The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CA 05-726
DEBBIE B. STEWART
VERSUS
RHEEM MANUFACTURING CO., ET AL.
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 904557
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
**********
JOHN D. SAUNDERS
JUDGE
**********
Court composed of John D. Saunders, Michael G. Sullivan, and J. David Painter,
Judges.
REVERSED AND REMANDED.
Henry Adolph Bernard, Jr.
William Martin Hudson, III
Lawrence Edward Marino
Kimberly M. Bernard
Oats & Hudson
100 E. Vermillion St., #400
Lafayette, LA 70501
(337) 233-1100
Counsel for Plaintiffs/Appellants:
Ryan Stewart
Kelly Stewart Shreve
Kyra Stewart
Debbie B. Stewart
Michael Gonzales Durand
Timothy John McNamara
Brent Gerard Sonnier
Onebane Law Firm
P. O. Box 3507
Lafayette, LA 70502-3507
(337) 237-2660
Counsel for Defendant/Appellee:
Duracell International, Inc.
L. Albert Forrest
Attorney at Law
P. O. Box 10087
New Iberia, LA 70562-0087
(337) 364-2343
Counsel for Defendants/Appellees:
Glenn Keith Menard
State Farm Fire & Casualty Co.
Paul Joseph Hebert
Ottinger Hebert
P. O. Drawer 52606
Lafayette, LA 70505-2606
(337) 232-2606
Counsel for Defendant/Appellee:
Keith Menard
Ralph Shelton Hubbard, III
Attorney at Law
601 Poydras Street, Suite 2775
New Orleans, LA 70130
(504) 568-1990
Counsel for Defendant/Appellee:
Travelers Indemnity Company of Illinois
J. Reginald Keogh
Stephen R. Wilson
Keogh, Cox, & Wilson
P. O. Box 1151
Baton Rouge, LA 70802-0000
(225) 383-3795
Counsel for Defendant/Appellee:
Rheem Manufacturing Co.
Bruce C Waltzer
Joel Waltzer
Attorneys at Law
14349 Chef Menteur Hwy., Suite D
New Orleans, LA 70129
(504) 254-4400
Counsel for Intervenor/Appellee:
Joel R. Waltzer
Bruce C Waltzer
Edgar Dean Gankendorff
Provosty, Sadler, et al
650 Poydras St., Suite 2700
New Orleans, LA 70130
(504) 410-2795
Counsel for Plaintiffs/Appellants:
Debbie B. Stewart
Kelly Stewart Shreve
Ryan Stewart
Kyra Stewart
Michael Wayne Landry
Law Offices of Harold Toscano
One Lakeshore Dr., Suite 1710
Lake Charles, LA 70629
(337) 497-0039
Counsel for Defendant/Appellee:
Duracell International, Inc.
Stephen M. Whitlow
Attorney at Law
P. O. Box 1151
Baton Rouge, LA 70821
(225) 383-3796
Counsel for Defendant/Appellee:
Rheem Manufacturing Co.
Celeste D. Elliott
Lugenbuhl, Wheaton, Peck, Rankin, & Hubbard
601 Poydras, #2275
New Orleans, LA 70130-6027
(504) 568-1990
Counsel for Defendant/Appellee:
Travelers Indemnity Co. of IL
Carolyn Bateman Hennesy
Attorney at Law
601 Poydras St., #2775
New Orleans, LA 70130
(504) 568-1990
Counsel for Defendant/Appellee:
Travelers Indemnity Co. of IL
Lawrence Jerome Goldstein
Attorney at Law
1020 St. Claude Ave.
New Orleans, LA 70116-2304
(504) 522-6714
Counsel for Plaintiffs/Appellants:
Debbie B. Stewart
Ryan Stewart
Kelly Stewart Shreve
Kyra Stewart
SAUNDERS, Judge.
Occupants of a leased home brought suit to recover damages for exposure to
polychlorinated biphenyls (hereinafter referred to as “PCBs”) occurring when a
capacitor in the home’s air conditioning unit ruptured. The homeowner, unit
manufacturer, and capacitor manufacturer filed motions for summary judgment. The
homeowner’s motion was denied and the manufacturers’ motions were granted on the
basis of federal preemption. Plaintiffs appealed the granting of those motions. We
reverse.
FACTS AND PROCEDURAL HISTORY
Debbie Stewart and her three children were living in a home leased from Keith
Menard on May 20, 1990. On that date, the Stewarts smelled a burning odor and
noticed that the home’s air conditioning unit, manufactured by Rheem Manufacturing
Company (hereinafter referred to as “Rheem”), was not functioning properly. A
serviceman was called and he determined that the unit’s capacitor, manufactured by
defendant Duracell’s predecessor in interest Mallory Capacitor Company (hereinafter
referred to as “Duracell”), ruptured and burned releasing PCBs. The Stewarts
breathed the PCBs and allegedly suffered adverse health effects as a result.
The Stewarts filed suit and Duracell, Rheem, and Mr. Menard filed motions for
summary judgment. The trial court denied Mr. Menard’s motion but granted those
by Duracell and Rheem concluding that federal law, namely the Toxic Substances
Control Act (TSCA), preempted the Stewarts’ claims as to those defendants. The
Stewarts then filed this devolutive appeal.
ASSIGNMENTS OF ERROR
1) The trial court erred in finding that the TSCA preempts the Stewarts’
suit for personal injuries under the Louisiana Products Liability Act
(LPLA).
2) The trial court erred in finding that the leaking capacitor at issue
qualified as “totally enclosed” under the TSCA regulations.
STANDARD OF REVIEW
Appellate courts conduct a de novo review of rulings on motions for summary
judgment. Alfred Palma, Inc., v. Crane Servs. Inc., 03-0614 (La.App. 3 Cir. 11/5/03),
858 So.2d 772. “It is well established that a summary judgment shall be rendered if
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to material fact, and
that the mover is entitled to judgment as a matter of law.” Id. at 774 (quoting Shelton
v. Standard/700 Assocs., 01-507, p. 5 (La. 10/16/01), 798 So.2d 60, 64-65); La.Code
Civ.P. art. 966.
ASSIGNMENT OF ERROR NUMBER ONE
In this assignment, plaintiffs argue that the trial court erred in finding that their
claims against Duracell and Rheem are preempted by the TSCA. The preemptive
language upon which the trial court based its ruling is found in 15 U.S.C.A. 2617.
That statute provides that:
(a) Effect on State law
(1) Except as provided in paragraph (2), nothing in this
chapter shall affect the authority of any State or political
subdivision of a State to establish or continue in effect
regulation of any chemical substance, mixture, or article
containing a chemical substance or mixture.
(2) Except as provided in subsection (b) of this section--
(A) if the Administrator requires by a rule promulgated
under section 2603 of this title the testing of a chemical
substance or mixture, no State or political subdivision
may, after the effective date of such rule, establish or
continue in effect a requirement for the testing of such
substance or mixture for purposes similar to those for
which testing is required under such rule; and
2
(B) if the Administrator prescribes a rule or order under
section 2604 or 2605 of this title (other than a rule
imposing a requirement described in subsection (a)(6) of
section 2605 of this title) which is applicable to a
chemical substance or mixture, and which is designed to
protect against a risk of injury to health or the
environment associated with such substance or mixture,
no State or political subdivision of a State may, after the
effective date of such requirement, establish or continue
in effect, any requirement which is applicable to such
substance or mixture, or an article containing such
substance or mixture, and which is designed to protect
against such risk unless such requirement (i) is identical to
the requirement prescribed by the Administrator, (ii) is
adopted under the authority of the Clean Air Act [42
U.S.C.A. § 7401 et seq.] or any other Federal law, or (iii)
prohibits the use of such substance or mixture in such
State or political subdivision (other than its use in the
manufacture or processing of other substances or
mixtures).
(b) Exemption
Upon application of a State or political subdivision of a
State the Administrator may by rule exempt from
subsection (a)(2) of this section, under such conditions as
may be prescribed in such rule, a requirement of such
State or political subdivision designed to protect against
a risk of injury to health or the environment associated
with a chemical substance, mixture, or article containing
a chemical substance or mixture if--
(1) compliance with the requirement would not cause the
manufacturing, processing, distribution in commerce, or
use of the substance, mixture, or article to be in violation
of the applicable requirement under this chapter described
in subsection (a)(2) of this section, and
(2) the State or political subdivision requirement (A)
provides a significantly higher degree of protection from
such risk than the requirement under this chapter described
in subsection (a)(2) of this section and (B) does not,
through difficulties in marketing, distribution, or other
factors, unduly burden interstate commerce.
3
Because this case does not involve creation of testing requirements, 15 U.S.C.A.
2617(a)(2)(A) is inapplicable. Accordingly, preemption must be based upon 15
U.S.C.A. 2617(a)(2)(B), which requires that two conditions be satisfied. The first is
that there be a regulation imposed by the Environmental Protection Agency (EPA)
that binds defendants. 15 U.S.C.A. 2617(a)(2)(B). The second condition is that the
state action constitutes a non-exempt requirement designed to protect against a risk
of injury.
Plaintiffs argue that, because there was no requirement that PCBs be used in
the capacitor, the first condition is not satisfied. We agree that the first condition is
not satisfied, albeit for different reasons. The trial court noted that, while their
manufacture was banned in 1976, PCBs could be distributed if done so in a totally
enclosed manner and deemed this to be a rule or order under 15 U.S.C.A.
2605(e)(2)(B). A totally enclosed manner is defined by 15 U.S.C.A. 2605(e)(2)(C)
as “any manner which will ensure that any exposure of human beings or the
environment to a polychlorinated biphenyl will be insignificant as determined by the
Administrator by rule.” 15 U.S.C.A. 2605(e)(2)(C). Significant exposure is defined
as:
any exposure of human beings or the environment to PCBs,
as measured or detected by any scientifically acceptable
analytical method, may be significant, depending on such
factors as the quantity of PCBs involved in the exposure,
the likelihood of exposure to humans and the environment,
and the effect of exposure. For purposes of determining
which PCB Items are totally enclosed, pursuant to section
6(e)(2)(C) of TSCA, since exposure to such Items may be
significant, the Administrator further finds that a totally
enclosed manner is a manner which results in no exposure
to humans or the environment to PCBs.
4
40 C.F.R. 761.20. A reading of these statutes indicates that the EPA regulates the
permissible risk of exposure to PCBs, not the specific manner in which that risk is
minimized. There are no requirements, such as design or use of particular materials,
provided in the regulations. The lack of such language indicates that the act does not
seek to regulate these considerations, leaving that task to the states. Accordingly, we
conclude that preemption in that regard is not intended.
Rather, if, despite the lack of language on the issue, these statutes are construed
as regulating the same behavior covered by the LPLA, they must also be deemed to
be in harmony with that same act. Indeed, the TSCA specifically allows a state to
prohibit the use of PCBs. If a state may prohibit their use, it must also be allowed to
govern their permissible use given the lack of specific federal regulations on the
subject.
We believe that Congress recognized a serious problem and attempted to
remedy it in an economically feasible manner without abrogating traditional state
powers. Federal lawmakers, recognizing the extremely harmful effect PCBs have on
humans and the environment, banned their manufacture. These effects, however,
were weighed against the economic realities facing those who had already
manufactured PCBs and a balance was struck. The previously manufactured PCBs
could be distributed but only in a manner that would not allow them to be exposed to
humans or the environment. While the legislature attempted to avoid an excessively
onerous financial burden on those who previously manufactured these chemicals, it
clearly sought the elimination of the risk of PCB exposure. No time limit was placed
upon this protection.
5
The trial court concluded that the intent of the act was not to hold
manufacturers indefinitely liable. It was further determined that the fact that the
capacitor did not leak for twelve years equates to compliance with the totally enclosed
requirement. While we do not hold it was intended that PCB containing items outlast
the great pyramids, we believe that it is reasonable to expect that such component
parts should not leak for the life of the unit into which they are incorporated. This
interpretation is supported by the definitions of significant risk and totally enclosed
as well as the permissible state ban on PCB usage. The part at issue here leaked and
exposed the Stewarts and the environment to PCBs. This is precisely the type of
injury the TSCA seeks to avoid. That act, however, does not specifically provide for
the means of accomplishing that end. Those means, therefore, must be governed by
the LPLA. Accordingly, we find that plaintiffs’ claims are not preempted and reverse
the trial court’s judgment. Because of this finding, plaintiffs’ second assignment of
error is rendered moot at this stage of the proceedings.
CONCLUSION
The judgment of the trial court is reversed and the case is remanded. Costs of
this appeal are assessed to defendants.
REVERSED AND REMANDED.
6