Barrett Properties, LLC v. Nichols Transport

• Court: Court of Appeals of Georgia
• Decided: June 29, 2012
• Docket: A12A0148
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

June 29, 2012

In the Court of Appeals of Georgia A12A0148. BARRETT PROPERTIES, LLC et al. v. ROBERTS AD-007 CAPITOL, INC. et al.

ADAMS, Judge.

Barrett Properties, LLC (“Barrett”) and CEA, LLC, formerly known as Capitol

USA, LLC and ESHCO, LLC (“CEA”) sued, among others, Roberts Capitol, Inc., Q.

E. P. Co., Inc., and Roberts Consolidated Industries, Inc. (the “Roberts Defendants”),

for damages arising out of the alleged chemical contamination of an adhesives

manufacturing facility in Whitfield County (the “Site”). The trial court granted the

Roberts Defendants’ motion for summary judgment on all claims. On appeal, Barrett

and CEA argue that the trial court erred in awarding summary judgment to the

Roberts Defendants on their trespass, nuisance, negligence and strict liability claims

(the “common law tort claims”), as well as on their statutory contribution claim. We agree with the trial court that Barrett’s and CEA’s common law tort claims fail for

lack of evidence that the Roberts Defendants proximately caused them any harm and,

as to the statutory contribution claim, that Barrett and CEA did not show that they had

taken “corrective action” for purposes of seeking contribution under OCGA § 12-9-

96.1 (e). Accordingly, we affirm.

Summary judgment is proper when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We

review a grant or denial of summary judgment de novo and construe the evidence in

the light most favorable to the nonmovant. See Home Builders Assn. of Savannah v.

Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So viewed, the evidence shows that Barrett is the current owner of the Site and

CEA is a former owner. The Site has been used since 1994 as an adhesives

manufacturing facility. In 2004, an environmental assessment showed that a number

of volatile organic compounds (VOC) were present in the soil and groundwater. The

assessor concluded that this contamination was possibly attributable to a 1995 tanker

truck spill.1 The EPD was notified of a release of trichloroethene and achloroethene

1 Barrett and CEA sued, in addition to the Roberts Defendants, the driver of the tanker truck, Frank Parham, the owner of the truck, Nichols Transport Co., Inc., and the supplier of the spilled product, Giant Resource Recovery-Sumter, Inc. f/k/a

2 to the soil at the Site. CEA, through a consultant, submitted corrective action plans

to the EPD in August 2006 (the “2006 CAP”) and June 2009 (the “2009 CAP”).

The Roberts Defendants leased the Site from Barrett in 2005 and continued the

adhesives manufacturing operation. In April 2008, an analysis of groundwater

samples taken from one of the monitoring wells at the Site showed a sharp increase

in concentrations of the VOC toluene, a solvent which, the parties agree, is used in

the adhesives manufacturing process. According to the affidavit of geologist Kirk

Kessler, a ground water monitoring well on the Site (“MW-2”) showed an increase

in toluene concentrations “from 4 [parts per billion (“ppb”)] during sampling events

in June and September of 2004 to a peak of 1090 ppb during a sampling event during

April of 2008.” This, Kessler avers, “indicates that a new release of toluene occurred

at some point between September of 2007 and April of 2008.”2 As Barrett and CEA

Southeastern Chemical & Solvent Co., Inc. (the “Nichols Defendants”). Barrett and CEA appealed from the trial court’s order granting summary judgment to the Nichols Defendants, but they have withdrawn that appeal, leaving the Roberts Defendants as the only appellees. 2 Kessler also deposed that, “I don’t have an opinion whether the toluene was a result of Roberts or past operators. . . . It does not appear the magnitude of that release will drive the need for corrective action.”

3 admit, however, “[t]oluene concentrations at MW-2 . . . dropped to 410 ppb in

October 2008 and subsequently returned to a non-detect status.”

The evidence also showed that an environmental consultant, Dr. Aaron

Williams, visited the Site during the time it was occupied by the Roberts Defendants.

He observed some “chem absorb” in the drum storage area, which may have been

related to a spill. Williams also testified that “I have no idea what the material spilled

was,” and, further, that “I don’t remember toluene being an issue based on the risk

reduction standards.”

1. The trial court concluded that the evidence presented in support of the

common law tort claims failed to show that the Roberts Defendants proximately

caused any harm to Barrett or CEA. “The four elements to any tort action are a duty,

a breach of that duty, causation and damages.” Traina Enterprises v. RaceTrac

Petroleum, 241 Ga. App. 18 (525 SE2d 712) (1999) (footnote omitted).

To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant’s conduct and the alleged injury. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly

4 balanced, it becomes the duty of the court to grant summary judgment for the defendant.

Grinold v. Farist, 284 Ga. App. 120, 121-122 (1) (643 SE2d 253) (2007) (citation and

punctuation omitted).

Barrett and CEA argue that April 2008 toluene detection at MW-2 was

evidence of a recent spill at the Site, and that the circumstantial evidence, including

the Roberts Defendants’ operations on the Site from 2005 onward, pointed to the

Roberts Defendants as the source of that spill. The spike in toluene detected in

samples taken from a monitoring well in 2008 was short-lived, however, with the

2009 and 2010 samples, as described by geologist Kessler, “too low for the analytical

method used to test for its presence to indicate that the target chemical is present in

the sample.” As Barrett and CEA acknowledge, toluene was detected at the Site

before the Roberts Defendants occupied the property. Thus, even if the spike in

toluene readings at MW-2 can be attributed to the Roberts Defendants, Barrett and

CEA cannot point to the Roberts Defendants as the source of any toluene

contamination that is presently detectable on the Site.

Barrett and CEA suggest that even if there is a lack of evidence that any current

contamination at the Site is attributable to the Roberts Defendants, there is

5 nevertheless evidence that the Roberts Defendants caused them harm. Specifically,

they argue that there is at least circumstantial evidence that the Roberts Defendants

were responsible for the release of toluene reflected by the spike in toluene

concentrations detected at MW-2, which, in turn, caused the EPD to require CEA to

assess that increase. Barrett and CEA contend that they are entitled to recover the

additional environmental assessment costs and attendant professional fees associated

with that investigation.

Even if we assume, without deciding, that the circumstantial evidence is

sufficient for a trier of fact to conclude that the Roberts Defendants spilled the

toluene reflected in the April 2008 measurements at MW-2, Barrett and CEA do not

support their argument that they were harmed thereby because the EPD required

additional assessments. Rather, Barrett and CEA represented to the trial court at the

motion hearing that, “[i]n connection with the [Roberts Defendants] claim, there was

no notification to the EPA or EPD.” In their brief in opposition to the motion for

summary judgment below, Barrett and CEA represented that, other than the 1995

spill, there is no evidence of a release of a “reportable quantity” of hazardous

chemicals at the Site. And as the Roberts Defendants point out, Barrett and CEA

6 provide no record citation to support their assertion that the EPD required an

investigation of the April 2008 toluene concentrations.3

In light of the foregoing, there is a lack of evidence that the Roberts Defendants

were the proximate cause of any harm to Barrett and CEA. It follows that the trial

court did not err in awarding summary judgment to the Roberts Defendants on

Barrett’s and CEA’s common law tort claims.

2. Barrett and CEA also sought contribution from the Roberts Defendants

pursuant to OCGA § 12-8-96.1 (e). This provision provides, in pertinent part, that

“[d]uring or following the undertaking of any corrective action, any person may seek

contribution from any other person who has contributed or is contributing to any

release of a hazardous waste, a hazardous constituent, or a hazardous substance.” In

3 Barrett and CEA do cite the 2009 CAP and the deposition of Kirk Kessler as evidence that they notified the EPD of the substantial increase in toluene. The 2009 CAP shows a “single detection of toluene” at MW-2 below the risk reduction requirement. The cited portion of Kessler’s deposition generally refers to toluene soil contamination, which was below the EPD notification requirement, and when asked about the notification requirements applicable to toluene in ground water, Kessler indicated that “I can’t verify it without looking it up.” Barrett and CEA also cite a November 2008 Source Investigation Report to show that they contracted for a required environmental assessment and reported the findings to the EPD. The source investigation report references an EPD notice of deficiency regarding “March and June 2008 sampling events.” The report does not, however, discuss toluene in ground water and focuses on numerous other VOCs present at the Site.

7 Walker County v. Tri-State Crematory, 292 Ga. App. 411, 414 (1) (664 SE2d 788)

(2008) we held that, for purposes of this statute, “‘corrective action’ taken by a person

refers to action taken pursuant to an administrative consent order entered with the

EPD Director, or action taken pursuant to an administrative order issued by the EPD

Director directing that the necessary action be taken.” Id. at 415 (1).

The trial court granted summary judgment to the Roberts Defendants on the

statutory contribution claim because there was no evidence that a consent or

remediation order had been issued by the EPD to either Barrett or CEA, and,

therefore, they could not show that they had taken the required “corrective action” for

purposes of OCGA § 12-8-96.1 (e). Barrett and CEA acknowledge that this issue is

controlled by our decision in Walker County. They contend, however, that Walker

County was wrongly decided by this Court and should be overturned and,

alternatively, that the trial court interpreted Walker County too broadly. We disagree.

Barrett and CEA argue that Walker County was wrongly decided because the

Legislature did not limit in any way the private right of contribution it had created via

OCGA § 12-8-96.1 (e), and there was no reason for this Court to supply a meaning

for “corrective action” so as to provide a disincentive to voluntary remediation efforts

by private parties. But in deciding Walker County we have already set forth, at length,

8 the reasons for our construction of OCGA § 12-8-96.1 (e), see 292 Ga. App. at 413-

416 (1), and Barrett and CEA provide no good reason for this Court to now overturn

this established precedent. Further, the trial court did not misapply Walker County.

We have defined “corrective action” for purposes of OCGA § 12-8-96.1 (e), see

Walker County, 292 Ga. App. at 415 (1), and the trial court simply applied that

definition to the evidence of record. We find no error.4

For the foregoing reasons, the trial court’s order must be affirmed.

Judgment affirmed. Barnes, P. J., and McFadden, J., concur.

4 The Roberts Defendants’ request for frivolous appeal sanctions is denied.