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Taylor v. Michelin North America, Inc.

United States District Court, N.D. Oklahoma

March 30, 2018

DENNIS TAYLOR, et al. Plaintiffs,
MICHELIN NORTH AMERICA, INC., et al., Defendants.



         Before the Court are several motions for partial summary judgment, filed by the defendants (Doc. 82, 85, 87) and the plaintiffs (Doc. 109). The Court conducted a hearing on the motions. Thereafter, the Oklahoma Department of Environmental Quality (ODEQ) was permitted to file an amicus curiae brief (Doc. 122-1, 124), to which the parties have responded (Doc. 126, 127). Also after the hearing, the plaintiffs filed an unopposed motion to amend to add a claim under the Resource Conservation and Recovery Act (RCRA) (Doc. 125), which the Court granted.

         I. Background

         The plaintiffs in this action allege environmental contamination from toxins, including benzene, white gas, naptha, nickel, selenium, cyanide, carbon black, beryllium, mercury, tolene, lead, chromium, cadmium, asbestos, and polychlorinated biphenyl laden oil, which were allegedly released as a result of defendants' conduct, attempted containment, and remediation at the former tire manufacturing plant operated by B.F. Goodrich between 1945 and 1986 in Miami, Oklahoma. According to the plaintiffs, the toxins were deposited, stored, and/or discharged onto plant property, into a surface impoundment or lagoon, and in leaking underground storage tanks, and the toxins migrated onto plaintiffs' real property or into their neighborhood south of the site of the plant.

         Plaintiffs allege that they and their real properties “have been and continue to be contaminated with the deadly and dangerous toxins.” (Doc. 55 at ¶ 2). Plaintiffs assert claims for nuisance, trespass, strict liability for ultra-hazardous activities, and unjust enrichment. As noted, plaintiffs have been permitted to amend to add claims under RCRA. Plaintiffs Dennis Taylor, Sean McDonald, Tika McDonald, and Niesha Fields seek to certify a medical monitoring class of Oklahoma citizens who reside or resided on certain defined real property within the City of Miami, bounded by specific street descriptions and called “Miami Heights, ” on the basis that the area has been significantly impacted by the release of benzene and other toxins. (Id. at ¶¶ 94-97). Although the action “does not seek damages for personal injuries, ” the putative class representatives “seek medical monitoring class damages, ” and all plaintiffs “seek recovery of real property damages.” (Id. at ¶ 97). Plaintiffs also seek “equitable relief in the form of proper and permanent abatement and/or remediation of contaminated properties in Miami, Oklahoma” and injunctive relief requiring defendants “to remediate all contaminated properties.” (Id. at ¶¶ 113, 145(g)).

         The former Goodrich manufacturing plant was the subject of a 1995 lawsuit by the ODEQ in Ottawa County, Oklahoma. In that suit, the ODEQ asserted public nuisance claims, among others. (See Doc. 83-1). The ODEQ and defendant Michelin North America, Inc. (Michelin) entered into a Consent Order for Remediation on October 10, 1997, under which Michelin agreed to remediate the site of the former manufacturing plant. (Doc. 109-1). The Consent Order will terminate when the ODEQ notifies Michelin in writing that “the Work [required by the Consent Order] is complete.” (Id. at ¶ 23). The parties to the Ottawa County lawsuit subsequently entered into a Settlement Agreement on March 25, 1998. (Doc. 83-2). Under the Settlement Agreement, the defendants were obligated to remove certain contaminants from the property on which the plant was located. (See Id. at 1). The Settlement Agreement also required the defendants to pay $170, 000 to the State of Oklahoma and $5, 000 to the City of Miami and provided that the parties would thereafter dismiss the lawsuit upon stipulations. (Id. at 2).

         Following entry into the Settlement Agreement, facility sampling and analysis reports were completed in 2000, 2002, and 2003 (Doc. 83-4, 83-5, 83-6, 83-7). The defendants assert that they have continued to submit bi-annual monitoring reports regarding the groundwater plume under the plant site and residential area. (Doc. 82 at 6-7, ¶ 15). Following the plaintiffs' filing of this lawsuit in March of 2014, the defendants contend that they have continued to coordinate with ODEQ in ongoing remediation efforts. (See Doc. 83-8 [dated September 26, 2014]; 83-9 [dated April 17, 2015], and 83-10 [dated September 29, 2016]). ODEQ and the defendants have asserted that remediation efforts have been ongoing since 1997, and that the ODEQ has primary jurisdiction over plaintiffs' claims for equitable relief in this action. (See ODEQ amicus brief, Doc. 122-1; see also Doc. 121 at 6, ll. 2-4; Doc. 83). The plaintiffs have presented evidence, consisting of an expert's affidavit and a report relating to what plaintiffs allege to be continuing contamination of their properties and contamination beyond that previously acknowledged by the defendants. (See Doc. 94 at 11 et seq.).

         II. Summary Judgment Standards

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for a nonmoving party.” Anderson, 477 U.S. at 248. The courts thus determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. A non-movant's evidence is taken as true, with all justifiable and reasonable inferences drawn in the non-movant's favor. Id. at 255.

         III. Discussion

         A. Defendants' Motions

         1. Remedy of Injunctive Relief

         Defendants argue that the Court should grant summary judgment on plaintiffs' request for injunctive relief. According to the defendants, the ODEQ maintains primary jurisdiction over remediation or removal of contaminated groundwater migration, and ODEQ has been actively overseeing remediation at the site since 1997 when Michelin and the ODEQ entered into a Consent Order.

         Plaintiffs respond that the Court should not rely upon the primary jurisdiction doctrine, based on plaintiffs' allegations the area has not been remediated as required, the contamination is continuing, the defendants misrepresented sampling results showing contaminants, and the area of contamination exceeds the boundaries of the remediation area. In addition, the plaintiffs note that the ODEQ and the Settlement Agreement are targeted only at the property / site on which the former manufacturing plant was located, rather than the plaintiffs' properties, in particular. The plaintiffs also point to their Third Amended Complaint, which they argue includes “serious unaddressed RCRA violations” that the ODEQ and defendants have not addressed. (See Doc. 127 at 4-7).

         The primary jurisdiction doctrine permits a district court to refer a matter to the pertinent regulatory agency to allow the agency to make an initial determination. Williams Pipe Line Co. v. Empire Gas Co., 76 F.3d 1491, 1494, 1496 (10th Cir. 1996). When a claim “is originally cognizable in the courts, [primary jurisdiction] comes into play whenever enforcement of the claim requires resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 64 (1956). “The purposes of the doctrine are to: (1) ensure desirable uniformity in determinations of certain administrative questions; and (2) promote resort to agency experience and expertise where the court is presented with a question outside its conventional experience.” Williams, 76 F.3d at 1496. When the doctrine applies, “the judicial process is suspended pending referral of such issues to the administrative body for its views.” Id. at 1497 (quoting Western Pac., 352 U.S. at 64).

         The parties agree that the Court may consider five factors commonly suggested in the case law regarding primary jurisdiction. Those non-exclusive factors are: “(1) whether the court is being called upon to consider factual issues outside the conventional experience of judges; (2) whether defendant could be subject to conflicting orders; (3) whether agency proceedings have already begun; (4) whether the agency has shown diligence in resolving the issue; and (5) the type of relief requested.” B.H. v. Gold Fields Mining Corp., 506 F.Supp.2d 792, 803 (N.D. Okla. 2007); see Doc. 82 at 9; Doc. 121 at 13-14 (discussing the factors).

         The defendants argue that all of the factors favor primary jurisdiction in the ODEQ. With respect to the first factor, the ODEQ has more experience with respect to specific pollution remediation efforts than is the conventional experience of judges. The second factor - whether the defendants would be subject to conflicting orders - would also tend to weigh in favor of primary jurisdiction. However, there is currently no pending motion for preliminary injunctive relief, and the plaintiffs have merely included injunctive relief/abatement as one of the remedies they will ultimately seek following a determination of their claims on the merits. (See Doc. 55 at ΒΆΒΆ 113, 124, 145(g)). As a result, until the Court is presented with a request to enter injunctive relief prior to the conclusion of the case, the defendants are not, and will not be, subjected to any potentially conflicting orders. With respect to the ...

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