Stewman v. Mid-South Wood Products of Mena, Inc.

993 F.2d 646, 1993 WL 165308
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 20, 1993
DocketNo. 92-2968
StatusPublished
Cited by4 cases

This text of 993 F.2d 646 (Stewman v. Mid-South Wood Products of Mena, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stewman v. Mid-South Wood Products of Mena, Inc., 993 F.2d 646, 1993 WL 165308 (8th Cir. 1993).

Opinion

McMILLIAN, Circuit Judge.

Appellants1 appeal from a final judgment entered in the United States District Court for the Western District of Arkansas,2 in favor of appellees, Mid-South Wood Products of Mena, Inc. (Mid-South), and the Ehlco Liquidating Trust (Ehlco). Stewman v. Mid-South Wood Products of Mena, Inc., No. 91-2047, slip op. at 46, 1992 WL 489729 [647]*647(W.D.Ark. July 28, 1992) (Stewman). Appellants sought damages for diminution in property values due to environmental pollution and response costs. For reversal, appellants argue the district court erred in finding (1) there had been no release of a hazardous substance on appellants’ property and (2) appellants’ costs were not recoverable response costs. As detailed below, we affirm the judgment of the district court.

Appellants are owners of property near a wood treatment facility now owned by Mid-South located in Mena, Arkansas. The facility was developed originally in the 1930’s by Nebraska Bridge Supply & Lumber Co. to treat posts and poles. It was purchased by Edward Hines Lumber Co.3 in 1967 and was used to pressure treat lumber using both pentachlorophenol (PCP) and creosote processes. In 1977, Ehlco changed to a pressure-treating process using chromium copper arsenate (CCA). In 1978, Ehlco sold the site to Mid-South, which continues to operate the facility using the CCA process. Mid-South has never used PCP or creosote in any of its processes.

In 1976, there was a fish kill in two streams in Mena, Arkansas. A state fish and game officer traced the fish kill to the “Old Pond,” a pond located on the site which had been used to collect and store PCP and creosote sludge from the treatment process. In 1981, the state environmental agency began investigating the site and found substantial quantities of hazardous substances, including chromium, arsenic, and PCP. In 1982, the site was added to the National Priorities List (the Superfund cleanup list). The Environmental Protection Agency (EPA) studied the site and adopted a remedial plan. EPA sued Mid-South and Ehlco to force them to clean up the site. Mid-South and Ehlco entered into a consent decree under which they agreed to perform the necessary cleanup. United States v. Edward Hines Lumber Co., No. 88-249 (W.D.Ark. May 16, 1987).

The consent decree identified the portion of the facility where there was contamination as the Superfund site or cleanup site. The remainder of the facility was not part of the Superfund site and is referred to as the Mid-South site. Ehlco hired B & F Engineering, Inc., .as consulting environmental engineer and project director, and Rollins Environmental Services, Inc., to perform the actual cleanup work. The remedial action outlined by EPA involved the excavation of all contaminated soil within the Superfund site and its placement in two mounds on the Mid-South site. The mounds were “capped” with impermeable clay, sand, top soil, and sod. Subsurface drains were installed around the mounds to collect subsurface water, which is collected and pumped to an on-site water treatment plant for treatment.

Water from the treatment plant is discharged into an unnamed tributary of a creek on the west side of the Mid-South site. The state environmental agency has issued discharge permits to the water treatment plant (“001 outfall”). The discharged water flows through an open ditch where other surface drainage water joins it (“002 outfall”). The water then drains across the Mid-South site to the southwest. The 001 and 002 outfalls are sampled and .tested weekly for PCP and twice a month for arsenic and chromium. In September 1989, EPA issued its Interim Closeout Report which found that all remedial activities had been completed in accordance with the Record of Decision (the cleanup plan). The site will continue to be monitored for 30 years and periodic testing is required.

David Stewman owns about 4 acres off the highway; he operates a mail order auto parts business on the property. His property is surrounded on three sides by the Mid-South site. A small ditch crosses his property from west to east and carries surface drainage water from an area north of the highway. The water in the ditch is monitored where it crosses the Mid-South site. Jerry Inman and his family own about 8 acres south of the Mid-South sité; Jerry Inman operates a used car lot on the property and his son and daughter-in-law live on the property. No water drains off the Mid-South site onto their property. Inman alleged that his property was contaminated by dust during the cleanup process. Dennis Gordon and his [648]*648family own about 6 acres west of the Mid-South site; Gordon alleged that Mid-South had in the past pumped waste creosote onto the ground and contaminated the groundwater. He does not claim contamination due to drainage water or dust. Kenneth Stalls-worth and his family own property across the highway from the Mid-South site and alleged water and soil contamination.

Some two years after the cleanup was completed, appellants filed this action in federal district court against Ehleo, Mid-South, Dale Rogers, EPA, and Law Engineering, Inc., alleging that the cleanup had not been successful and that their properties were and are contaminated by PCP, creosote, chromium, copper, and arsenic from the Superfund site. Appellants sought damages for the diminution in property value, response costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as well as pendent state claims for negligence and trespass. The district court granted summary judgment in favor of Rogers and EPA, and appellants dismissed their claims against Law Engineering, Inc.

Appellants hired DeWain Tennant, of Ciaira, an environmental consulting firm, to conduct tests of their properties. Tennant took samples of dust inside and outside structures on the properties. According to Ten-nant, the samples showed levels of PCP, arsenic, chromium, and copper in excess of a natural amount, although at trial Tennant could not identify what constituted a natural amount. Tennant also found excessive PCP in the Stewman ditch. Appellants spent a total of $109,106.68 for attorney’s fees, testing and engineering services, and environmental testing services.

Ehleo and Mid-South also presented expert testimony. Ludwig John Barinka, an environmental engineer employed by EPA from 1984 to 1991, was the EPA project manager for the Mid-South site. He testified that the site had been cleaned up and that the test levels at the 4 testing sites on the Mid-South site were all within limits of the Safe Drinking Water Act. Dr. Raymond Dean Harbison, a toxicologist, testified that chromium, copper, and arsenic, unlike PCP, are naturally occurring substances and are found in the water and soil. Dr. Harbison testified that in his opinion there had been no release or threat of release of PCP, chromium, copper, or arsenic from the Mid-South site.

Appellants’ common law claims for negligence and trespass were tried to a jury, which found in favor of Ehleo and Mid-South. Consistent with the jury verdict, the district court found no negligence and no release or threatened release of hazardous substances from the site. Stewman, slip op. at 43. The district court credited the testimony of appellees’ expert witness Dr. Harbi-son. Id. at 44.

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Cite This Page — Counsel Stack

Bluebook (online)
993 F.2d 646, 1993 WL 165308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewman-v-mid-south-wood-products-of-mena-inc-ca8-1993.