Document pmkV8Mx3vNqe2MQ5bJXyVZKMk

JOHN L. THORNDAL LELANO EUGENE BACKUS A. WILLIAM MAUPJN JAMES G. ARMSTRONG CRAIG R. D E L* PEGGY A. LEEN PAUL F. EISINGER NANCY M. SOMERS BRIAN K. TERRY ERIC R. OLSEN L-J Received SEP 25 LAW OFFICES THORNDAL, BACKUS, M AUPIN & ARMSTRONG A PROFESSIONAL CORPORATION POST OFFICE DRAWER 2 0 7 0 1 1OO EAST BR1DGER AVENUE LAS VEGAS. NEVADA 891 2 5 -2 0 7 0 (70 2 ) 3 6 6 -0 6 2 2 FAX (70 2 ) 3 6 6 -0 3 2 7 ] RENO OFFICE: STEPHEN C. BALKENSUSH CHARLESLBURCHAM JEFFREY D. MORRISON September 22, 1989 The Honorable Lloyd D. George United States District Judge Foley Federal Building 300 Las Vegas Blvd. South Las Vegas, NV 89101 HE: Nevada Power Company vs. Monsanto Company, et al. No. CV-S-89-555-LDG-- (LRL) Dear Judge George: Following receipt of this court's order for scheduling and planning entered August 25, 1989, and minutes of the court (#13) dated September 1, 1989,. counsel for the defendants met and con ferred in an effort to provide the*court with a proposed plan for the management and initial scheduling of this action. The fol lowing proposal represents the defendants' joint proposal to the court. Plaintiff Nevada Power seeks to recover certain costs alleg edly incurred to comply with regulations applicable to exchange of electrical equipment containing polychlorinated biphenyls (PCBs). Allegedly, that equipment was manufactured by General Electric and/or Yiestinghouse and the PCBs were manufactured by Monsanto. From the defendants' records, the equipment in question was purchased by Nevada Power no later than 1978. On July 14, 1989, the Sixth Circuit Court of Appeals in Electric Power Board of Chattanooga v , Monsanto, 879 F.2d 1368 (6th Cir. 1989),'dismissed similar claims oh the basis of the statute of limitations. Therein, the court held that the utilities had knowledge of the public dialogue concerning PCBs in electrical equipment due to the utilities' participation in public rulemaking procedures and.proposed restrictions of PCBs by the EPA during the 1970s and early 1980s. Accordingly, the statute of limitations/repose began to run years before 1985 The Honorable Lloyd D. George United States District Judge RE: Nevada Power Company vs. Monsanto Company, et al. No. CV-S-89-555-LDG-(LRL) September 22, 1989 Page 2 when the Complaint was filed and the claims were barred. This decision provides persuasive authority and an excellent model for application to the case at bar. For the convenience of the court, a copy of that decision is enclosed. It is the recommendation of the defendants that initial dis covery be conducted on an expedited basis'limited in scope to statute of limitations/repose related issues. The defendants believe such limited discovery could be completed in less than 60 days, and the issues briefed shortly thereafter. With this in mind, the schedule attached is respectfully submitted to the court for its consideration in issuing a scheduling order. It is respectfully submitted that the defendants' proposal is a desirable and appropriate approach which will conserve the resources of the'court as well as the litigants and facilitate an early resolution of this case. 1100 East Bridger Avenue Las Vegas, NV 89125 Attorneys for Westinghouse Attorneys for Monsanto and General Electric Co. PAL/JBA/JLT/ds/ad Enc. cc: Charles H. McCrea, Esq. w/enc. DEFEND AN TS' PROPOSED L IM IT E D DISCOVERY AND B R IE F IN G SCHEDULE 10/6/89 10/6/89 10/10/89 10/13/89 10/16 to 10/20/89 11/1/89 11/13 to 12/8/89 11/17/89 Plaintiff to completely respond to outstand ing discovery requests.^ Plaintiff to propound all written discovery to defendants limited to statute of limitations/repose related issues. Defendants to notice depositions for week of 10/16 to 10/20. ' Proposed status check before Magistrate. Defendants to take depositions limited in scope to statute of limitations/repose related issues. Defendants to notice depositions for period of 11/13 to 12/8. Defendants to complete depositions. Defendants to completely respond to plain tiff's discovery requests limited in scope to statute of limitations/repose related issues. 12/18/89 1/15/90 1/30/90 2/5 to 2/9/90 Defendants to file summary judgment motions. Plaintiff to file response to motions. Defendants to file reply briefs. Proposed hearing on defendants' motions. (Defendants would request a stay of all other proceedings pending a decision by the court on these case dispositive motions.) 1/ The defendants propounded interrogatories and requests for production of documents shortly after answering the complaint. Nevada Power's discovery responses are due as follows: responses to GE are due responses to Westinghouse are due responses to Monsanto are due 9/26/89 9/26/89 9/29/89 Responses to GE were originally due 9/19 and responses to Westinghouse were originally due 9/5; extensions have been requested and granted as to each. 1368 879 FEDERAL REPORTER, 2d SERIES however, the Parkers have continuously postponed the process7 and failed to coop ELECTRIC POWER BOARD OF CHATj| erate. The Parkers even rejected a lenient TANOOGA, a Board of the City. plan recommended by the Bank that would Chattanooga^ a Municipal C orporation^ have allowed them to keep their home, their son's residence, 70 acres 'and would have reduced their debt to $85,000.00. The Parkers, have remained in default since 1985 and have made only one attempt to Huntsville Electric Utilities Board, Board of the City of Huntsville, Ala^j bama, a Municipal Corporation, P la in t tiffs-Appellants, - v. reduce the principal of the loan.8 The cur- ' MONSANTO CO.; General Electric Co! rent debt now exceeds the value of the collateral. In light of these facts, we find that the district court did not abuse its discretion by' denying the request for a preliminary injunction and properly dis solved the temporary-restraining-order al Central Moloney, Inc.; Wagner Electric^ Corp.; Westinjghouse Electric Corp!j| Sangamo Electric Corp.; M cG raw -Edli^ son Co.; Allis-Chalmers Corp., D e fe n d dants-Appell ees. . No. 88-5372. . lowing the Bank to proceed with- fore United States Cburt of Appeals, closure. Sixth Circuit Accordingly, for ail the foregoing rea Argued March. 28, 1989. sons, the order of the Honorable James H. Decided July 14, 1989. Jarvis, United States. District Court, E ast ern District of Tennessee, denying the re quest for a preliminary injunctionand dis solving the temporary restraining order is Rehearing Denied Aug. 17, 1989. `v2f3i9t3i r _ -M i Public utilities brought action agai^B] mahufacturers-sellers of electrical equ; AFFIRMED.' ment that contained polychlorinated bipKel nyls for restitution, nuisance, 'negligence^ fraud and misrepresentation, strict h'abihiy^ implied warranty, and express warranfei The United States District Court forVffi Eastern District of Tennessee, T1 Gray Hull, Chief Judge, dismissed-.?t claims, and utilities appealed. The Com of Appeals, Boggs, Circuit Judge, th a t (1) Tennessee statute of limitations for actions for injuries to real or p e rso n a i^ property, rather than statute of b`mitatioi&jp. 17- for actions not expressly provided for, apip? U v plied to actions in negligence, strict liabffi-^ ty, fraud, misrepresentation, restitution^? and nuisance; (2) claims were untimely un:ii f der Tennessee limitations statute based"? upon time that record established utilities-.'; had actual knowledge of.-hazards. of PCBs..- as used in -electrical equipment; -and (3).? even if the Comprehensive Environmental a, * Response, Compensation, and Liability. Ac|p 7. The Parkers successfully delayed foreclosure private sale of 640 acres of ihcir property. The?7; from May, 1987 until February 1988 by attempt proceeds of that sale were used to pay off othcrSi I: %. ing to file for bankruptcy. 8. At the direction of the United States Bankrupt creditors and a small portion was applied to the?? loan in question. " -,? ,, V* cy Court, the Parkers voluntarily conducted a - - ^ " ECTRIC POWER BD. OF CHATTANOC- * v. MONSANTO CO. 1369 Cite u 879 F J d 168 (6th Clr. 1989) were applicable, suit was untimely under 7. Nuisance =>46 CERCLA limitations provision. Public utilities' nuisance claim against Affirmed. manufacturers-sellers of electrical equip ment was governed by Tennessee statute 1. Action =17 requiring that actions for injuries to real or personal property be commenced within In deciding what law applies to particu three years of date on which action ac %y lar case, one must first look to forum, crues; rather than by statute providing ten- . state's choice of law statute. year period of limitations for actions not' is" 2. Limitation of Actions =2(1) expressly provided for; nuisance law came P Generally, procedural law of forum under broad umbrella of injury to property. state applies, including its statutes of limi T.G-A. 28-3-105, 28-3-110. f tations. s3. Limitation of Actions <=>2(3) 8. Limitation of Actions =47(1), 49(7) Any claim by public utilities for breach iS Statutes of limitations were procedural of warranty regarding electrical equipment t'Si. IJ rules, and Tennessee law thus applied to' purchased more than four years prior to claims-brought by both Tennessee and Ala suit was- barred "under Tennessee law, bama plaintiffs for restitution, nuisance, which provides four-year statute of limita negligence, fraud and .misrepresentation, tions. for. breach of warranty actions and strict liability, implied warranty, and ex defines claim to accrue when tender of press warranty in Tennessee federal court delivery is made, regardless of lack of 4. Limitation of Actions =16 - In Tennessee, appropriate statute knowledge of breach of warranty. of - 47-2-725. - T.C.A. limitations is determined by type of injuries 9. Limitation of Actions =95(4, 9), claimed and damages- sought 100(12) 5. Fraud =38 ' Public utilities' claims against manu Limitation of Actions =32(1) ` facturers-sellers of electrical equipment for Tennessee statute requiring actions for restitution, nuisance, negligence, fraud and ^injuries to real or personal property to be misrepresentation, and strict liability ac commenced within three years of date on crued at the latest when utilities had actual which action accrues would apply to actions knowledge of the hazards of polychlorinat in negligence, strict liability, fraud and mis ed biphenyls as used in electrical equip representation as they affected real proper; ment, based on EPA's publication of notice ty of plaintiff public utilities. T.C.A. in Federal Register specifically requesting ? 28-3-105. information on incidence and hazards of PCB leaks from electrical equipment from 6. Limitation of Actions <3=*28C1) * utility companies when utilities admitted & Restitution claim asserted by public they closely monitored all EPA proceedings utilities against manufacturers-sellers of relating to PCBs, for purposes of applica electrical equipment was governed by Ten ble Tennessee statute of limitations. T.C. nessee statute requiring actions for injuries A. 28-3-105. to- real. or personal property to be com menced within three years of date on which, 10. Limitation of Actions =104(1) action accrues, rather than Tennessee stat ' Fraudulent concealment was not avail ute providing ten year period of limitations able tojtoll Tennessee statute of limitations for actions not expressly provided for; res regarding tort actions brought by public titution was theory of recovery, rather than utilities against manufacturers-sellers of substantive cause of action in itself, and electrical equipment that contained poly ~ne restitution claim sought restoration of chlorinated biphenyls even if manufactur property rights protected by tort law. T.C. ers-sellers took affirmative action to con A. 28-3-105, 28-3-110. ceal hazards of PCBs in their use in electri- K*0 879 FEDERAL REPORT 2d SEKIES cal equipment, where utilities . knew or D. Lewis Mattson, Gentry & Boet should have known of hazards of PCBs in Chattanooga,- Tenn., Robert 0. King,^*^ electrical equipment for longer than the Gary Geddie, Jr., Ogletree, Deakins, N asH ^|g#`'| limitations period before suit was filed. Smoak & Stewart, Greenville, S.C., for 11. Health and Environment =26.15(5) gamo Elec. Corp. i Even if the Comprehensive Environ Before ENGEL, Chief Judge, mental Response Compensation Liability BOGGS, Circuit Judge, and COHN, Act were applicable to ^public utilities' District Judge.' - _ .. claims against manufacturere-sellers of ! 'j electrical equipment that contained poly BOGGS, Circuit Judge. I chlorinated biphenyls for restitution, nui sance, negligence, fraud and misrepresen tation, and strict liability, public utilities' claims accrued at the latest when record established that utilities had actual knowl edge of hazards of PCBs as used in electri cal equipment, and claims were untimely under CERCLA limitations provision. .Comprehensive Environmental Response, Compensation, and Liability" Act -of-1980, 309, as amended, 42 U.S.C.A. 9658/ This is an appeal by the Electric Power'll:: Board of Chattanooga (EPBC) and H u n ^ f e t' ville Electric Utilities Board (HEUB) frou^^.-' - dismissal *of their claims against, ' dants, Monsanto Co. (Monsanto), and (&n-|p|cl eral Electric Co., Central Moloney, Wagner Electric`Corp., Westinghouse trie Corp., Sangamo Electric Corp., an& plf McGraw-Edison Co. (equipment d e fe n ^ ^ | dants). Allis-Chalmers Corp. was a ^ ^ ^ / named as a defendant, but A llis-C h a lm e r^ ^ i \ \ : - ! : has filed for bankruptcy and all action'K ' Carlos C."Smith (argue'd), Edward D. against it baVe b*- e- en'severedJ a_ ndJ stayed&p^v Meyer, Frederick L. Hitchcock, Strang, The district court dismissed all claims, Fletcher, Carriger, Walker, Hodge & ing that they were barred by e i t h e r - |S ^ ^ | Smith, Chattanooga, Tenn., for The City of statute of repose or the tort and c o n t r p ^ ^ p ' Chattanooga. statutes of limitations, and that fe d e ra l^ ra ^ ^ i J. Bruce Schrimsher, Morring, Schrimsh- Yironmental statutory provisions d i d /^ t `i ^ |- - er & Riley, Huntsville, Ala., for Huntsville save the claims from being time Elec. Utilities Bd. We affirm' on the grounds of the s ta tu f^ ^ sK George M. Derryberry, -Miller & Martin, . of mutations. --oaSraff4 Chattanooga, Tenn., for Monsanto Co. Silas Williams, Jr., Spears, Moore, Reb- man & Williams, Chattanooga, Tenn., for This suit.was brought to recover Allis-Chalmers Corp. . ages for injuries from the presence of Paul R. Leitner, William E. Godbold, III, Leitner, Warner, Moffitt, Williams, Chatta nooga, Tenn., for General Elec. Co. chlorinated biphenyls (PCBs) in certain* EPBC's and HEUB's electrical tranformers : (devices which convert variations of electrh.'U. cal current in one circuit into the variations Paul R. Leitner, Chattanooga, Tenn., for and voltage of another), capacitors (devices McGraw-Edison Co., Cent Moloney, Inc., which store and stabilize electrical output), Wagner Elec. Corp. voltage regulators (specialized transform James W.* Gentry, Jr., Gentry & Boehm,- ers which allow for more precise regulation Chattanooga, Tenn., Richard A.' Rothman, *-of electrical currents than ordinary trans- . Jeffrey S. Klein, Weil, Gotshal & Manges, formers), and other electrical equipment'..,:- - New York City, James F. Neal (argued), manufactured by the equipment defen-^ ` Thomas Dundon, Neal & Harwell, Nash dants. The equipment defendants are cor/ ' ville, ^enn., for Westinghouse Elec. Corp. porations that manufactured and sold the. *The Honorable Avem Cohn. United States Dis trict Judge for the Eastern Distria of Michigan, sitting by designation. .* ELECTRIC POWER BD. OF CHATTANC A v. MONSANTO CO. ' 1371 Cite u 879 F-2d 1368 (6th Ctr. 1989) electrical equipment containing PCBs. brief the question of whether the statute of Monsanto produced the PCBs ultimately repose, as a matter of law, would preclude incorporated into the electrical equipment any cause of action, or part of any cause of manufactured by the equipment defen action, stated by the plaintiffs in their com dants. PCBs are chemical compounds plaint. After reviewing the briefs, the trial which, for safety reasons, have long been court ruled that the Tennessee statute of used as a cooling fluid in electrical equip repose barred any part of the EPBC's ment, and which have been regulated by claims arising under Tennessee law, relat the Environmental" Protection Agency ing to equipment manufactured by the de- (EPA) for more than ten years. fendants .and purchased by the plaintiffs This action involves two principal classes more than 10 years prior to the date the of electrical equipment, each of which action was filed. The Tennessee statute presents somewhat distinct issues. First, was not applied to HEUB because it is an EPBC and HEUB seek recovery for dam out-of-state plaintiff. This decision was la ages from injuries suffered in connection ter amended to provide that the Tennessee with equipment containing PCBs, produced statute of repose would not bar any of the by the* equipment defendants; which" was plaintiffs' claims'to The Extent- that those designed and intended to include PCBs. This equipment contains PCBs by design and uniformly contains more 'than 500 parts per million (ppm) of PCBs; this equipment will be termed "PCB equip ment.*' In addition, EPBC and HEUB pur chased other equipment, not designed to contain PCBs, but which does contain 50499 ppm of PCBs as a result of'contamina tion during the course of the manufactur ing process. This equipment will be termed "contaminated equipment." With respect to each class of equipment, EPBC and HEUB sought to recover under theo ries of restitution, nuisance, negligence, claims fell within an amendment to" the Comprehensive Environmental Response Compensation Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et seq. That amend ment, codified at 42 U.S.C. 9658, in es sence provided that any state statute o flimitations for"an action seeking compensa- tion for property damage caused by expo sure to a hazardous substance would not commence running until any consequent injury was discovered, regardless of pre-ex isting state law. - The court then proceeded to consider nu merous motions for summary judgment fraud and misrepresentation, strict liability, submitted by the defendants. The court implied, warranty, and `express warranty. granted summary judgment to Sangamo on The two utilities seek to forcevthe defen all claims brought against it by EPBC be dants to replace some 35,000 pieces of cause they were barred by the statute of equipment The majority of the equipment repose', and the CERCLA amendment did was purchased more than 10 years before not apply because none of the claims arose this suit was filed; some' equipment is as from the release of PCBs into the environ much as fifty years old. All of the equip ment Subsequently, based on similar rea ment was purchased more than four years soning, the court dismissed all claims by prior to the commencement of this action. EPBC against any other defendant for At the outset of the litigation, defen equipment purchased more than 10 years dants asserted that most of the causes of prior to the filing of the action. _The court action were barred by .the Tennessee stat further held that Tennessee's statute of ute of repose arid other statutes of limita repose did not apply to HEUB, an Alabama tions. Tenn.Code Ann. 29-28-103, et seq. entity. The court clarified and amplified The trial court ordered that the statutes of this order on April 30,1987, explaining that limitations issue be briefed. However, af t)je case would proceed as a product liabili ter disagreements arose as & the proper ty action for breach of warranty with r e - . scope of discovery under that Order, the spect to equipment sold within four years trial judge directed that all discovery be of the date of the action, and as various stayed, and the parties were directed to tort actions regarding items that had i372 879 FEDERAL REPO ER, 2d SERIES caused damages to property within three concern over the environmental effects&f$3?v years of filing the suit The court added PCBs prompted hearings and the ultimate'^,: the proviso that, with respect to equipment passage of the Toxic Substances Control "v owned by EPBC, the equipment in question Act, CTSCA), 15 U.S.C. 2601 et s e q ^ ' ^ , must have been sold within 10 years of the 1976. TSCA required the EPA to establish',^;.- date of commencement of the action. The rules governing the disposal and labeling'eg!' court also held that the plaintiffs would not be permitted to show fraudulent conceal ment on the part of the defendants to toll any statute of limitations because the haz ards of PCBs have been a matter of public record since a t least 1976. Plaintiffs then were allowed to. amend their complaint to allege that they were seeking damages for injuries to property caused by the release of PCBs, consistent with the .language of- CERCLA.' The par ties "were ordered to brief the issue of the effect of this amendment, after which the_ court held that the amendment did not of trol tribution, as well as their disposal. s;T h ^ . statute prohibits the use of PCBs at.valj^.i after January 1, 1978, unless the EPA_au-^. thorized use in a "totally enclosed manner'!.^-'1upon a determination that use "will ^no^.^ present an unreasonable risk to injury t`bf.|i. health or the environment." On MayJBl,^;. 1979, the EPA published a fmal rule d^Jg:V^ nating all "intact, non-leaking capacitors'; ^ ! ' electromagnets, and. transformers, otHer^i?] than railroad transformers," as totaliy .en^j;, closed uses and permitting their contiriueS#&' bring the case under CERCLA, 42 U.S.C. 9601 et seg., holding that no leaks into In Environm ental Defense PuTu^rlnc.'^ ) the- environment causing property damage v. EPA, 636 _ ` - had occurred within the meaning of that' 1980), the District statute. ruled that there was insufficient evidence"^ in the administrative record to sup^ft% $ In a series of orders dated February 29, EPA's classification of transform ers,^-*-^ 1988, the court first granted summary pacitors, and electromagnets as totally.ehsY^ judgment on HEUB's claims against Cen closed uses. The court invalidated -th^tXp tral Moloney. No appeal has been taken portion of the May 1979 rule and remandgiiM^ from that decision. Second, the court sev it to the EPA for further action. ered the Allis-Chalmers claims and stayed Those further hearings resulted in a fm^:3 that severed action. Then, the court en rule published on August 25, 1982, tered an order severing those claims of the ing the May 1979 rule. This new: r u le ^ plaintiffs which had not been resolved by prohibited the continued use after October^ the prior orders of the court, and dismissed 1, 1985, of electrical transformers and those claims without prejudice. In addi tromagnets containing more than 500 ppnijii- tion, although apparently in contradiction, of PCBs in or near facilities involved m the 7? the court granted summary judgment and handling of food or feed items, and also.r- dismissed the remaining claims of both prohibited the continued use of capacitors*'^ plaintiffs. containing more than 500 ppm PCBs unless !- the capacitors were located in restricted II access electrical substations or in contained -The underlying facts are as follows. and restricted access indoor areas. The EPBC and HEUB are public utilities of the August 1982 rule authorized the continued cities' of Chattanooga, Tennessee and. use for the remainder of their, useful lives. Huntsville, Alabama, respectively. Each of all other categories of non-railroad elec- / operates on a non-profit basis, purchasing trical transformers, of capacitors located in *. electricity from the Tennessee Valley Au restricted access substations and indoor in' thority (TVA) under contract with the TVA. stallations, and of other electrical equip As stated above, PCBs are chemical cool ment containing less than 500 ppm PCBs. ants used in electrical equipment for safety A number, of the equipment defendants in purposes. In the early 1970s, Congress's this suit, as well as Monsanto, presented ' ELECTRIC POWER BD. OF CHATTAN JGA v. MONSANTO CO. 1373 * Cite u 879 FOd B68 (6th O r. 1989) information to the EPA supporting the con of because of their role as' manufacturers tinued use of equipment containing PCBs. and distributors. They further allege that On July 17, 1985, the EPA published the defendants, especially Monsanto, had another final rule placing further restric conducted tests and studies which showed tions on the continued use of transformers the toxic effects of PCBs on the health of containing more than 500 ppm of PCBs in humans, and that Monsanto knowingly and or near commercial buildings, prohibiting falsely represented their -safety to the such use after October 1, 1990, and prohib plaintiffs as early as 1971. .The plaintiffs iting further installations after October 1, ' "charge.that Monsanto misrepresented what 1985. This rule also requires the installa it knew to be hazardous as safe, and even tion of enhanced electrical protection on biodegradable. Allegedly, Monsanto ''con certain other transformers containing more spired" with a testing laboratory to present than 500 ppm PCBs by October 1, 1990. -falsified studies to the EPA. Comparable Again, a number of the equipment defen dants, as well as Monsanto, participated in the rulemaking process by submitting evi- ' dence .favoring, the use of. equipment'con taining PCBs. past conduct in connection with other chem icals resulted, in the indictment and convic tion of a number of Monsanto employees involved. United States v. Keplinger, 776 F,2d 618 (7th- Cir.1985). - V - 1 The utilities claim that it was the pas sage of the July 1985 rule:that caused them to become concerned over the safety of their continued use of equipment contain ing PCBs and ultimately led them to file this su it EPBC believes that the replace ment cost for the equipment containing PCBs exceeds ten million dollars; HEUB's estimated replacement cost is in excess of two million dollars. - A number of the defendants are mem bers of a trade association, -the National Electrical Manufacturers Association (NEMA). In 1970, General Electric recom mended to the NEMA Board of Directors that NEMA: create" a task force to study problems associated with the disposal of PCB-contaminated materials. The commit tee was composed of representatives of General Electric, McGraw-Edison, Sanga`mo, Westinghouse, and Central Moloney. On appeal, the utilities argue that the In 1970, the committee recommended that trial judge erred in ruling that they cannot NEMA join-with Monsanto in establishing show fraudulent concealment in an attempt an industry committee under, the auspices to toll the statutes of limitations because of the American National Standards Insti they would be charged with notice of the tute (ANSI) to study the use; maintenance, hazards of PCBs as of 1976. 'They claim and disposal of PCBs in electrical equip that the trial judge refused to recognize ment One of the purposes of the commit-' the distinction between the dangers of tee was to avoid "any governmental re PCBs free in the environment and their strictions [being] placed on the production dangers when contained in electrical equip-, of this material [PCBs]." As a result, the ment They further claim that, as a result, ANSI committee, designated C-107, was little discovery on this issue took place, but created and staffed by NEMA. The plain nevertheless, there was adequate evidence tiffs claim that the ANSI committee, as to create an issue of fact The plaintiffs well as NEMA, helped to conceal the dan- claim that they did not understand that the _gers of PCBs from regulatory authorities use of- PCBs in electrical equipment could -and" users, and provided a means" for the - pose a significant threat to human health submission of false and misleading infor- and the environment until the promulgation mation to the EPA. For example, in a of the July 1985 rule. Further, the utilities March 19, 1975 letter, Monsanto wrote to state that the defendants, individually and Westinghouse in response to questions re- collectively, had the resources to discover . garding the toxicity of PCBs. Monsanto the dangers of the use of PCBs in electrical stated that although "no human harm has equipment earlier, and that they had a duty resulted" in "over 40 years of experience" to discover and inform the plaintiffs there with PCBs, "[t]here is a potential real ef- m " i374 879 FEDERAL RERL. :ER, 2d SERIES feet to humans--including death." - How ings concerning PCBs on a regular b aab ,^p ever, NEMA, in its presentation to the EPA and have been aware of the dangers .of:??$' in connection with the August 1982 rule, PCBs since at least 1976. There is unrefut.: U stated that the continued use of electrical ed evidence in the record demonstrating-;^ equipment containing PCBs posed no that the utilities participated in the federal threat to human health or the environment. regulatory proceedings concerning PCBs in - The defendants argue, to the contrary, electrical equipment. For example, in Mayijf-1 that the alleged dangers of PCBs -in electri 1982, EPBC filed comments, through the^fv. cal equipment have been the subject of Utility Solid Waste Activities Group, w ith'-^ public hearings since 1971, as has the issue the EPA actively opposing any further re-^O of whether leakage of PCBs from equip strictions on the use of PCBs. In those. ment requires replacement The EPA re comments, EPBC acknowledged that PCBs peatedly has refused to require removal "pose a serious threat to humans." Again`;.> and replacement of all equipment contain during the period for public comment onV*: ing PCBs. Further, the utilities 'closely monitored the extensive congressional and agency proceedings, concerning PCBs and do not dispute -that they were* fully aware the proposed July 1985 rule, the EPBCv.',:, filed similar comments "strongly opOi* -pos[ing]" the proposed rule. *- of all of the resulting findings and determi nations. Despite the-claims of the utilities, __ III *the defendants' assert and document the \ public nature of . the hearings involved in On appeal, the utilities, EPBC arid;^. the course of enacting TSCA, the enabling HEUB, argue that they were not on-notide^. statute, as well as each EPA rule. For: of the hazards of PCBs until July 1985, andi^j example, in August 1971, Congress com that they should be allowed to attempt; to menced hearings on the need to regulate demonstrate the truth of their claim PCBs; these hearings culminated in the the defendants, including Monsanto and t l i e ^ passage of TSCA. In March 1972, an in equipment defendants, misled them 'vrith'.^ terdepartmental Task Force of the United States Government issued a comprehensive report which recognized that the primary use of PCBs was in electrical equipment and specifically addressed the alleged dan gers and risks associated with the use "of PCBs in such equipment Each EPA rule was preceded by at least one notice in the Federal. Register, supporting documents, press releases and public statements, pub lic meetings, reports and studies, all of which were available to the public through the EPA. In March 1980, based on reports submitted by utility industry representa tives that PCBs tend to "weep" or "sweat" respect to the effects of PCBs on the envi^j ronment and human health. This proof, the plaintiffs claim, would show that-tiJe^: statutes of limitations were tolled u n tile only a month before this suit was filed, August 1985. Further, the utilities claims# that they stated claims and should r1)e^ awarded damages in tort, nuisance, restini-^i* tion and all other theories raised in theiriJ;' complaint. They also claim that CERCLA /substitutes a discovery rule for all state statutes of limitations in these circumstahc- * es. The defendant manufacturers and dis tributors claim that the district court was from electrical equipment, the EPA pub correct in determining that the statute of lished a notice in the Federal Register spe repose bars all .claims, regarding equipment cifically requesting information on the inci purchased more -than ten years from the. dence and hazards of such leaks from all date of filing of this suit, and that other utility companies. There is no indication statutes of limitations bar the remaining ; that either EPBC or HEUB responded to claims on behalf of the utilities. There has this request. been no fraudulent concealment, CERCLA The defendants indicate, and the record does not apply, and tort and nuisance confirms, that the utilities reviewed and claims are barred by the statutes of repose monitored the public record and proceed and limitation. .: L"' ELECTRIC POWER BD. OF CHATTAN -GA v. MONSANTO CO. 1375 Cite u 879 F J d IMS (&h Clr. 1989) A tions, in effect, are tort actions for injury The standard of review of a summary judgment is that summary judgment is ap propriate when the moving party can show that "the pleadings, depositions, answers to interrogatories, and admissions on file, to gether with the affidavits, if any, show that there is no genuine, issue as to any material fact and that the moving-party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). to property, and so are subject to the three year statute of limitations. Tenn.Code Ann. 28-3-105. Black's Law Dictionary 1180 (5th ed.1979), defines "restitution" as the "[a]ct of restoring; restoration; .. . ; the act of making good or giving equiva lent for any loss, damage or injury---- " In other words, restitution is a theory of recovery, not a substantive cause of action in itself. The question is whether one is attempting to restore rights granted and [1,2] In deciding what law applies to a protected by a contract, or trying to vindi particular case, one must first look to the cate property rights, which are protected forum state's choice of law Btatute. Erie by tort law.- Here, it is clear that the R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. restitution that is sought is the restoration 817, 82 L.Ed. 1188 (1938); Day & Zimmer- of property rights protected by .various mann, Inc. v. Challoner, 423 U.S.- 3, 96 torts actions.- Thus, the three year statute S. Ct 167, 46 L.Ed.2d 3 (1975).' Generally, of limitations for torts applies. Tenn.Code the procedural law of the forum state ap _ Ann. 28-3-105. _ plies, including its statutes of limitations. Whitfield v. City o f Knoxville, 756 F.2d 455, 461 (6th Cir.1985). Thus, Tennessee law governs the statutes of limitations for all actions brought in this case. [7] As regards nuisance actions, Black's Law Dictionary 961 (5th ed. 1979), defines "nuisance" as "[t]hat which annoys and disturbs one In possession .of his prop erty, rendering its ordinary use or occupa B. tion physically uncomfortable to him." Thus, nuisance law comes under the broad [3-5] As stated above, statutes of limi; umbrella of "injury to property," which tations are procedural rules and thus the. also is covered by Tenn.Code Ann. statutes of limitations of the forum state-- 28-3-105, the three year-statute of limi- Tennessee--apply to the claims brought by tatidns. ' both the Tennessee and the Alabama plain tiffs. In Tennessee,'the appropriate stat ute of limitations is determined by the type of injuries claimed and the damages sought The gravamen' of most of the claims is injury to property. Actions for injuries to real or personal property must be commenced within three years of the date on which the action accrues. Tenn. Code Ann. 28-3-105. This would apply to actions in negligence, strict liability, fraud, and misrepresentation as they affect the real property of the utilities. - Finally, breach of warranty actions are covered by Tenn.Code Ann. 47-2-725, which provides for a four year statute of limitations. However, a claim accrues un der this statute "when the.breach occurs, regardless of the aggrieved party's lack of knowledge of the breach." Tenn.Code Ann. 47-2-725(2). . Therefore, because all of the equipment involved in this dispute is a t least four years old, all of the .plaintiffs' claims are time-barred by the various three and four year statutes of limitations. The only ex - [6] The plaintiffs claim that, the statute ception would be "if the plaintiffs can show:" of limitations for nuisance and restitution (1) that their claims accrued later than four is found in Tenn.Code Ann. 28-3-110. years ago; (2) that the statutes were tolled That statute provides that the period of by the fraudulent concealment" of the haz limitations for actions "not expressly pro ards by the defendants; or (3) that CERC- vided for" is ten (10) years. Ibid. How LA applies, and establishes a different stat ever, we agree with the district court's ute of limitations than those provided by conclusion that nuisance and restitution ac Tennessee law. 1376 879 FEDERAL RE] .TER, 2d SERIES . G limitations should have been tolled under Ordinarily, a claim accrues when the equitable principles. plaintiffs discover their injury or "through [9] As regards the first argument, the the exercise of reasonable care and dil trial judge found as fact that the utilities igence [it] should have been discovered." knew or should have known of the hazards McCroskey v. Bryant A ir Conditioning of PCBs by 1976 at the latest. We do not Co., 524 S.W,2d 487, 491 CTenn.1975). In find it necessary to specify the earliest date the instant case, the trial judge found that, on which we believe the utilities knew or 'a t the-very latest, the claims accrued in should have known of the hazards of PCBs 1976. However, the plaintiffs argue, first, in electrical equipment. It is sufficient to that the claims did not accrue until July conclude that the record shows with crys 1985; and second, that the statutes of limi tations were in any event tolled by thefraudulent concealment of the hazards by the various defendants. -The initial com-' talline clarity that the utilities had actual knowledge of the hazards of PCBs as used in electrical equipment more than three years before they filed this su it It is clear plaint in this action was filed on August 23, that the utilities participated in the.public 1985. Thus; unless the claims accrued af- rulemaking .procedures conducted by the ter 1981 in-the cas'e of the warranty claim,' EPA, and opposed restrictions on the use and 1982 in the case of the tort claims, of PCBs in their equipment consistently, those claims, are barred, as the trial ,court during-the 1970s and early 1980s. For found they were. example, the interdepartmental Task Force [8] As regards the warranty claim, the issued a March 1972 report which recog claim accrues "when tender of delivery is nized that the principal use of PGBs was in made" re'gardless of the lackrof knowledge electricar equipment, and addressed the of the breach. Tenn.Code Ann. possible hazards of such use. In March 47-2-725(2). Thus, if a breach of war 1980, based on reports submitted by utility ranty occurred at all, it occurred when the industry representatives that PCBs tended equipment was sold. Clark v. DeLaval to "weep" or "sweat" from electrical equip Separator Corp., 639 F.2d 1320, 1324-25 ment, the EPA published .a notice in the (5th Cir.1981).. Therefore, ^ny claim for Federal Register specifically requesting in breach of warranty by either plaintiff re formation on the incidence and hazards of garding equipment purchased more than such leaks from utility companies. .The four years ago is barred.. The defendants utilities admit that they closely monitored contend that all of the equipment was pur all EPA proceedings relating to PCBs; chased more than four years before this thus, we may assume that they saw this suit was commenced. The plaintiffs did notice. The utilities had every reason to not contest this allegation below or on ap become wary of the use of PCBs in electri peal. Thus, we agree with the conclusion cal equipment by March 1980 at the latest. of the district court that all breach of war This is more certain in light of the District ranty claims are barred by the statute of of Columbia Circuit's decision in Environ limitations. mental Defense Fund v. EPA, 636 F.2d As regards the tort claims, the question of when the claims accrued is more .com plex. The utilities make-two arguments regarding this-issue: first,-they contend that they did not know of the hazards of 1267, 1284-86 (D.C.Cir.1980), in which that court made it clear that transformers, and the other types of equipment at issue here are not totally enclosed uses of PCBs, and so are not entirely protected uses. PCBs in electrical equipment until July The utilities' arguments to the contrary 1985, when the EPA finally declared that appear to be specious. The utilities op use of PCBs to be hazardous. Second, posed the further regulation of the use of they contend that the defendants fraudu PCBs in electrical equipment because they lently concealed the hazards from the utili were concerned about the costs that might ties and the EPA, and so the statutes of .result from such regulation. When the ELECTRIC POWER BD. OF CHATTANOOGA v. MONSANTO CO. 1377 Clic u STS F J d ISM (6tL O r. 1989) regulation they had feared was passed in defendants; (2) failure of the plaintiff to 1985, only then did they become outwardly discover the operative facts that are the concerned about the hazards of their uses basis of his cause of action within the limi of PCB equipment and PCB contaminated tations period; and (3) plaintiffs due dil equipment. This turnabout on the part of igence until discovery of the facts." Day- the utilities diminishes the credibility of co Corp. v. Goodyear Tire & Rubber Co., their claims. 523 F.2d 389, 394 (6th Cir.1975) (citation . This.situation can be analogized to what we have called a "traumatic event/latent injury" case. Hicks v. Hines, Inc., 826 F.2d 1543, 1544 (6th Cir.1987). In Hicks, the plaintiff suffered injuries due to exposure to caustic chemicals in his work place. Some of his injuries manifested themselves in 1979; however, almost four years later, the plaintiff developed cancer and attempt ed to recover damages for this injury. We drew a distinction in that case between "traumatic event/latent injury" cases and ' omitted); Finney Dock and Transport Co. v. Penn Cent Corp., 838 F.2d 1445, 1465(6th Cir.1988) (citing Dayco, 523 F.2d at 394). Further, "[concealment by mere si lence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry." Finney Dock, 838 F.2d at 1467 (citing Wood v. Carpenter, 101'U.S. 135, 143, 25 L.Ed. 807 _{1879))r Although this court was reluctant, to extend the "affirmative acts" require ment beyond cases involving breaches'of fiduciary duties, 'id. at 1471, the Tennessee. "latent injury" cases, in which neither the courts have not been so reluctant The cause nor the consequences of the injury Tennessee Supreme Court has stated that a can be identified until the injury manifests finding "that the defendant took affirma -itself. Id. a t 1545. Although we ,,recog tive action to conceal his cause of action" is nized that it might be difficult for a plain necessary to maintain a claim of fraudulent tiff to sue for both existing and potential concealment Vance v. Schulder; 547 S.W. future injuries, we held that once a plain .2d 927, 930-31 (Tenn.1977) (citations omit tiff is on " `notice of the invasion of his ted);' Willis v. Smith, 683 S.W.2d 682, 688 legal rights,' " ibid, (quoting Albertson v. CTennApp.1984). T.J. Stevenson & Co., Inc., 749 F.2d 223, 232 (5th Cir.1984)), the statute of limita tions begins to run, even if all injuries ' stemming from the traumatic event-have not manifested themselves by the end of the running of the statute of limitations. Here, th "traumatic' event" analog was - - Here, the utilities assert that Monsanto "conspired", with a testing laboratory to present falsified studies to the EPA. Their only proof of this "affirmative action" is that Monsanto employees had been convict ed for similar behavior in the past with respect to other chemicalB. ` United States general knowledge of the danger of PCBs v. Keplinger, 776 F.2d 678 (7th Cir.1985). . in electrical equipment. Thus, we find that The utilities further assert that the defen the district court was correct in determin dants acted in concert to conceal informs^ ing that the plaintiffs' claims had accrued tion from the EPA, and thus from the at least four years before the instant suit utilities, to conceal the plaintiffs' causes of was filed. action. D There is one major flaw in the plaintiffs' arguments. 'Even-if the defendants"took [10] Our holding that'the utilities knew "affirmative action" to conceal the hazards of the hazards of PCBs in electrical equip of PCBs in tiieir use in electrical equip ment at least four years before they fild ment, the utilities cannot meet the. second the instant suit negates their fraudulent requirement for making out a claim of concealment argument This court has fraudulent concealment The trial judge long held that, to prove fraudulent conceal held that the utilities knew or should have ment for the purposes of tolling a statute known of the hazards by 1976. This of limitations, a party must show: "(1) court's conclusion is that they knew at the wrongful concealment of their actions by latest by 1980. However,.in either case, (r J37g 879 FEDERAL REI ATER, 2d SERIES the utilities knew or should have known of (b) Definitions. As used in. this sec the hazards of the UBe of PCBs in electrical tion-- equipment at least four years before their suit was filed. Thus, they cannot show that they failed "to discover the operative facts that are the basis of [their] cause of action within the limitations period/! Dayco, 523 F.2d at 394! Therefore, the utilities "cannot make out a claim of fraudulent con cealment. (4) Federally required commencement date. . (A) In general. Except as provided in subparagraph (B), the term "federally required commencement dale" means the date the plaintiff knew (or reason ably should have known) that the per In sum, then, the applicable statutes of sonal injury or property damages re limitations bar all of the claims alleged in this su it Thus, the trial court was correct in granting summary judgment to the de fendants--unless the utilities are correct ferred to in subsection (a)(1) of this section were, caused or contributed to by the hazardous substance or pollu tant or contaminant concerned. - that'CERCLA* negates the .effects of the The defendants claim that this provision state statutes of limitations. of- CERCLA`jdoes hot* apply because the PCBs in this case are allegedly leaking 'E~ from electrical equipment rather than be ing "released into the environment from a* [11] 42 U.S.C. 9658 provides: facility.'1 42 U.S.C. 9658(aXl) (emphasis (a) State_statutes.of limitations for haz added). However, even if CERCLA applies t ardous substance cases. to.this case, the "federallyrequired com I (1) Exception to state statutes. In the mencement date" is virtually identical to case of any action brought under State the notion of an accrual date under Tennes law for personal injury, or property see law, as discussed above. CERGLA damages, which are caused or contrib would require a party to commence his or : uted to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations pe riod for such action (as specified in the State statute of limitations or under common -law) provides a commence^ ment date which is earlier than the federally! . required commencement date*, such period shall commence at the federally required commencement date in lieu of the date specified in such state statute. her claim when the party knew or should have known of the cause of action, 42 U.S. C. 9658(bX4), as would Tennessee law. McCroskey v. Bryant A ir Conditioning Co., 524 S.W.2d 487, 491 (Tenn.1975). As discussed above, that date was at least four years before the suit was filed. Thus, because the instant suit was not com menced until at least four years later, CERCLA's statute of limitations would bar the instant action, just as the Tennessee statutes do. Since accrual in Tennessee occurs at the same time as under CERC LA--when the plaintiff knew or should (2) State law generally applicable. Ex have known of the availability of the claim cept as provided in paragraph (1), the --application of CERCLA would not statute of limitations established under change the result, in this case. We find State law shall apply in all actions that further analysis of the applicability of brought under State law for personal CERCLA is unwarranted. injury, or properly damages, which are caused or contributed to by exposure to any hazardous substance, or pollu tant or contaminant, released into the environment from a facility. IV Thus, the applicable Tennessee statutes of limitations bar all of the plaintiffs' claims. Plaintiffs' arguments regarding the accrual date of their causes of action, ` ' ' GREATER CINCINNATI CHAMBER OF COM. v. U.S. E.P.A. 1379 Cite u *79 F j d 1379 (6th Clr. 1989) fraudulent concealment, and CERCLA do tion plan was not "final agency action" not save their claims from this determine- subject to judicial review. Clean Air Act, tion. Therefore, we AFFIRM the judg- 307(bXl)( as amended, 42 U.S.C.A. ment of the district court dismissing all 7607(b)(1). claims as time-barred. See publication Words and Phrases for other judicial constructions - and definitions. Robert L. Brubaker (argued), Porter, Wright, Morris & Arthur, Columbus, Ohio, The GREATER CINCINNATI CHAMBER OF COMMERCE; Dupont Corp.; Gen eral Electric Co.; Quantum Chemical Corp.;' The-Cincinnati Gas & Electric. for the Greater Cincinnati Chamber of Commerce. Ross Austin, DuPont Corp. Legal Dept., Wilmington, Del., for Dupont Corp. ,_Co.; The Procter & Gamble Co., Peti- ' Peter Van Allehj Geh. Elec..Co., Cincin-- tioners, nati, Ohio, for Gen. Elec. Co. y. _ . ..David, Copeland, Quantum .Chemical UNITED' STATES ENVIRONMENTAL Corp., Cincinnati, Ohio, for Quantum Chem PROTECTION AGENCY, Respondent. ical Corp. r ' No. 89-3158. -_ United States Court of Appeals, Sixth Circuit Jerome A. yennemann, Cincinnati Gas & Elec. Co., Cincinnati, Ohio; for the Cincin nati Gas & Elec. Co. iL Argued May 26, 1989. Decided July 17, 1989. David E. Ross, Procter & Gamble Co. Legal Division, Cincinnati, Ohio, for the Procter & Gamble Co. Petitioner sought reriew of Environ mental Protection Agency's action finding Ohio* State Implementation .Plan inade quate. -The EPA moved to dimiss. The Court of Appeals, Boggs, Circuit Judge, held that EPA's issuance of notice of defi ciency under Clean Air Act and request for revised state implementation plan was not "final agency* action" subject to judicial review. Petition dismissed. Administrative Law and Procedure <^=704 Health and Environment "'=25.15(3.2)- Environmental Protection Agency's is suance of notice of deficiency of Ohio state implementation plan under Clean Air Act and request for revised state implementa- Lee M. Thomas, Adm'r U.S. E.P.A. Of fice of the Gen. Counsel, Craig B. Shaffer (argued), U.S. Dept, of Justice, Land & N at Resources'Div., Patricia A. Embrey, U.S. E.P.A. Office of Gen. Counsel, Wash ington, D.C., Monica Smith, Office of Re gional Counsel, U.S. E.P.A., Region 5, Vald as. V. Adamkus, Adm'r E.P.A., U.S. E.P.A., Region 5, Chicago, 111., Richard Thornburgh, Office of the U.S. Atty. Gen., Washington, D.C:, for U.S. E.P.A. James 0. Payne (argued), Asst. Atty. Gen., Environmental Enforcement Section, Columbus," Ohio,"for'State of Ohio., . ORDER Before NELSON and BOGGS, Circuit Judges, and ALDRICH, District Judge.* * The Honorable Ann Aldrich, United States Dis trict Judge for the Northern District of Ohio, sitting by designation.