UNITED STATES OF AMERICA v. MIDDLETON et al

Filing 86

ORDER granting 78 Motion for Summary Judgment and ordering BSJR and the Government to submit to the Court an amended proposed scheduling order as it relates to addressing the issue of damages by Monday, September 14, 2015. Ordered by US DISTRICT JUDGE W LOUIS SANDS on 09/08/2015. (mdm)

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
Before the Court is the Government’s Motion for Summary Judgment against
Defendant BSJR, LLC. (Doc. 78.) For the following reasons, the Government’s Motion for
Summary Judgment is GRANTED.
PROCEDURAL BACKGROUND
On September 16, 2011, the Government initiated the above-captioned case by filing
a complaint against Defendants Circle Environmental, Inc., Waterpollutionsolutions.com,
BSJR, LLC, and John Middleton, owner and operator of both Circle Environment, Inc. and
Waterpollutionsolutions.com. (Doc. 1.) On January 31, 2014, Defendants Circle
Environmental Inc., Waterpollutionsolutions.com, Inc., and Richard Middleton filed a
Motion for Summary Judgment against the Government. (Doc. 49.) On September 30, 2014,
this Court denied Defendants’ Motion for Summary Judgment. (Doc. 65.) On December 8,
2014, the Government filed the instant Motion for Summary Judgment with the Court
against BSJR, LLC. (Doc. 78.) Defendant BSJR, LLC did not file a response. On March 23,
2015, the Court received notice from the Government that a tentative consent decree was
entered into with Defendants Circle Environmental Inc., Waterpollutionsolutions.com, Inc.,
and Richard Middleton that would resolve all of the Government’s claims against those
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Defendants. (Doc. 81.) On May 19, 2015, after allowing the requisite public comment period
as a matter of law, the Court entered an Order adopting the parties’ proposed Consent
Decree that resolved the Government’s claims against Defendants Circle Environmental
Inc., Waterpollutionsolutions.com, Inc., and Richard Middleton. (Doc. 85.) The
Government’s claims against BSJR are not addressed by the Consent Decree. After a review
of the record, the Court hereby finds that the instant motion is ripe for review.
SUMMARY JUDGMENT STANDARD
I.

Federal Rule of Civil Procedure 56

Federal Rule of Civil Procedure 56 allows a party to move for summary judgment
when a party contends no genuine issue of material fact remains and the party is entitled to
judgment as a matter of law. “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, 555 Fed. App’x 842, 847
(11th Cir. 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 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 genuine dispute of material
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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.’ ” Matsushita, 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 in its favor. 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:
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.
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M.D. Ga. L.R. 56. The Government has 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. (Docs. 41, 41-4.) Defendant BSJR did not respond to the
Government’s summary judgment motion or undisputed facts as required. The
Government’s Statement of Material Facts are admitted as a result of Defendant BSJR’s
failure to dispute those facts in accordance with Local Rule 56.

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Having established the

applicable standards, the Court will now proceed with reviewing the merits of the
Government’s Motion.
FACTUAL BACKGROUND 2
The Government alleges that G. Scott Harpole, owner and operator of an industrial
rag and absorbent dry cleaning operation in Dawson, Georgia from November 1994 until
May 2006, initially stored the hazardous substances at issue in the above-captioned case.
(Doc. 78-2 at ¶¶ 1-4.) From 1997 to May 2006, Harpole’s company transitioned from a
water-washing to dry cleaning operation handling absorbents, including drums and other
containers used by Circle Environmental of Kentucky and South Carolina. (Id. at ¶ 7.) As
Harpole’s relationship with Circle Environmental continued he agreed in 2005 to re-lease his
storage site at 170 5th Avenue, Terrell Country, Georgia (hereinafter “Site 1”) to Circle
Environmental to handle absorbents and other materials. (Id. at ¶ 9.) In May 2006, Harpole
ceased operating his dry cleaning business which required the removal of drums and other
materials from Site 1. (Id. at ¶ 10.) On September 5, 2007, Site 1 was brought to the
attention of local authorities after receiving a complaint of strong chemical odors in the
The Court is nevertheless required to make an independent review of the record before deciding the
Government’s Motion for Summary Judgment. See United States v. Delbridge, No. 1:06-cv-110, 2008 WL
1869867, at *3 (M.D. Ga. Feb. 22, 2008) (WLS) (concluding that Eleventh Circuit precedent does not allow a
district court to grant a summary judgment based on default). However, it must be noted that “[t]here is no
burden upon the district court to distill every potential argument that could be made based upon the materials
before it on summary judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).
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The following facts are derived from the Complaint (Doc. 1), the Government’s Statement of Undisputed
Facts (Doc. 78-2), and the Record in this case. Where relevant, the factual summary also contains undisputed
and disputed facts derived from pleadings, the discovery and disclosure materials on file, and any affidavits,
all of which are construed in the light most favorable to Defendant BSJR, LLC. as the nonmoving party. See
Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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vicinity of Site 1. (Id. at ¶ 11.) Responding to that complaint, Fire Department Captain
James Russell “Rusty” Hunter stated he saw a number of drums and three workers loading
rags into a roll-off dumpster. (Id. at ¶ 13.) Around that same time, Harpole approached John
Harris, owner and operator of BSJR, LLC. (“BSJR”), to ask if drums and other absorbents
could be stored on BSJR’s property located at 2222 Albany Highway, Terrell County,
Georgia (hereinafter “Site 2”). BSJR entered an agreement with Harpole to store drums and
other absorbents at Site 2. (Id. at ¶ 21.) Harris and Harpole discussed and eventually agreed
on where the drums and other materials would be placed on BSJR’s property. (Id. at ¶¶ 2122.) Harris resided at Site 2 and witnessed drums and other absorbents being moved to and
placed on the site. (Id. at ¶ 22.) Site 2 was not fenced in and could be accessed by anyone
interested in entering the property. (Id. at ¶ 23.)
Georgia Environmental Protection Division (“GAEPD”) first investigated Site 1 on
September 7, 2007 after receiving notice from local law enforcement and then alerted the
Environmental Protection Agency (“EPA”). (Id. at ¶ 32.) On September 10, 2007, Dr.
Edwin Webster, an On-Scene Coordinator for the EPA, evaluated both Sites 1 and 2 for
hazardous waste. (Id. at ¶¶ 33, 34.) Given the serious condition of both Sites 1 and 2, the
EPA initiated Emergency Removal Actions. (Id.) At Site 2 the removal included on-site
activities and off-site activities to determine the extent of the removal actions needed by the
EPA. (Id. at ¶ 40.) 3 A laboratory report conducted by the EPA discovered acetone, benzene,
ethylbenzene, xylenes, antimony, chromium, cooper, lead, mercury, nickel and zinc from the
drum samples collected at Site 2, all considered hazardous substances under the
Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).
(Id. at ¶ 48.) Soil samples at Site 2 also uncovered several hazardous substances under
CERCLA as well. (Id. at ¶ 50.) During the EPA’s air monitoring at Site 2, the volatile organic
compounds (“VOCs”) detected were so high that respiratory protection was necessary while
performing the assessment. (Doc. 78-2 at ¶ 41(h).) As of April 21, 2014, the EPA incurred
$212,810.88 to properly address the release or threatened release of the hazardous
substances found at Site 2. (Id. at ¶ 65.) The Government’s present motion moves the Court
The Government has specified several removal activities at Site 2 in detail as part of their filings with the
Court. (See Doc. 78-2 at ¶¶ 41-42.)

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to enter judgment finding that no genuine dispute of material fact remains as to BSJR’s
liability for the hazardous substances allegedly released.
ANALYSIS
This case is an example of the often-referenced allegory that one should be careful
when helping others address their dirty laundry. The Government asserts BSJR is jointly and
severally liable for EPA’s cleanup of hazardous substances at Site 2 under CERCLA. As
noted in the Government’s briefing, the Government is not moving the Court to find BSJR
liable for hazardous substances or the cleanup of Site 1. (Doc. 78-1 at 2, fn 1.)
In 1980 Congress enacted CERCLA and granted the President of the United States
broad powers to command federal agencies such as the EPA to clean up sites containing
hazardous substances that could potentially pose serious environment harm and health risks.
United States v. Best Foods, 524 U.S. 51, 55 (1998). When a federal agency participates in the
cleanup of a site deemed hazardous or potentially hazardous, those efforts can be financed
through a Hazardous Substance Superfund established by CERCLA. 42 U.S.C. §§ 9601(11),
9604; 26 U.S.C. § 9507. CERCLA authorizes the government to recover response costs
related to the cleanup of a site containing hazardous substances to ensure the party or parties
responsible for that cleanup bear the costs of the government’s response. United States v. Olin
Corp., 107 F.3d 1506, 1513 (11th Cir. 1997). A party responsible for hazardous waste is
jointly and severally liable under CERCLA absent evidence proving the potential or actual
environmental harm that required a response is divisible. Redwing Carriers, Inc. v. Saraland
Apartments, 94 F.3d 1489, 1513 (11th Cir. 1996). Those recognized under CERCLA as a
property owner are held strictly liable regardless of whether or not causation exists. CanadyneGeorgia Corp. v. NationsBank, N.A. (South), 183 F.3d 1269, 1275 (11th Cir. 1999) (“CERCLA
imposes no duty to act. CERCLA does not allocate liability based on fault or negligence; it is
a strict liability statute. CERCLA imposes liability on individuals not based on their causing
the release of hazardous substances, but based solely on their prior or current relationship to
the polluted property.”)
Prior to a district court finding a defendant liable for cleanup costs related to a site
deemed hazardous, the government must demonstrate that the site is: (1) defined as a
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“facility” under CERCLA; (2) that a release or threatened release of a hazardous substance
has occurred, (3) that the release or threatened release caused the government to incur
response costs, and (4) that the [d]efendant is a “covered person” under CERCLA. Redwing
Carriers, Inc., 94 F.3d at 1466.
The Government provides adequate evidence to find BSJR liable for response costs
as it relates to Site 2. A facility under CERCLA is in part defined as “any site or area where a
hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come
to be located.” 42 U.S.C. § 9601(9). Harris, on behalf of BSJR, not just allowed for drums
containing hazardous substances to be placed at Site 2, he directed Harpole on where to put
them on the property. (Doc. 78-12 at 30, ¶¶ 16-17.) Just as there is no dispute Site 2 is a
facility, it is also undisputed that Site 2 released hazardous substances. A “release” under
CERCLA is “any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing” of a recognized hazardous substance
into the environment. 42 U.S.C. §§ 9601(14), 9601(22). The EPA detected several hazardous
substances within the soil and drums stored on Site 2. Additionally, the VOCs monitored on
the site were hazardous enough to necessitate respiratory protection. There is nothing to
suggest that hazardous substances were not located at Site 2. Harris during his deposition
appears to acknowledge hazardous substances were on his property. (Doc. 78-12 at 48, ¶¶
10-11)(“It appears that I let someone bring hazardous materials on my property.”).
Given clear evidence indicating hazardous substances were released, it is no surprise
the EPA would incur costs related to responding to those detected hazardous substances.
For the Government to recover costs from a Defendant, the Government only needs to
prove it incurred those costs responding to the release of a hazardous substance. United States
v. Alcan Aluminum Corp., 964 F.2d 252, 264-265 (3rd Cir. 1992). The Government is not
required to prove that a defendant’s affirmative actions contributed to the incurred response
costs. Id. It is of no import that BSJR was unaware of the fact it was allowing hazardous
substances to be housed on their property. The fact that hazardous substances were, as a
matter of fact located on Site 2 owned by BSJR, is sufficient to find BSJR liable for the
EPA’s response.
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In addition to proving Site 2 was a facility where hazardous substances were found
causing the Government to incur costs, there is also sufficient proof to find BSJR within the
category of persons who can be liable under CERCLA. CERCLA defines a “person” as “an
individual, firm, corporation, association, partnership, consortium, joint venture, [or]
commercial entity” amongst other definitions. 42 U.S.C. § 9601(21). BSJR, owned and
operated by Harris, is a limited liability company formed in the state of Georgia clearly
within the definition of “person” under CERCLA. As a result, the Government has
established a prima facie case to prove BSJR jointly and severally liable for hazardous
substances at Site 2.
To the extent BSJR intends to rely on their previously noted defenses, the Court
finds that all three defenses are meritless. (Doc. 15.) As the Government notes in response
to BSJR’s first possible defense, the Court has already determined that the Government’s
Complaint was filed within the applicable statute of limitations. (See Doc. 65.)
BSJR’s second defense that BSJR was not the actual cause of the contamination
found on the property, that there were no released substances from Site 2, and that EPA’s
response could have been less costly has no legal merit either. The Court again reminds
BSJR that CERCLA imposes liability upon parties based entirely upon their relationship,
prior or current, to the contaminated property. There is no causation requirement. Alcan
Aluminum Corp., 964 F.2d at 266. BSJR agreed to house hazardous drums and other materials
at Site 2, which emitted hazardous substances. That evidence in itself creates a sufficient
relationship with the contaminated property. EPA’s expenditures in responding to Site 2 is
not of legal import either. CERCLA does not require the Court to make a reasonable cost
assessment. Instead, the plain language of the statute states that a person releasing hazardous
substances is responsible for “all costs of removal or remedial actions.” 42 U.S.C. §
9607(a)(4)(A); see also United States v. Hardage, 982 F.2d 1436, 1443 (10th Cir. 1992) (“
However, CERCLA § 107(a)(4)(A) does not limit the government's recovery to all reasonable
costs; rather, it permits the government to recover all costs of removal or remedial action
incurred ... not inconsistent with the [NCP].”)(internal quotations omitted).

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BSJR’s last affirmative defense that they are an “innocent third party Defendant” also
fails. To the contrary, Harris entered into an affirmative agreement allowing for Harpole to
store drums and other materials that were found to be hazardous on his property and
directed individuals on where some of the materials should be placed. BSJR’s suggestion that
they “had no involvement with the other defendants either monetarily, business related, or in
any other manner” at this juncture, given Harris’ deposition and the record before the Court
is not supported. Furthermore, CERCLA imposes strict liability on former and present
owners alike whether they knew or should have known about the disposal of hazardous
waste. Briggs & Stratton Corp. v. Concrete Sales & Servs., 20 F.Supp.2d 1356, 1366 (M.D. Ga.
1998). For BSJR to argue that it was an innocent third party it must prove that: (1) a third
party was the sole cause of the release, (2) that the release of hazardous substances did not
occur in connection with a contractual relationship, and (3) that the defendant exercised due
care with respect to the hazardous substance. Id. There is insufficient evidence before the
Court to find that BSJR is an innocent third party recognized under CERCLA. The
Government’s present motion, the record before the Court, and the evidence
overwhelmingly establish that BSJR should be held liable. There is no genuine issue of
material fact as to BSJR’s liability considering BSJR was a cause of the hazardous release by
allowing the materials to be placed at Site 2 and since BSJR agreed to house drums and other
materials without displaying proper due care by not investigating all the drums and other
materials contents. BSJR has not responded and therefore, has not identified any evidence to
leading the Court to make a contrary finding.
CONCLUSION
Accordingly, for the aforementioned reasons, the Government’s Motion for
Summary Judgment is GRANTED.

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(Doc. 78.) BSJR is liable for the Government’s

response to hazardous substances found at Site 2. BSJR and the Government are hereby
ORDERED to submit to the Court an amended proposed scheduling order as it relates to
The Court notes for the Record that the judgment and findings noted herein are limited only to BSJR’s
liability. As noted by the Court in its previous Order (Doc. 25), the issue of damages can now be addressed
since the Court has addressed the issue of liability.

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addressing the issue of damages in the above-captioned matter by Monday, September 14,
2015.
SO ORDERED, this

8th

day of September, 2015.
/s/ W. Louis Sands
W. LOUIS SANDS, SR. JUDGE
UNITED STATES DISTRICT COURT

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