Dixon Lumber Company, Incorporated v. Austinville Limestone Company, Inc.

Filing 169

MEMORANDUM OPINION re 120 MOTION in Limine by Austinville Limestone Company, Inc. Signed by District Judge Elizabeth K. Dillon on 11/22/2017. (bw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DIXON LUMBER COMPANY, INC.,
Plaintiff,
v.
AUSTINVILLE LIMESTONE COMPANY,
INC.,
Defendant.

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Civil Action No. 7:16-cv-00130
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
Pending before the court is a motion by defendant Austinville Limestone Company, Inc.
(ALC) to preclude plaintiff Dixon Lumber Company, Inc. (Dixon) from introducing at trial any
evidence relating to drainage from ALC’s property onto Dixon’s adjacent Austin Meadows
property. (Dkt. No. 120.) The motion has been fully briefed and argued at the pretrial
conference held on November 13, 2017. For the reasons discussed below, the court will DENY
ALC’s motion, without prejudice to ALC’s ability to object at trial.
I. BACKGROUND
Dixon and ALC own adjacent plots of land in Wythe County, Virginia. Both companies
bought their property from Gulf & Western Industries (G&W), which operated a zinc and lead
mine on ALC’s site through a division called New Jersey Zinc Company (NJZ). Years before
ALC and Dixon purchased their properties, NJZ dumped limestone tailings, a byproduct of its
mining operations, on the land now owned by Dixon. Dixon seeks to hold ALC responsible for
environmental liabilities arising from those limestone tailings under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§
1906–9675.

Dixon’s original complaint alleged that ALC was liable for response costs as an “owner”
under 42 U.S.C. § 9607(a)(1) and as an “operator” under 42 U.S.C. § 9607(a)(2), as well as for
contribution under 42 U.S.C. § 9613. By order dated June 9, 2017, the court held that ALC was
not a corporate successor to G&W for purposes of CERCLA liability under § 9607(a)(1). (Dkt.
No. 70.) Thereafter, Dixon filed a first amended complaint adding the claim that ALC is liable
as an “arranger” pursuant to 42 U.S.C. § 9607(a)(3). By order dated October 31, 2017, the court
dismissed without prejudice Dixon’s arranger liability claim. Dixon’s original and its amended
complaint both center on allegations that ALC failed to timely remove tailings as required by the
parties’ agreements and failed to remove tailings in compliance with the standards of Virginia’s
Department of Environmental Quality (DEQ) and Department of Mining, Minerals, and Energy
(DMME).
After Dixon filed its amended complaint, ALC served its third interrogatories pursuant to
the court’s order permitting written discovery requests limited to the theory of arranger liability.
(Dkt. No. 84.) In response to ALC’s first question in its third interrogatories, which asked Dixon
to “[i]dentify the persons or entities with whom ALC ‘by contract, agreement, or otherwise,
arranged for disposal or treatment of hazardous substances’ as alleged in paragraph 32 of the
First Amended Complaint,” Dixon stated: “Disposals of hazardous mine tailings from ALC’s
adjacent property which drained onto Dixon’s property as well as disposed from ALC’s
operation on Dixon’s property caused releases and threats of releases of hazardous substances to
the environment which caused Dixon to incur past, present and future response costs.” (Ex. A,
Dkt. No. 121-1.)

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II. DISCUSSION
ALC moves to preclude Dixon from introducing evidence regarding drainage from
ALC’s property onto Dixon’s adjacent Austin Meadows property, because neither Dixon’s
original nor its amended complaint include allegations regarding drainage. In response, Dixon
argues that the July 2016 expert disclosure of Ben Faulkner, an environmental consultant,
notified ALC that Dixon would rely upon drainage from ALC’s property onto Austin Meadows.
The parties agree that the pending motion is moot with respect to arranger liability, in light of the
court’s dismissal of that claim. Dixon asserts that it intends to use the drainage evidence not for
purposes of liability, but rather for background and to address the equitable factors to be
considered as to its claim for contribution under 42 U.S.C. § 9613. The court will allow
evidence regarding drainage for these purposes.1
In resolving a contribution claim, the court allocates response costs among the liable
parties using such equitable factors as it deems appropriate. 42 U.S.C. § 9613(f). Courts often
consider the Gore factors, six equitable factors derived from the legislative history of CERCLA,
in making this determination. See Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., 791 F.
Supp. 2d 431, 490 (D.S.C. 2011). The first Gore factor is “the ability of the parties to
demonstrate that their contribution to a discharge, release, or disposal of a hazardous waste can
be distinguished.” Id. In many cases, this is “the dominant factor in determining each party’s
equitable share of liability” because it sheds light on “the extent to which the response costs are
attributable to waste for which that party is directly responsible.” Lockheed Martin Corp. v.
United States, 35 F. Supp. 3d 92, 132 (D.D.C. 2014) (internal citation omitted). Although at
times there are sufficient facts for a court to find that a particular facility, party, or disposal
action was responsible for a specific proportion of contamination at a site, see, e.g., AlliedSignal,
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Ultimately, though, the court may decide not to consider the evidence.

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Inc. v. Amcast Int'l Corp., 177 F. Supp. 2d 713, 724 (S.D. Ohio 2001), in cases where such a
finding is not possible, the court must “determin[e] the probable sources of . . . contamination at
the [s]ites.” Ashley II, 35 F. Supp. 3d at 124.
Here, Dixon alleges that drainage from ALC’s property was responsible for
contamination at Austin Meadows. Evidence regarding such drainage may be relevant to the
first Gore factor. See id.; see also Lockheed Martin, 35 F. Supp. 32 at 124. Or such evidence
may ultimately be irrelevant. The court simply cannot tell, based on the current record, whether
Ben Faulkner even claims that the drainage occurred from ALC’s property, rather than from
other locations.2 Nevertheless, because Dixon may well present factual bases sufficient for the
court to rely upon, the court cannot deem evidence regarding drainage irrelevant at this stage in
the litigation. See Fed. R. Evid. 402.
Furthermore, Dixon was not required to plead specific equitable contribution factors
under 42 U.S.C. § 9613. Indeed, ALC cites to no cases requiring the factors to be pled, and the
prima facie case requirements do not include pleading the contribution factors.3 In Minyard
Enter., Inc. v. Se. Chem. & Solvent Co., 184 F.3d 373, 386 (4th Cir. 1999), the defendant argued
that the district court erred in holding liable for contribution for response costs pursuant to §
9613, because, while the plaintiffs expressly alleged a cause of action under § 9607(a), they did
not expressly seek contribution among potentially responsible parties under § 113(f) in their
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Faulkner asserts that at Austin Meadows, “the primary cause of episodic release of tailings and related
contaminants was from storm water or episodic collapse of tailings when a section of RCP [reinforced concrete
pipe] would fail. This may have been related to on-going mine tailings removal activity on the site and stock-piling
of the removed tailings on site rather than hauling them off-site for sale or disposal.” (Dkt. No. 125-1 ¶ 4).
Faulkner goes on to explain that “much of the contamination load in the stream that entered the New River
downstream of the railroad . . . crossing this day was due to this previously undocumented source. The source is
very likely the upwelling of drainage from the New Jersey Zinc underground mine works that cross under the metal
flume.” (Id. ¶ 6). ALC argues that Faulkner’s identifying these possible contaminants is not relevant because the
source is unmapped mine works located downstream from ALC’s property and north of Route 69, whereas ALC’s
property and Austin Meadows are located south of Route 69.
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Nor does ALC point to interrogatories or deposition questions in which it sought information regarding
the equitable factors upon which Dixon relies or facts in support of each factor.

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complaint. The Fourth Circuit held that even though the plaintiffs did not expressly plead
contribution, they were entitled to contribution of response costs under § 9613 because they
pleaded and proved allegations supporting that they, as well as the defendant, were responsible
parties under § 107(a). 184 F.3d at 386. In this case, Dixon has expressly sought contribution,
and the court will not prematurely hinder Dixon’s opportunity to prove allegations relevant to the
court’s analysis under § 9613.
III. CONCLUSION
For the foregoing reasons, ALC’s motion will be DENIED without prejudice.
Entered: November 22, 2017.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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