr. Webster with a Response Report for the field activities conducted on both
sites from September 11 through December 19, 2007. (Doc. 49-9.) All on-site removal
activities continued until December 18, 2007. (Doc. 49-25, Doc. 49-26.) After receiving
START’s Response Report, Dr. Webster requested a review of the analytical data regarding
air samples in START’s Response Report by EPA’s Technical Services Section (‘TSS”) to
determine whether further action was required. (Doc. 49-2, at ¶45.) On June 19, 2008, TSS
concluded their review of the Response Report’s air samples and submitted a Memorandum
with several comments and suggestions.

(Doc. 49-24.)

Dr. Webster received TSS’s

Memorandum on June 23, 2008. (Doc. 49-2 at 11.) On September 18, 2008, after some
delay due to a considerable workload and job promotion, Dr. Webster was finally able to
finish his Final Pollution Report (“FPR”) reviewing all of the site data, including the TSS’s
Memorandum. (Doc. 49-2, at ¶50.) As of February 28, 2011, the EPA identified $578,
283.34 at Site 1 and $135,463.20 at Site 2 in outstanding costs as a result of their emergency
removal. (Doc. 1, at ¶37.)

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On September 16, 2011, to recover costs under Section 107(a) of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C.
§ 9607(a), the Government filed its complaint in the above-captioned matter against
Defendants John Middleton, owner and operator of both Circle Environmental, Inc. and
Waterpollutionsolutions.com, Inc., the entity Circle Environmental, Inc., and the entity
Waterpollutionsolutions.com, Inc. (Doc. 1). On January 31, 2014, Defendants filed the
present Motion for Summary Judgment, claiming the Government was barred by CERCLA’s
statute of limitations from bringing its complaint. (Doc. 49-1). On March 10, 2014, the
Government filed a response opposing Defendants’ Motion for Summary Judgment. (Doc
54). On March 24, 2014, Defendants filed their reply to the Governments opposition. (Doc.
58).
DISCUSSION
I.

Defendant’s Motion for Summary Judgment
a. Federal Rule of Civil Procedure 56
“Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Chow v. Chak Yam Chau, No. 12-15994, 2014 WL 92094, *3 (11th Cir. Jan.
10, 2014) (citing Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013)). “A genuine issue
of material fact does not exist unless there is sufficient evidence favoring the nonmoving
party for a reasonable jury to return a verdict in its favor.” Grimes v. Miami Dade Cnty., 552 F.
App’x 902, 904 (11th Cir. 2014) (citing Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.
2000)). “An issue of fact is ‘material’ if it is a legal element of the claim under the applicable
substantive law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“It is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the

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nonmoving party.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The movant bears the initial burden of showing, by reference to the record, that there
is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Barreto v. Davie Marketplace, LLC, 331 F. App’x 672, 673 (11th Cir. 2009). The movant can
meet this burden by presenting evidence showing there is no dispute of material fact, or by
demonstrating to the district court that the nonmoving party has failed to present evidence
in support of some element of its case on which it bears the ultimate burden of proof. See
Celotex, 477 U.S. at 322-24. Once the movant has met its burden, the nonmoving party is
required “to go beyond the pleadings” and identify “specific facts showing that there is a
genuine issue for trial.” Id. at 324. To avoid summary judgment, the nonmoving party
“must do more than summarily deny the allegations or ‘show that there is some metaphysical
doubt as to the material facts.’ ” Matsuhita, 475 U.S. at 586 (citations omitted). Instead, the
nonmovant must point to record evidence that would be admissible at trial. See Jones v. UPS
Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d
1316, 1322 (11th Cir. 1999)) (noting that hearsay may be considered on a motion for
summary judgment only if it “could be reduced to admissible evidence at trial or reduced to
admissible form”). Such evidence may include affidavits or declarations that are based on
personal knowledge of the affiant or declarant. See Fed. R. Civ. P. 56(c)(4).
On a motion for summary judgment, the Court must view all evidence and factual
inferences drawn therefrom in the light most favorable to the nonmoving party and
determine whether that evidence could reasonably sustain a jury verdict. See Celotex, 477 U.S.
at 322-23; Allen, 121 F.3d at 646. However, the Court must grant summary judgment if
there is no genuine issue of material fact and the movant is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c).
B. Local Rule 56
Local Rule 56 requires the following:

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The respondent to a motion for summary judgment shall attach to the
response a separate and concise statement of material facts, numbered
separately, to which the respondent contends there exists a genuine issue
to be tried. Response shall be made to each of the movant's numbered
material facts.

All material facts contained in the moving party's

statement which are not specifically controverted by the respondent in
respondent's statement shall be deemed to have been admitted, unless
otherwise inappropriate.
M.D. Ga. L.R. 56. Here, Defendants properly filed a summary judgment motion with a
statement of undisputed facts, as required by the Federal Rules of Civil Procedure and the
Local Rules of this Court. (See Doc 49; Doc. 49-1; Doc 49-2.) Likewise, the Government
filed the proper response to Defendants’ statement of material facts. (See Doc. 54.) Having
established the applicable standards, the Court will proceed with reviewing the Motion’s
merits.
II.

ANALYSIS
Defendants’ Motion for Summary Judgment rests entirely on the contention Section

17(a) of CERCLA bars the Government’s complaint seeking clean-up costs. 42 U.S.C.
§9613(g)(2)(A). CERCLA has two different statutes of limitations, one for remedial actions
and another for removal actions. Removal actions are short-term, temporary responses to a
release or threatened release of hazardous waste. Union Carbide Corp. v. Thiokol Corp., 890
F.Supp. 1035, 1040 (S.D. Ga. 1994). Remedial actions are “long-term, more thoroughly
researched and planned permanent” remedies to the release or threatened release of
hazardous substances. Id. EPA’s efforts at both Site 1 and Site 2, attempting to quickly
resolve release and threatened release of hazardous waste, are removal actions. For removal
actions, CERCLA establishes a three-year statute of limitation which begins to accrue at the
completion of a removal action. 42 U.S.C. §9613(g)(2)(A).

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The question before this Court in deciding Defendants’ Motion for Summary
Judgment is what constitutes completion of a removal action under CERCLA. When
interpreting a statute, the starting point is always the statutory language itself. Med. Transp.
Mgmt. Corp. v. Comm’r of Internal Revenue Serv., 506 F.3d 1364, 1367 (11th Cir. 2007). In
evaluating the statutory language, courts can look to the statutory language itself, the specific
context in which the language is used, and broader context of the language as a whole.
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1989). Where the statutory language is plain and
unambiguous the Court’s inquiry must cease. Id. at 341.
Section 9613(g)(2)(A) makes clear “an initial action for recovery of cost must be
commenced—(A) for a removal action, within 3 years after completion of the removal action….” 42
U.S.C. §9613(g)(2)(A) (emphasis added). To identify when a removal action is complete,
evaluating the statute as a whole, courts look to the definition of “remove” and “removal” as
defined by CERCLA:
The terms “remove” or “removal” means the cleanup or removal of
released hazardous substances from the environment, such actions as may be
necessary taken in the event of the threat of release of hazardous substances
into the environment, such actions as may be necessary to monitor, assess, and evaluate
the release or threat of release of hazardous substances, the disposal of
removed material, or the taking of such other actions as may be necessary to
prevent, minimize, or mitigate damage to the public health or welfare or to the
environment, which may otherwise result from a release or threat of release.
42 U.S.C. §9601(23) (emphasis added).
Defendants argue EPA completed its removal action, at the very latest, on June 19,
2008, when TSS concluded review of START’s Response Report finding no further
remediation necessary. (Doc 49-1, 14-15.) As support for their argument, Defendants rely
in part on three cases, Chromatex, Williams, and Allied Battery, all of which identify the
equivalent of a TSS report completing removal. United States v. Chromatex, Inc., 832 F. Supp.

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900 (M.D. Pa. 1993); United States v. Williams, No. 98-2704, 1999 WL 33841417 (W.D. Tenn.
Feb. 9, 1999); United States v. Allied Battery Co., No. CV 98-N-0446-S, CV 98-N-2561-S, 2000
WL 34335806 (N.D. Ala. Jan 14, 2000). Contrary to Defendants’ assertion, Chromatex,
Williams, and Allied Battery, all weaken rather than strengthen their argument. Each case
makes clear that the EPA, under CERCLA’s statute of limitations, does not have to
“expedite it’s activities for the benefit of potential defendants”, and that the statute of
limitations under CERCLA is intended to be liberally construed in the EPA’s favor.
Chromatex, at 902. Consistent with this Court’s view, all three cases also establish that instead
of identifying a specific document as marking the end of removal, courts must decipher
whether EPA’s activities are relevant to monitoring, assessing, or evaluating removal
activities; if relevant, removal is only completed after that activity ends.
For instance, the defendants in Chromatex claimed inspection of water meters,
photographing the site, and completion of a final Technical Assistance Team report were
not related to completing removal. Id. Defendants in that case also argued there was no
reason for the EPA to wait such a long period to perform documentation and reporting
requirements. Id. Disagreeing, the Court in Chromatex viewed EPA’s documentation and
reporting a necessary and acceptable part of the removal process even if such activities were
delayed and unrelated to on-site removal actions. Id. at 902-03.

Sharing the reasoning in

Chromatex, the Court in Williams found delayed final reports unrelated to on-site activities
part of removal as well. Williams, at *3. Reviewing both case law and CERCLA, the Williams
court determined there is no need for assessments to be based strictly on on-site removal
actions and that the “EPA is permitted to act slowly.” Id. Building on the Chromatex and
Williams rationales, the Court in Allied Battery determined an on-scene coordinator’s final
report issued to “inform and educate” other EPA on-scene coordinators about removal
technologies as part of the removal process should not to be ignored for statute of limitation
purposes even though such activities were not statutorily mandated. Allied Battery, at *8.

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Section 9613(g)(2)(A)’s clear definition of removal, including “assessment and
monitoring” as part of the completion process, and the very cases Defendants’ rely on,
support concluding Dr. Webster’s FPR should not be ignored when considering CERCLA’s
statute of limitations. Dr. Webster’s FPR for both Site 1 and Site 2 includes a summary of
activities taking place at both removal sites, evaluates all of the findings throughout the
removal process including the air quality report conducted by TSS, and reviews EPA’s
financial expenditures at each site. Even under a narrower view of Section 9613(g)(2)(A),
Dr. Webster’s FPR submission on September 18, 2008 would be the actual date removal was
completed, commencing CERCLA’s statute of limitation less than three years before
Plaintiff’s complaint was filed.
Defendants last argue that in addition to Section 9613(g)(2)(A) barring the
Government’s action since removal was completed outside of three years, CERCLA’s
Section 104(c)(1), 42 U.S.C. § 9604(c)(1), restricts any consideration of removal actions
taking place a year after activities at Sites 1 and 2 were initiated by the EPA. Section 104(c)1
of CERCLA specifies that funding for EPA’s removal actions “other than those authorized
by subsection (b) of this section, shall not continue after… 12 months has elapsed from the
date of the initial response.” 42 U.S.C. § 9604(c)(1). Reiterating Section 104(c)1 directions,
EPA’s Federal Regulations note that removal actions, absent certain decisions from EPA,
“other than those authorized under section 104(b) of CERCLA, shall be terminated after…
12 months.” 40 C.F.R. § 300.415(b)(5). Activities under subsection (b) of this section,
exempt from the 12-month limitation period, permit the President through the EPA to
gather certain information:
“[The President] may undertake such investigations, monitoring, surveys,
testing, and other information gathering as he may deem necessary or
appropriate to identify the existence and extent of the release or threat
thereof, the source and nature of the hazardous substances, pollutants or

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contaminants involved, and the extent of danger to the public health or
welfare or to the environment.”
42 U.S.C. § 9404(b)1.
As documented by Dr. Webster, and noted by the Government, all on-site activities
falling under the statutory purview of the 12-month limitation period took place between
early September 2007 when on-site removal was initiated, and December 18, 2007 when onsite activities were completed, less than a three month period. (Doc. 49-25; Doc. 49-26.)
The remaining activities conducted by the EPA are precisely those covered under subsection
(b), thus exempted from the 12 month limitation period altogether. As a consequence, while
on-site removal activities continued until September 18, 2008, because those activities dealt
with monitoring, testing, and further analysis of information, the Governments activities are
in accord with Section 104(c)1’s directives as well.

Accordingly, the Court rejects

Defendants’ argument. Dr. Webster’s FPR filed on December 18, 2008 is when removal was
completed and, as a result, the Government’s complaint is within the three-year limitation
period set by CERCLA.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment (Doc. 49) is
DENIED.
SO ORDERED, this 30th day of September, 2014.
/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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