Consolidation Coal Company v. Ameren Corporation et al
ORDER denying 1469 Motion for Summary Judgment - Signed by District Judge Louise Wood Flanagan on 09/25/2014. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
DUKE ENERGY PROGRESS, INC.,
ALCAN ALUMINUM CORPORATION, et al.,
CONSOLIDATION COAL COMPANY,
ALCAN ALUMINUM CORPORATION, et al.,
This matter comes before the court on third-party defendant Truland Corporation’s
(“Truland”) Motion for Summary Judgment on its Third Affirmative Defense (460 DE 1477, 463
DE 1469). Truland urges that summary judgment is appropriate because the North Carolina statute
of repose bars third-party plaintiff PCS Phosphate Inc.’s claim. Responses and a reply have been
filed. This matter is now ripe for review.
Carolina Power and Light Company d/b/a Progress Energy Carolinas, Inc. (“CP&L”) and
Consolidation Coal Company (“Consol”) (collectively “plaintiffs”) entered into an administrative
settlement with the United States Environmental Protection Agency (“EPA”) in 2005, which
obligates them to perform removal actions at the Ward Transformer Superfund Site (“Ward Site”)
and to reimburse the EPA for its own removal costs related to the site, pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”),
42 U.S.C. §§ 9601-9675. Cross-claimant PCS Phosphate, though not a party to the administrative
settlement, entered into a trust agreement with plaintiffs and has contributed to funding the removal
On September 1, 2009, plaintiffs filed consolidated amended complaints against defendants.1
Plaintiffs sought contribution toward the costs of removal actions at the Ward Site, pursuant to §§
107 (a) and 113(f) of CERCLA. On September 15, 2009, defendant PCS Phosphate counterclaimed
against plaintiffs and cross-claimed against other defendants then named in the complaints, seeking
cost recovery based on their contribution to the removal action, pursuant to § 107(a) of CERCLA.
See 42 U.S.C. § 9607(a). On November 21, 2011, PCS Phosphate filed three third-party complaints,
naming forty third-party defendants who had not been previously sued by plaintiffs, including
Truland, for cost recovery.
Plaintiffs and PCS Phosphate (collectively “claimants”) allege that defendants sent electrical
transformers to the Ward Site. These transformers allegedly contained dielectric fluids that were
used as an insulating and cooling medium. In turn, the dielectric fluid allegedly contained
polychlorinated biphenyls (“PCBs”), a hazardous substance regulated under CERCLA. Truland
sent at least one transformer to the Ward Site for repair in 1982.
Originally, six separate lawsuits were filed by plaintiffs CP&L and Consol between September 12, 2008, and
April 30, 2009. They were consolidated into the two lead cases noted above at a joint scheduling conference, on August
Standard of Review
Summary judgment is appropriate where “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). The party seeking summary judgment bears the initial burden of demonstrating the absence
of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has met its burden, the nonmoving party then must affirmatively demonstrate with
specific evidence that there exists a genuine issue of material fact requiring trial. Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
Summary judgment is not a vehicle for the court to weigh the evidence and determine the
truth of the matter, but rather contemplates whether a genuine issue exists for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Similarly, credibility determinations are jury
functions, not those of a judge. Id. at 255. In making this determination, the court must view the
inferences drawn from the underlying facts in the light most favorable to the nonmoving party.
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Only disputes between the parties over
facts that might affect the outcome of the case properly preclude the entry of summary judgment.
Anderson, 477 U.S. at 247–48.
Truland argues that the North Carolina statute of repose bars PCS Phospate’s CERCLA cost
recovery claim, relying on the recent Supreme Court case of CTS Corp. v. Waldburger, 134 S.Ct.
2175 (2014). North Carolina’s statute of repose provides as follows:
Unless otherwise provided by statute, for personal injury or physical damage to
claimant’s property, the cause of action, except in causes of actions referred to in
G.S. 1-15(c), shall not accrue until bodily harm to the claimant or physical damage
to his property becomes apparent or ought reasonably to have become apparent to the
claimant, whichever event first occurs. Provided that no cause of action shall accrue
more than 10 years from the last act or omission of the defendant giving rise to the
cause of action.
N.C. Gen. Stat. § 1-52(16).
“Congress enacted CERCLA in 1980 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.” Waldburger, 134 S.Ct. at 2180 (internal quotation marks omitted). CERCLA
establishes federal causes of action, such as the cost recovery claim that PCS Phosphate brought
against Truland. See 42 U.S.C. § 9607(a). However, it does not establish any federal cause of
action for personal injury or property damage. Instead, CERCLA has a uniform discovery rule for
state tort plaintiffs with such injuries. See 42 U.S.C. § 9658; Waldburger, 134 S.Ct. at 2180. The
discovery rule preempts state statutes of limitations for actions “brought under State law for personal
injury, or property damages, which are caused or contributed to by exposure to any hazardous
substance, or pollutant or contaminant, released into the environment from a facility.” 42 U.S.C.
In Waldburger, landowners brought suit against the company that ran a manufacturing plant
for damage to plaintiff’s property that they discovered near the plant in Asheville, North Carolina.
134 S.Ct. at 2181. They asserted state-law nuisance claims. Id. The Supreme Court held that such
claims were barred by North Carolina’s statute of repose, despite CERCLA’s discovery rule under
42 U.S.C. § 9658, which preempts state statutes of limitations. Id. at 2188.
In this case, PCS Phosphate has not brought a state cause of action for any personal injury
or property damages. Therefore, the particular provision of CERCLA examined in Waldburger for
preemption purposes is inapplicable. See 42 U.S.C. § 9658; Waldburger, 134 S.Ct. at 2181. North
Carolina’s statute of repose does not apply to PCS Phosphate’s cost recovery claim, because it is not
a state law claim but rather a cost recovery claim under 42 U.S.C. § 9607(a). See N.C. Gen. Stat.
§ 1-52; 42 U.S.C. § 9658(a)(3). Thus, Truland’s motion for summary judgment on the basis of
North Carolina’s statute of repose fails as a matter of law.
For the reasons given, the court DENIES Truland’s Motion for Summary Judgment on its
Third Affirmative Defense (460 DE 1477, 463 DE 1469).
SO ORDERED, this the 25th day of September, 2014.
LOUISE W. FLANAGAN
United States District Judge
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