United States v. Middleton

276 F.Supp.3d 1352

UNITED STATES of America, Plaintiff,

v.Richard MIDDLETON, Circle Environmental, Inc., BSJR, LLS, and Waterpollutionsolutions.com, Inc., Defendant.

CASE NO.: 1:11–CV–127(WLS)

United States District Court, M.D. Georgia, Albany Division.

Signed March 22, 2017

Amy R. Gillespie, Angela Mo, Rachael Kamons, US Department of Justice, Washington, DC, Davis H. Forsythe, US Dept. of Justice, Denver, CO, Stewart R. Brown, US Attorney's Office, Macon, GA, for Plaintiff.

Wilbur T. Gamble, III, Dawson, GA, for Defendant.

ORDER

W. LOUIS SANDS, SR., JUDGE

Presently pending before the Court is the Government's Motion for Summary Judgment on Costs against Defendant BSJR, LLC. (Doc. 91.) For the following reasons, the Government's Motion for Summary Judgment on Costs is GRANTED .

PROCEDURAL BACKGROUND

On September 16, 2011, the Government initiated the above-captioned case by filing a complaint against Defendants Circle Environmental, Inc. ("Circle Environmental"), Waterpollutionsolutions.com, John Middleton, owner and operator of both Circle Environmental and Waterpollutionsolutions.com (collectively "CEISC"), and BSJR, LLC. (Doc. 1.) On January 31, 2014, CEISC filed a Motion for Summary Judgment against the Government. (Doc. 49.) On September 30, 2014, this Court denied Defendants' Motion for Summary Judgment.¹ (Doc. 65.) On December 8, 2014, the Government filed a Motion for Summary Judgment against Defendant BSJR. (Doc. 78.) On September 8, 2015, this Court granted the Government's Motion for Summary Judgment, finding Defendant BSJR liable for the Government's response to hazardous substances found at Site 2, and ordering the Parties to engage in discovery on the issue of damages. (Doc. 86 at 9–10.) The Government filed the instant Motion for Summary Judgment on Costs on January 31, 2017. (Doc. 91.) Defendant BSJR did not file a response. (See Docket.) The Court now finds the Government's instant motion ripe for review.

SUMMARY JUDGMENT STANDARD

I. Federal Rule of Civil Procedure 56

Federal Rule of Civil Procedure 56 allows a party to move for summary judgment where it contends no genuine issue of material fact remains and the party is entitled to judgment as a matter of law. "Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Maddox v. Stephens , 727 F.3d 1109, 1118 (11th Cir. 2013). "A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor." Chapman v. AI Transp. , 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). "An issue of fact is ‘material’ if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "It is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Tipton v. Bergrohr GMBH–Siegen , 965 F.2d 994, 998 (11th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

The movant bears the initial burden of showing, by reference to the record, that there is no genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Chapman , 229 F.3d at 1023. The movant can meet this burden by presenting evidence showing that there is no genuine dispute of material fact, or by demonstrating to the district court that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. See Celotex , 477 U.S. at 322–24, 106 S.Ct. 2548. Once the movant has met its burden, the nonmoving party is required "to go beyond the pleadings" and identify "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548. To avoid summary judgment, the nonmoving party "must do more than summarily deny the allegations or ‘show that there is some metaphysical doubt as to the material facts.’ " Matsushita , 475 U.S. at 586, 106 S.Ct. 1348 (citations omitted). Instead, the nonmovant must point to competent record evidence that would be admissible at trial. See also Jones v. UPS Ground Freight , 683 F.3d 1283, 1294 (11th Cir. 2012) (quoting Macuba v. Deboer , 193 F.3d 1316, 1322 (11th Cir. 1999) ) (noting that hearsay may be considered on a motion for summary judgment only if it "could be reduced to admissible evidence at trial or reduced to admissible form."). Such evidence may include affidavits or declarations that are based on personal knowledge of the affiant or declarant. See Fed. R. Civ P. 56(c)(4).

On a motion for summary judgment, the Court must view all evidence and factual inferences drawn therefrom in the light most favorable to the nonmoving party and determine whether that evidence could reasonably sustain a jury verdict in the nonmovant's favor. See Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548 ; Allen , 121 F.3d at 646. However, the Court must grant summary judgment if there is no genuine issue of material fact and the movant is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(c).

II. Local Rule 56

Local Rule 56 requires the following:

The respondent to a motion for summary judgment shall attach to the response a separate and concise statement of material facts, numbered separately, to which the respondent contends there exists a genuine issue to be tried. Response shall be made to each of the movant's numbered material facts. All material facts contained in the moving party's statement which are not specifically controverted by the respondent in respondent's statement shall be deemed to have been admitted, unless otherwise inappropriate.

M.D. Ga. L.R. 56. The Government complied with the Federal Rules of Civil Procedure, the Local Rules, and the order of this Court by timely filing a motion for summary judgment and a Statement of Material Facts. Defendant BSJR did not file a response. The Court will now address the Government's motion on the merits.

FACTUAL BACKGROUND

The following facts are derived from the Government's Statement of Material Facts. (Doc. 91–2.) On September 16, 2011, the Government filed the present suit seeking recovery of response costs pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607(a), ("Superfund"). (Doc. 1.) On September 8, 2015, this Court held BSJR liable in connection with the property located at 2222 Albany Highway, in Terrell County, GA (hereafter "Site 2."). (Doc. 86 at 5.) The soil at Site 2 was contaminated with hazardous substances including benzo(b)fluoranthene, chromium, lead, mercury, bis(2–ethylhexyl)phthalate, and arsenic. (Doc. 91–2 at ¶ 2.) Drums located on the property at Site 2 also contained hazardous substances including acetone, benzene, ethylbenzene, xylenes, antimony, chromium, copper, lead, mercury, nickel, sodium and zinc. (Id. )

As a result of the contamination, the United States Environmental Protection Agency ("EPA"), conducted extensive response activities including: inspection of the site; staging, inventorying, photographing, sampling, and removing the drums and roll-off containers; air monitoring; soil and air sampling; analysis of drums, soil and air samples; review of data and determination whether further mitigation was necessary; and seeking reimbursement of the costs of the abovementioned removal activities, through enforcement actions, including this case. (Doc. 91–2 at ¶ 3.) Below is a description and summary of the costs² the EPA incurred in relation to removal activities of Site 2.³

EPA incurred "direct costs," i.e. site specific costs, in the form of both intramural and extramural. (Doc. 91–2 at ¶ 7–8.) Intramural costs relating to payroll and travel expenses for EPA employees totaled an amount of $84,686.20. (Doc. 91–2 at ¶ 7.) EPA also incurred costs relating to contractual obligations or extramural costs in the amount of $80,068.84. (Doc. 91–2 at ¶ 8.) EPA incurred "indirect costs," which are attributable to the Superfund program. (Doc. 91–2 at ¶ 9.) These costs are necessary for the administration and operation of the Superfund program and support site-specific cleanup efforts, but they are not directly accounted for on a site-specific basis. (Doc. 91–2 at ¶ 9.) Indirect costs can include rent, utilities, support staff salaries, and employee benefits. (Doc. 91–2 at ¶ 9.) The EPA incurred $86,732.64 in indirect costs. (Doc. 91–2 at ¶ 10.) The EPA asserts that its cost calculation methodology was developed in accordance with the Executive Office of the President, Office of Management and Budget's Statement of Federal Financial Accounting Standard # 4, Managerial Cost Accounting Concepts and Standards for the Federal Government. (Doc. 91–2 at ¶ 11.) EPA incurred a total of $251,487.68 in response costs in connection with the release or threatened release of hazardous substances at Site 2. (Doc. 91–2 at ¶ 16.)

The Government settled with thirty-four (34) other potentially responsible parties (hereafter "Generator Group") through an administrative settlement agreement resolving their liabilities for Site # 1 and Site # 2. (Doc. 91–2 at ¶ 12.) On April 2, 2013, EPA received a payment of $487,800 from the Generator Group. Of this payment, $110,380.04 was credited to Site 2. (Doc. 91–2 at ¶ 13.) The payment from the Generator Group was divided pro rata between Site 1 and Site 2 based upon EPA costs that had been incurred for each Site as of the time of payment. (Doc. 91–2 at ¶ 13.) On June 8, 2015, EPA received a payment...