Premier Associates, Inc. v. EXL Polymers, Inc. ( 2013 )

Case: 12-10325 Date Filed: 02/05/2013 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
___________________________
No. 12-10325
____________________________
D.C. Docket No. 1:08-cv-03490-SCJ
PREMIER ASSOCIATES, INC.,
Plaintiff-Counter
Defendant-Appellant,
versus
EXL POLYMERS, INC.,
f,k,a, Nycore Inc.,
NY-CORE, INC.,
a Georgia Corporation,
SHAW INDUSTRIES GROUP, INC.,
a Georgia Corporation,
Defendants-Counter
Claimants-Appellees.
____________________________
Appeal from the United States District Court
for the Northern District of Georgia
_____________________________
(February 5, 2013)
Case: 12-10325 Date Filed: 02/05/2013 Page: 2 of 9
Before JORDAN and KRAVITCH, Circuit Judges, and ALBRITTON,* District
Judge.
ALBRITTON, District Judge:
We have had the benefit of oral argument, and have carefully studied the
briefs and relevant parts of the record. We conclude that the judgment of the
district court should be affirmed.
Because the relevant facts were set forth in the district court’s Opinion and
Order, and discussed fully at oral argument, we need not repeat them all here, but
merely summarize those facts.
Appellant Premier Associates, Inc. (“Premier”) is a real estate holding
company which owns property at 25 Mendel Drive in Atlanta, Georgia (“the
Mendel site”). In April 2006, Premier entered into a seven-year lease agreement
with Nycore, Inc. (“Nycore”).1 Nycore leased the Mendel site for the purpose of
manufacturing building materials from recycled carpet waste, known as carpet
selvedge.
Appellee Shaw Industries Group, Inc. (“Shaw”) is a carpet manufacturer in
*
Honorable W. Harold Albritton, United States District Judge for the Middle District of
Alabama, sitting by designation.
1
Default Judgment was entered against Defendant EXL Polymers, Inc. f/k/a Nycore, Inc.
and Ny-Core, Inc. on January 3, 2012.
2
Case: 12-10325 Date Filed: 02/05/2013 Page: 3 of 9
Dalton, Georgia. In May 2006, Shaw began shipping carpet selvedge to Nycore at
the Mendel site for recycling. Shaw had previously shipped carpet selvedge to a
predecessor company of Nycore in Minnesota. The carpet selvedge was
processed into other products at the Minnesota facility. The carpet selvedge at the
Mendel site ultimately was not recycled but instead was stored on site. Shaw
stopped shipment of the carpet selvedge when it discovered that the material was
not being recycled.
Premier sought to hold Shaw and other defendants liable for property losses
at the Mendel site under the federal Resource Conservation and Recovery Act
(“RCRA”) and related Georgia state law. The district court granted Shaw’s
motion for summary judgment and denied Premier’s. Premier appeals from those
rulings.
We review a district court's grant or denial of a motion for summary
judgment de novo. Harris v. Bd. of Educ. of Atlanta, 105 F.3d 591, 595 (11th Cir.
1997). We review all inferences reasonably drawn from the evidence in a light
most favorable to the nonmovant. Perry v. Sec'y Fla. Dep’t of Corr., 664 F.3d
1359, 1363 (11th Cir. 2011).
“The RCRA is a comprehensive environmental statute that establishes a
cradle-to-grave system for regulating the disposal of solid and hazardous waste.”
3
Case: 12-10325 Date Filed: 02/05/2013 Page: 4 of 9
Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1010 (11th Cir. 2004). The
RCRA allows approved states to implement and enforce its provisions. 42 U.S.C.
§ 6926(b). In 1979, Georgia received approval and enacted the Hazardous Waste
Management Act (“HWMA”), Ga. Code Ann. §§ 12-8-60 through 12-8-83, and
the Comprehensive Solid Waste Management Act (“SWMA”), Ga. Code Ann. §§
12-8-20 through 12-8-59.2, to regulate solid and hazardous waste. Parker, 386
F.3d at 1010. The definition of solid waste under Georgia law is as follows:
"Solid waste" means any garbage or refuse; sludge from a
waste-water treatment plant, water supply treatment plant, or air
pollution control facility; and other discarded material including
solid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations and
community activities, but does not include recovered materials . . . .
Ga. Code Ann. § 12-8-22 (33). As indicated, “recovered materials” are excluded
from the definition of “solid waste” under Georgia law. Ga. Code Ann. § 12-8-22(33); see also Parker, 386 F.3d at 1011. "Recovered materials" means those
materials which have known use, reuse, or recycling potential; can be feasibly
used, reused, or recycled; and have been diverted or removed from the solid waste
stream for sale, use, reuse, or recycling, whether or not requiring subsequent
separation and processing. Ga. Code Ann. § 12-8-22(25). “Recovered materials”
is a term further defined to exclude materials accumulated speculatively. Ga.
4
Case: 12-10325 Date Filed: 02/05/2013 Page: 5 of 9
Comp. R. & Regs. 391-3-4-.04(7)(b). To prove that a recovered material is not
accumulated speculatively, “the person accumulating it can show that there is a
known use, reuse, or recycling potential for the material, that the material can be
feasibly sold, used, reused, or recycled and that during the preceding 90 days the
amount of material that is recycled, sold, used, or reused equals at least 60 percent
by weight or volume of the material received during that 90-day period and 60
percent by weight or volume of all material previously received and not recycled,
sold, used, or reused and carried forward into that 90-day period.” Ga. Comp. R.
& Regs. 391–3–4–.04(7)(c).
Premier contends that under Georgia law, the carpet selvedge in this case is
not a recovered material because it does not have a known use, reuse, or recycling
potential; could not be feasibly used, reused, or recycled; and was not diverted or
removed from the stream of solid waste. Premier also contends that even if the
carpet selvedge was properly characterized as a recovered material at some point,
Shaw has failed to prove that it was not accumulated speculatively.
With respect to the known use, reuse, or recycling potential of carpet
selvedge, there is undisputed expert deposition testimony of Charles MacPherson
that carpet selvedge can be processed into other products such as boards, park
benches, and fiber linings for coats. Premier contends, however, that Shaw’s
5
Case: 12-10325 Date Filed: 02/05/2013 Page: 6 of 9
carpet selvedge could not be feasibly used, reused, or recycled because the only
feasible outcome for Shaw’s carpet waste was that it would remain on Premier’s
property to deteriorate.
Premier points to facts that there was never any manufacturing equipment at
the Mendel site, that carpet selvedge was not processed there, that Shaw did not
know if Nycore manufactured at the site, and that Shaw believed Nycore was
temporarily storing carpet at the site. Premier contends that if those facts were
viewed in a light most favorable to it, the carpet selvedge recycling was not
feasible at the Mendel site.
The record evidence establishes that Shaw began shipping carpet selvedge
to Nycore’s predecessor in Minnesota in 2001. The record evidence also
indicates that representatives from Shaw visited the Minnesota facility in June of
2002 to tour the facility, and that extruders were being used to process carpet
selvedge. Therefore, the undisputed facts show that at the time Shaw began
shipping carpet selvedge to the Mendel facility, it and Nycore had a business
association pursuant to which carpet selvedge was being processed at a Minnesota
recycling facility. The shipments of carpet selvedge to the Mendel site were made
for recycling of Shaw’s carpet selvedge at that facility. Furthermore, there is
affirmative evidence in the record, as to which Premier fails to create a genuine
6
Case: 12-10325 Date Filed: 02/05/2013 Page: 7 of 9
issue of fact, that Shaw stopped its shipments once it learned that the carpet
selvedge was not being recycled by Nycore at the Mendel site. Therefore, there is
no genuine dispute of fact so as to preclude summary judgment, and the carpet
selvedge in this case had a known use, resuse, or recycling potential and could be
feasibly used, reused, or recycled.
As stated earlier, Premier also argues that Shaw has not shown that the
carpet selvedge was diverted or removed from the solid waste stream, because the
carpet selvedge was not recycled and was not sold. Under the plain language of
the statute, however, the carpet selvedge was “diverted or removed from the solid
waste stream for sale, use, reuse, or recycling,” Ga. Code Ann. § 12-8-22(25),
because the undisputed record evidence is that the carpet selvedge was taken to
the Mendel site for recycling instead of being taken to a landfill. The fact that
selvedge was not recycled does not prevent it from qualifying as a recovered
material.
Premier further contends that, even if the carpet selvedge is “recovered
material” within the meaning of Georgia law, it was accumulated speculatively
because Shaw cannot demonstrate that 60 percent of the material received was
recycled, as required by Georgia law. See Ga. Comp. R. & Regs. 391-3-4-
.04(7)(b).
7
Case: 12-10325 Date Filed: 02/05/2013 Page: 8 of 9
Under Georgia regulations, if materials that would otherwise qualify as
“recovered materials” are “accumulated speculatively,” those materials are
considered solid waste. Parker, 386 F.3d at 1010-12. To show that recovered
material is not accumulated speculatively,” the “person accumulating it” can make
the showing that 60 percent of the “material received” is recycled. Ga. Comp. R.
& Regs. 391-3-4-.04(7)(c). In this case, the undisputed record evidence reflects
that Nycore, not Shaw, was the “person accumulating” the carpet selvedge, and the
party who “received” the material, so that Nycore is the party to whom the
regulatory speculative accumulation provisions are directed, not Shaw. In other
words, Shaw was not accumulating the selvedge, so does not have a statutory duty
to prove that the selvedge was not accumulated speculatively.
We conclude that the carpet selvedge provided by Shaw is a recovered
material, and was not solid waste under the RCRA.
The conclusion that, under the facts of this case, the carpet selvedge in
question is not solid waste also defeats Premier’s imminent and substantial
endangerment claim under 42 U.S.C. § 6972(a)(1)(B). The statute requires a
showing of three elements: that the defendant (1) is a person, (2) who contributed
or is contributing to solid waste handling, storage, treatment, transportation, or
disposal, and (3) the waste may present an imminent and substantial endangerment
8
Case: 12-10325 Date Filed: 02/05/2013 Page: 9 of 9
to health or the environment. Parker, 386 F.3d at 1014. In this case, as stated,
the second element has not been established. Id. (applying analysis of “solid
waste” as defined by Georgia law to 42 U.S.C. § 6972(a)(1)(B) claim).
Similarly, the grant of summary judgment on the negligence, negligence per
se, and nuisance state law claims was proper, there being no showing of a basis for
a duty outside of the provisions of the RCRA and Georgia statutory and regulatory
law relied on by Premier, which were not violated in this case. Furthermore, to the
extent the nuisance claim was based on something other than a duty, the district
court correctly rejected the contention that Shaw had improperly disposed of the
waste.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
9