[Brief introduction here]
(Counts II and III)
For the reasons set forth above, Shaw is entitled to judgment as a matter of
law on all of Premier’s claims against it.
As set out fully in the accompanying Statement of Material Facts (“SSMF”),
this case involves the fallout from a failed landlord-tenant arrangement between Plaintiff Premier Associates, Inc. (“Premier”), the landlord, and Defendant EXL Polymers, Inc. f/k/a Nycore, Inc. (“Nycore”), the tenant. Nycore was in the business of manufacturing products such as building materials and pallets from a form of post-industrial carpet waste known as selvedge. (SSMF ¶30, 37.) In 2001, Nycore’s predecessor approached Shaw and asked for selvedge for use as a raw material in its manufacturing plant in Medford Minnesota. (SSMF ¶12.) After some initial testing and due diligence, Shaw, which was delighted to find a recycled use for its selvedge, provided carpet selvedge to Nycore and its predecessor in Minnesota from 2001 through May of 2006. (SSMF ¶¶16, 19, 23, 40.)
Premier’s owner was an investor in Nycore’s parent company, and in 2006,
when Premier learned that Nycore intended to move its operations to Georgia, Premier caused Nycore to lease its Mendel Drive building (the “Mendel facility” or “Mendel Drive”) to house Nycore’s Georgia operations. (SSMF ¶¶51, 55, 56, 58, 65.) Nycore’s April 2006 lease with Premier specifically authorized it to receive, warehouse, and recycle carpet selvedge. (SSMF ¶¶68, 70.) From early May 2006 through late July 2006, at Nycore’s explicit instruction (with the express knowledge and consent of Premier), Shaw shipped carpet selvedge to the Mendel facility to be recycled by Nycore. (SSMF ¶¶73, 74, 77-78.)
When Nycore breached its lease and abandoned the property in late 2006,
Premier, was left with a building and grounds partially filled with carpet selvedge. (SSMF ¶¶96-99, 104.) After Nycore had physically abandoned the building and left the carpet, Premier knowingly allowed its building to remain both unsecured and uninsured. (SSMF ¶¶94, 102.) Eventually, in February 2008, over eighteen months after Shaw’s last delivery of selvedge to Nycore, the Mendel facility was destroyed as a result of a fire set in the building. (SSMF ¶132.)
After the fire destroyed its building, Premier – hoping Shaw would cover its loss – filed this complaint against Shaw and pinned its hopes to a bevy of environmental claims that never materialized and common law claims that cannot survive these undisputed facts. As discussed below, those claims should be disposed of here. Premier’s complaint spans 72 pages and contains ten counts against Shaw, and Shaw is entitled to summary judgment on all counts.
Summary judgment is appropriate where no genuine dispute about the
material facts exists and judgment can be granted to the moving party as a matter of law. Fed. R. Civ. Proc. 56(c). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” summary judgment for the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Nycore obtained the carpet selvedge from Shaw pursuant to a valid
commercial agreement. Under Georgia law, title to the carpet selvedge plainly passed to Nycore when Shaw delivered the materials to the Mendel facility pursuant to the contract between the parties. See O.C.G.A. § 11-2-401(2). Pursuant to their agreement, Shaw provided carpet selvedge to Nycore plus a small payment to offset Nycore’s delivery costs. (SSMF ¶¶18, 38, 79.) The transaction enabled Shaw to save a small amount of money by avoiding landfill tipping fees that it would have otherwise incurred and, more importantly, enabled Shaw to comply with the goals of its corporate recycling program. (SSMF ¶79.) From Nycore’s perspective, the agreement secured the critical raw material it needed in its manufacturing process.1 It is undisputed that the parties intended that the selvedge become the property of Nycore upon delivery. (SSMF ¶79.) Once Shaw delivered the carpet selvedge and it was accepted by Nycore, it became the
property of Nycore.
The State of Georgia is authorized to administer a hazardous waste program
pursuant to the Georgia Hazardous Waste Management Act (“GHWMA”). This Georgia program implements the requirements of the federal Resource
Conservation and Recovery Act (“RCRA”). In crafting its program, Georgia incorporated RCRA regulations by reference. See O.C.G.A. § 12-8-60, et seq. Pursuant to GHWMA, “hazardous waste” is defined as “any solid waste which has been defined as a hazardous waste in regulations promulgated by the administrator of the United States Environmental Protection Agency pursuant to the federal act which are in force and effect on February 1, 1996, codified as 40 CFR §261.3 and any designated hazardous waste.” See O.C.G.A. § 12-8-62(10). To determine if a substance is subject to the GHWMA and RCRA hazardous waste regulations, one first looks to see if the substance is a solid waste as defined in Subtitle C of the federal regulatory definitions; if so, then one looks to see if the substance either exhibits one of the four hazardous waste characteristics (ignitability, corrosivity, reactivity, or toxicity) or if it appears on the list of hazardous wastes included in the regulations. Only these so-called “characteristic” or “listed” hazardous wastes are regulated under RCRA.
Even if the carpet selvedge was considered a solid waste under the Subtitle C definition, it would not be considered a hazardous waste.2 The carpet selvedge is not included as one of the listed wastes, thus the only question left to determine is whether the selvedge exhibits one of the four characteristics of hazardous wastes.
Premier’s own expert, Charles H. MacPherson Jr., tested and concluded that the carpet selvedge at the Mendel facility did not exhibit any of the four
characteristics. MacPherson twice tested the carpet selvedge to ascertain whether it demonstrated toxicity characteristics,3 and twice determined that it did not. (SSMF ¶¶137-40, 152-53.) In fact, in his November 2, 2009 expert report, MacPherson specifically states that based on his testing, none of the waste materials at the Mendel Site would be classified as “hazardous waste.” (SSMF ¶153.) As MacPherson discusses in his report, in early 2008, he took samples of the carpet selvedge from the Mendel Site and submitted for laboratory analysis a Toxicity Characteristic Leaching Procedure (“TCLP”), i.e., a test to determine whether the selvedge exhibited toxicity. According to MacPherson, these TCLP tests showed that the carpet selvedge would not be classified as hazardous waste. (SSMF ¶140.) On September 30, 2009, MacPherson took five additional waste samples from the materials that had been affected by a fire at the Mendel facility and conducted a similar TCLP test. MacPherson’s conclusion remained the same: “Based on these analyses, none of the waste materials would be classified as “‘hazardous waste.’” (SSMF ¶153.) During his January 7, 2009 deposition, Mr. MacPherson affirmed that his test results show that the carpet selvedge at the Mendel facility is not hazardous. (Id.) Shaw’s expert, Brian A. Rindt, P.E., also concludes that the carpet selvedge is not hazardous waste under RCRA. (SSMF ¶154.)
Both experts agree that the carpet selvedge at the Mendel Site is not
hazardous waste. Premier has not offered a scintilla of evidence supporting its assertion that the carpet selvedge at the Mendel Site is hazardous waste. Therefore, Shaw should be granted summary judgment on Premier’s hazardous waste claims.
Premier also alleges that Shaw contributed to the handling of solid and
hazardous waste that may present an “imminent and substantial endangerment to human health or to the environment.” (Compl. ¶ 101.) First, as discussed in Sections 3, supra, and 6, infra, the carpet selvedge is neither a hazardous nor solid waste. Even if such material is considered a solid waste today, it was not a solid waste when Shaw delivered it to Nycore and thus Shaw bears no legal responsibility under RCRA for the carpet selvedge at the Mendel facility.
More to the point with respect to Count III, absolutely no evidence exists
that the carpet selvedge “may present an imminent and substantial endangerment to health or the environment.” Indeed, all evidence points to the contrary. The “imminent” requirement demands that the alleged endangerment threatens to occur immediately and excludes waste that “no longer presents harm.” Meghrig v. KFC Western, Inc., 516 U.S. 479, 480 (1996). “A vague possibility of future harm cannot satisfy the statute.” Chem. Weapons Working Group, Inc. v. Dep’t of Defense, 61 Fed. Appx. 556, **3 (10th Cir. 2003).
First, there is nothing imminently dangerous to human health or to the
environment about carpet itself – even burned carpet. The constituents of carpet selvedge remain largely contained within the carpet structure and are not released above de minimis levels into the air, soil, or water. . .” (SSMF ¶155.) Premier has not presented any evidence, either in expert testimony or from the discovery produced, that the carpet materials pose an “imminent and substantial” danger to health or the environment.
Second, EPD’s decision not to list the Mendel facility (see Section 5.A.
infra) is prima facie evidence of the lack of “imminent and substantial
endangerment.” Under HSRA, the director of EPD is charged with ensuring “that corrective action is taken for releases of hazardous wastes, hazardous constituents, or hazardous substances into the environment that pose a present or future danger to human health or the environment.” O.C.G.A. § 12-8-94(2). In carrying out this responsibility, EPD issued a “no listing” letter in response to Premier’s release notification, stating that it “has no reason to believe that a release exceeding a reportable quantity has occurred.” (SSMF ¶149.) If any danger existed, much less an imminent and substantial one, EPD would have not only refrained from sending the “no listing” letter, it would have order corrective action pursuant to its statutory
obligations. This evidence undermines any argument by Premier to claim that an“imminent and substantial” danger exists. See Avondale Federal Sav. Bank v. Amoco Oil Co., 997 F. Supp. 1073, 1080 (N.D. Ill. 1998) (denying cleanup costs under RCRA where state agency’s “no further remediation letter” was prima facie evidence that no imminent and substantial endangerment existed).
Finally, the lack of imminent and substantial endangerment is ultimately
proven by Premier’s own inaction: after finding just two constituents above the reporting notification threshold, Premier waited five months to submit its release notification to the EPD, even though regulations require such notifications to be submitted within thirty days. Ga. R. & Regs. §391-3-19-.04(4); (SSMF ¶148.) Had Premier or its consultant, MacPherson, truly believed the material presented an imminent and substantial danger, surely they would have acted more expeditiously. (SSMF ¶148.) The undisputed evidence shows that no such threat exists.
Like its claims under RCRA, Premier’s claims under the Georgia Hazardous Site Response Act (“HSRA”) are equally baseless. HSRA creates an “administrative environmental-cleanup procedure” that permits the director of EPD to order responsible persons to take corrective actions whenever the director has reason to believe there has been a release of hazardous wastes or substances posing a danger to health or the environment. McElmurray v. Augusta-Richmond County, 274 Ga. App. 605, 613 (2005); see generally O.C.G.A. § 12-8-90 et seq. Unlike RCRA, HSRA does not have a citizen suit provision. O.C.G.A. § 12-8-90 et seq. Here, EPD has determined that no release of hazardous constituents exceeding a reportable quantity has occurred at the Mendel facility; therefore no further action can be taken against Shaw under HSRA.
HSRA requires that a person who is aware of a past or present release of a
hazardous constituent above the so-called “notification concentration” inform EPD of that release in thirty days. Ga. R. & Regs. § 391-3-19-.04. If EPD determines that the release exceeds the reportable quantity, it can require remediation of that release. After reviewing Premier’s HSRA Release Notification/Reporting Form, submitted in October 2008, EPD determined that it had “no reason to believe that a release exceeding a reportable quantity has occurred,” at the Mendel facility and issued a “no-listing” letter to Premier stating as such on December 8, 2008. (SSMF at ¶149.) EPD reached this conclusion after evaluating Premier’s submission of the test results regarding the substances detected by its expert in the burnt carpet ash and soil. (SSMF ¶¶147-49.) Though Premier’s expert MacPherson found two constituents of concern (acetophenone and naphthalene) that were above the notification concentrations, because a release exceeding the
reportable quantity has not occurred, EPD decided that the Mendel facility should not be listed on the HSI and did not require any remediation of the property. (SSMF ¶¶147-50.) EPD’s final determination as set forth in the no-listing letter is conclusive: there are no current restrictions on the use of the Mendel Site pursuant to HSRA, nor is Premier required to conduct any further testing or cleanup. (SSMF ¶150.)
HSRA does not include a citizen suit or other similar provision. See O.C.G.A. O.C.G.A. § 12-8-90 et seq. Thus, liability under HSRA is limited to either (a) implementing cleanup or testing ordered by the EPD, or (b) reimbursement by a responsible party to EPD for the costs of cleanup or testing ordered by the EPD. Because a release exceeding the HSRA reportable quantity has not occurred, EPD has not ordered any corrective action. Thus, no liability exists for Shaw under HSRA.