Carolina Power & Light Co. v. Alcan Aluminum Corp.

921 F. Supp. 2d 488, 2013 WL 419300
CourtDistrict Court, E.D. North Carolina
DecidedFebruary 1, 2013
DocketNos. 5:08-CV-460-FL, 5:08-CV-463-FL
StatusPublished
Cited by5 cases

This text of 921 F. Supp. 2d 488 (Carolina Power & Light Co. v. Alcan Aluminum Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carolina Power & Light Co. v. Alcan Aluminum Corp., 921 F. Supp. 2d 488, 2013 WL 419300 (E.D.N.C. 2013).

Opinion

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on: (1) defendant Georgia Power Company’s (“Georgia Power”) motion for summary judgment (DE # 882)1; (2) plaintiff Carolina Power & Light Company’s (“CP & L”) cross motion for partial summary [490]*490judgment (DE # 885); and (3) plaintiff Consolidation Coal Company’s (“Consol”) and claimant PCS Phosphate Company’s (“PCS Phosphate”) cross motion for partial summary judgment (DE # 941). As they relate to these summary judgment motions, the court also will address in this order: (1) defendant Georgia Power’s motion to strike affidavit (DE # 1024); and (2) plaintiffs’ joint motion to exclude (DE # 1061). The issues raised are ripe for adjudication. For reasons set forth below, defendant Georgia Power’s motion for summary judgment is GRANTED, plaintiffs’ motions for summary judgment are DENIED and the related motions are DENIED as moot.

STATEMENT OF THE CASE

The court’s orders dated March 24, 2010, and March 30, 2012, contained a detailed statement of the case, which section the court incorporates here. For ease of reference, the court repeats and updates much of that summary below.

Plaintiffs CP & L and Consol 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 action.

On September 1, 2009, plaintiffs filed their consolidated amended complaints against all defendants.2 Plaintiffs seek contribution toward the costs of removal actions at the Ward Site, pursuant to § 113(f) of CERCLA.3 On September 15, 2009, PCS Phosphate counterclaimed against plaintiffs and cross-claimed against other defendants seeking cost recovery based on their contribution to the removal action, pursuant to § 107(a) of CERCLA. See 42 U.S.C. § 9607(a).

Claimants allege that defendants sent electrical transformers to the Ward Site. [491]*491These transformers allegedly contained dielectric fluids that were used as an insulating and cooling medium. In turn, the dielectric fluid allegedly contained poly-chlorinated biphenyls (“PCBs”). Claimants identify three groups of defendants: (1) those who sent transformers to the Ward Site for repairs and for the purpose of disposing of PCBs contained therein or some part thereof; (2) those who sent transformers to the Ward Site on consignment and for the purpose of disposing of the transformers and/or PCBs contained therein or some portion thereof; and (3) those who sold transformers to Ward with the intent to dispose of such transformers and/or the PCBs contained therein or some portion thereof. Claimants maintain that the repair and consignment defendants are liable under CERCLA §§ 107(a)(2) and (3), while the sale defendants are liable only under § 107(a)(3).4

On October 13, 2009, defendants moved to dismiss the amended complaints and cross-claims. Defendants filed a single omnibus motion pursuant to Rule 12(b)(6) for failure to state a claim for relief, which motion was supplemented by individual defendants or groups of defendants filing additional motions to dismiss on alternative grounds where appropriate. By order entered March 24, 2010, the court denied defendants’ omnibus motion to dismiss. Claimants were allowed to proceed on their past owner liability and arranger liability claims. However, the court granted certain defendants’ motion to dismiss plaintiffs’ § 107(a) cost recovery claims, finding that response costs incurred pursuant to an administrative settlement with the United States are recoverable only under § 113(f).5 Subsequently, the court ruled on several motions to dismiss particular to individual defendants.

During a status conference with parties’ counsel on October 5, 2011, the parties suggested using a test case method to help expedite the discovery process. Magistrate Judge Daniel entered an order memorializing the conference on October 7, 2011, and this court further clarified scheduling issues with regard to test case defendants on November 14, 2011. That order allowed a continuance of Phase I discovery, and laid out motion filing deadlines for the test case to proceed.6 All parties were given the opportunity to object to the use of test case defendants or scheduling changes. On November 29, 2011, and upon consideration of such objections, this court amended its order and [492]*492decided to stay discovery for all other defendants pending the resolution of the test case defendants’ motions (DE # 651).7

This order addresses only the liability of defendant Georgia Power (the sales test case defendant).8 On January 30, 2012, Georgia Power moved for summary judgment and requested a hearing, which plaintiffs opposed and Georgia Power replied. Plaintiffs then filed cross-motions for partial summary judgment on the liability of Georgia Power, which Georgia Power opposed and plaintiffs replied.

STATEMENT OF THE FACTS

A. Ward Site

Since 2004, the Ward Site, which comprises a number of acres near Mt. Herman Road and the Raleigh-Durham International Airport in Wake County, North Carolina, has been subject to a time-critical removal action, as determined by the EPA, for environmental contamination caused by polychlorinated biphenyls (“PCBs”). Pis.’ Joint SOF ¶¶ 4, 14. The Site includes a former transformer repair, sales, and reconditioning facility (“the Ward Facility”) on eleven (11) acres of land, as well as other adjacent parcels of land.9 Id. at ¶¶ 14, 17-19, 23. The PCB contamination may be traced back directly to the Ward Facility, where Ward Transformer Company, Inc. and its successor in business operations Ward Transformer and Sales, Inc. (collectively “Ward”) worked on and stored transformers contaminated with PCBs. Id. at ¶¶ 39^49.10

B. Georgia Power

Georgia Power is a Georgia corporation with its principal place of business in Atlanta. It is an electric utility company, which uses electrical transformers to generate, transmit, distribute and sell electricity to meet approximately 97% of Georgia’s power needs. Pis.’ Joint SOF ¶ 50. When Georgia Power’s transformers fell into disrepair, it used its own repair facility, Forest Park, to inspect the transformers and either repair or dispose of them. Id. at ¶¶ 52-54. Transformers that Georgia Power did not wish to use any longer, but still believed had some value, were transferred to its Salvage Department (a.k.a. [493]*493Investment Recovery) and sold. Id. at ¶¶ 60-61.

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Bluebook (online)
921 F. Supp. 2d 488, 2013 WL 419300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carolina-power-light-co-v-alcan-aluminum-corp-nced-2013.