United States District Court, Middle District of Louisiana
JEFFREY M. SIMONEAUX
E.I. du PONT de NEMOURS & COMPANY
SHELLY D. DICK JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
Before the Court are two pending summary judgment motions. Relator, Jeffrey M. Simoneaux (“Simoneaux”, has a filed a Motion for Partial Summary Judgment,  to which Defendant, E.I. DuPont de Nemours & Company (“Dupont”) has filed an opposition. DuPont has also filed its own Motion for Summary Judgment that Simoneaux has opposed. Each party has filed reply briefs in support of their respective motions. For the following reasons, both motions shall be denied.
I. INTRODUCTION AND RELEVANT FACTUAL AND PROCEDURAL HISTORY
DuPont’s Burnside facility manufactures and/or processes sulfur trioxide (SO3), sulfur dioxide (SO2), and sulfuric acid. Simoneaux, a former employee of DuPont’s Burnside facility, initiated this lawsuit against DuPont under the qui tam provision of the False Claims Act (“FCA”). Simoneaux has claimed that DuPont failed to comply with its obligation under 15 U.S.C. § 2607 of the Toxic Substances and Control Act (“TSCA”) to report the release of SO2, SO3, and sulphuric acid at its Burnside Plant to the Environmental Protection Agency (EPA).
It is not in dispute, that during the relevant time period for which Simoneaux bases his claim, DuPont has had periodic leaks of SO2, SO3, and sulphuric acid from its process equipment at its facility in Burnside, Louisiana. The parties also concur that “an exposure to sulphur dioxide, sulphur trioxide or sulphuric acid in sufficient dose and duration can cause human health effects, and that those effects have been known for years generally in the scientific community.” Furthermore, SO2 and SO3 are known to be carcinogenic and are listed under the TSCA.
Both parties have filed what the Court deems to be cross motions for summary judgment  disputing whether DuPont had “substantial risk information” so as to trigger its reporting obligation under Section 8(e) of the TSCA. In addition, DuPont reasserts is its previous summary judgment argument that that that Simoneaux’s FCA retaliation claim be dismissed because he cannot satisfy his burden of demonstrating that he made DuPont aware of his concern about possible fraud.
a. Summary Judgment Standard
The court shall grant summary judgment 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.” “When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence.” A party moving for summary judgment “must ‘demonstrate the absence of a genuine issue of material fact, ’ but need not negate the elements of the nonmovant’s case.” If the moving party satisfies its burden, “the non-moving party must show that summary judgment is inappropriate by setting ‘forth specific facts showing the existence of a genuine issue concerning every essential component of its case.’” However, the non-moving party’s burden “is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” All reasonable factual inferences must be resolved in favor of the nonmoving party.Nevertheless, “[t]he Court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim.” “Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his allegations … to get to a jury without any “significant probative evidence tending to support the complaint.”’” Ultimately “[t]he substantive law dictates which facts are material.”
b. False Claims Act and the TSCA
In this case, Simoneaux has asserted a “reverse false claim” under the False Claims Act (“FCA”). Section 3729(a)(1)(G) of the FCA imposes liability on any person who:
knowingly makes, uses or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.
For purposes of the FCA, the term “obligation” is defined as “an established duty, whether or not fixed, arising from … statute or regulation.” The term ...