## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-3547

___________ Harry Stephens Farms, Inc.; Harry * Stephens, individually and as managing * partner of Stephens Partnership, *
* Appellants, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Wormald Americas, Inc.; Helena * Chemical Company, Inc.; Exxon Mobil * [PUBLISHED] Corporation, Successor to Mobil * Chemical Company, *
* Appellees. *

___________ Submitted: June 4, 2009 Filed: June 19, 2009

___________ Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.

___________ PER CURIAM.
In this environmental-contamination case, plaintiffs Harry Stephens (Stephens) and two affiliated farming bus inesses appeal the district court’s adverse grant of summary judgment, holding that the appli cable Arkansas three-year statute of limitations barred their action for damages, originally f iled on June 9, 2006. Upon de novo review, see Bannister v. Bemis Co. , 556 F.3d 882, 884 (8th Cir. 2009), we reverse the grant of summary judgment a nd remand the case for further proceedings.-2- To begin, we agree with the district c ourt’s application of the Arkansas threeyear statute of limitations and its appli cation of the “discovery rule.” See Highland Indus. Park, Inc. v. BEI Def. Sys. Co. , 357 F.3d 794, 796 (8th Cir. 2004) (in environmental-contamination action based on diversity jurisdiction, applying law of forum state, Arkansas, to de termine statute-of-limitations issue; concluding Arkansas three-year statute of limitations applie d and Arkansas Supreme Court would use “discovery rule,” i.e., statute does not begin to run until plaintiff knows, or reasonably should know, that its land has suffered remediab le injury). We also believe that the district court’s decision to disregard porti ons of Stephens’s a ffidavit was warranted. See Camfield Tires, Inc. v. Michelin Tire Corp. , 719 F.2d 1361, 1365-66 (8th Cir. 1983) (party who has been examined at le ngth on deposition cannot raise issue of fact simply by submitting affidavit contra dicting his own earlier testimony).

For the following reasons, however, we c onclude that a genuine issue remains as to whether plaintiffs knew or reasonably should have known before June 9, 2003, that their property had suffered a remediableinjury as a result of defendants’ actions on neighboring property. Firs t, Stephens’s undisputed “worry” and “concern” about possible environmental contamination dati ng back to the mid-1990s was not proper evidence on which to rest the su mmary judgment decision. Cf. O’Connor v. Boeing N. Am., Inc. , 311 F.3d 1139, 1148 (9th Cir. 2002) (rej ecting interpretation of federal discovery rule that would begin limitati ons period upon mere suspicion of elements of claim; such standard would result in preventative and often unnecessary claims). Second, summary judgment was not justified by a 2001 report submitted to a state agency by an environmental consulting firm. Although the report indicated that Stephens had been notified of contamination in some of his irrigation wells, no evidence showed that he had in fact been notified at that time. The only evidence of such notification was a December 2004 lette r from a state agency to Stephens, informing him of potentially unsafe levels of a contaminant in one of his irrigation wells and asking him to discontinue usi ng that well until further notice. Cf. Highland Indus. Park, Inc. , 357 F.3d at 797-98 (environmental- contamination action was barred-3- by 3-year statute of limitations where, 3 years and 1 month before complaint was filed, plaintiff had received “the firs t environmental report” notifying it that groundwater contamination had exceeded regul atory levels). Finally, although two of defendants’ witnesses stat ed in affidavits that Stephens had made statements to them in 2002 indicating he was aware of contamination on his property, Stephens provided conflicting deposition testimony. T hus, we conclude that there remains a genuine issue of material fact, which cannot be resolved without making credibility determinations, weighing evidence, and dr awing inferences against the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986) (noting that, for purposes of summary judgment, credibility determinations, weighing of evidence, and drawing of legitimate inferences are func tions of jury, not judge, and all justifiable inferences are to be drawn in favor of non-moving party).

Accordingly, the grant of summary judgment is reversed, and the case is remanded to the district court for furthe r proceedings not inconsistent with this opinion.

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