United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge
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.
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.
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).
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.)
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.
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,
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.
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. 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.
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. 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 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.
foregoing reasons, ALC's motion will be ...