United States v. Reilly Tar & Chemical Corp.

• Decision Date: 20 August 1982
• Docket Number: Civ. No. 4-80-469.
• Citation: 546 F. Supp. 1100
• Parties: UNITED STATES of America, Plaintiff, and State of Minnesota, by its Attorney General, Warren Spannaus, its Department of Health, and its Pollution Control Agency, Plaintiff-Intervenor, v. REILLY TAR & CHEMICAL CORPORATION, Housing and Redevelopment Authority of St. Louis Park; Oak Park Village Associates; Rustic Oaks Condominium, Inc.; and Philips Investment Co., Defendants, and CITY OF ST. LOUIS PARK, Plaintiff-Intervenor, v. REILLY TAR & CHEMICAL CORPORATION, Defendant, and CITY OF HOPKINS, Plaintiff-Intervenor, v. REILLY TAR & CHEMICAL CORPORATION, Defendant.
• Court: U.S. District Court — District of Minnesota

546 F. Supp. 1100

UNITED STATES of America, Plaintiff, and State of Minnesota, by its Attorney General, Warren Spannaus, its Department of Health, and its Pollution Control Agency, Plaintiff-Intervenor, v. REILLY TAR & CHEMICAL CORPORATION, Housing and Redevelopment Authority of St. Louis Park; Oak Park Village Associates; Rustic Oaks Condominium, Inc.; and Philips Investment Co., Defendants, and CITY OF ST. LOUIS PARK, Plaintiff-Intervenor, v. REILLY TAR & CHEMICAL CORPORATION, Defendant, and CITY OF HOPKINS, Plaintiff-Intervenor, v. REILLY TAR & CHEMICAL CORPORATION, Defendant.

Civ. No. 4-80-469.

United States District Court, D. Minnesota, Fourth Division.

August 20, 1982.

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Edward Schwartzbauer, and Michael Wahoske, Minneapolis, Minn., for Reilly Tar & Chemical Corp. Francis X. Herman, Asst. U. S. Atty., and Erica L. Dolgin, Atty., Hazardous Waste Section, Land and Natural Resources Div., Dept. of Justice, Washington, D. C., for U. S.

Stephen Shakman and Dennis Coyne, Sp. Asst. Attys. Gen., St. Paul, Minn., for State of Minn.

Allen Hinderacker, Minneapolis, Minn., for City of St. Louis Park.

Joseph C. Vesely, Hopkins, Minn., for City of Hopkins.

James T. Swenson, Minneapolis, Minn., for TCF Service Corp., successor in interest to Rustic Oaks Condominium, Inc.

Laurence Waldoch, Minneapolis, Minn., for Oak Park Village Associates.

MAGNUSON, District Judge.

The United States, the State of Minnesota (the State), the City of St. Louis Park and the City of Hopkins bring these actions against the Reilly Tar & Chemical Corporation (Reilly Tar) under section 7003 of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6973 (1976 & Supp. IV 1980), and section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9607 (Supp. IV 1980), for alleged contamination of the ground and groundwater in and around the City of St. Louis Park, Minnesota. The United States also asserts a claim against Reilly Tar based upon section 106(a) of CERCLA, 42 U.S.C. 9606(a) (Supp. IV 1980). The State of Minnesota and the cities of St. Louis Park and Hopkins also assert a series of state law claims arising out of the waste disposal practices underlying their federal claims. Reilly Tar has moved for dismissal of the claims for lack of jurisdiction and for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(1) and (6). The motions to dismiss are denied.

Factual Allegations

The factual allegations as contained in the complaints are as follows.

In 1917, Reilly Tar, an Indiana Corporation, began to operate a plant in St. Louis Park, Minnesota where it refined coal tar into creosote oil and other products, and treated wood products with creosote oil and other preservatives. For fifty-five years, until the plant ceased operations in 1972, Reilly Tar generated chemical wastes which were handled, stored, treated and disposed of at the Reilly Tar site.

In June 1973, the City of St. Louis Park purchased the Reilly Tar site and transferred its ownership to the Housing and Redevelopment Authority of St. Louis Park, a municipal corporation incorporated under the laws of Minnesota. From May 1978 through January 1980, defendants Oak Park Village Associates, Rustic Oaks Condominium, Inc., and Philip's Investment Co. purchased part of the Reilly Tar site from the Housing and Redevelopment Authority. TCF Service corporation is the successor in interest to Rustic Oaks Condominium, Inc. The United States and State of Minnesota named these entities as defendants only to insure that the remedial measures they seek can be fully implemented.

In 1970, the State of Minnesota and the City of St. Louis Park sued Reilly Tar in state court for violating state law concerning air and surface water pollution at the Reilly Tar site. The state amended its complaint in 1978 to allege groundwater pollution. That suit is pending.

Plaintiffs further allege that Reilly Tar spilled, leaked and discharged chemical wastes generated at the Reilly Tar site directly into the ground there, and that the wastes are in the ground at and surrounding the site. These chemicals have leached and migrated into the groundwater beneath and surrounding the site and will continue to do so.

The groundwater beneath the Reilly Tar site is part of a system of several aquifers which supplies water to St. Louis Park and other parts of the Minneapolis-St. Paul Metropolitan area. Many industrial and drinking water wells have been drilled into the aquifers. Inadequate groutings and casings in some of the wells permit further migration of the chemicals between the aquifers. One well at the Reilly Tar site is 909 feet deep, and is plugged with coal tar at a depth of approximately 590 feet.

St. Louis Park and Hopkins, as well as other municipalities, obtain drinking water for their residents from the system of aquifers extending beneath the Reilly Tar site. During 1978 and 1979, St. Louis Park closed five drinking water wells because the water was contaminated with chemicals from the Reilly Tar plant. In 1981, Hopkins closed a drinking water well for the same reason. Chemicals from the Reilly Tar operation have contaminated the groundwater in one aquifer at least two miles north of the site, and in another at least one and one-half miles east and southeast of the site. Unless preventive measures are taken, leaching and migration of groundwater will continue to move the chemicals from the Reilly Tar site through the aquifers and into the drinking water for the Minneapolis-St. Paul metropolitan area.

Chemical wastes resulting from the refining of coal tar into creosote oil and other products, and the treatment of wood products with creosote oil and other materials, usually fall within three distinct groups: neutral oils, tar acids, and tar bases. Neutral oils include polynuclear aromatic hydrocarbons (PAH) compounds such as fluoranthene, acenaphthene, benzopyrene, benzathracene, pyrene, and chrysene. Tar acids consist of phenolic compounds such as phenol and cresols. Tar bases consist of basic nitrogen compounds such as acridines and naphthylamines.

Some creosote oil causes cancer in animals and has been associated with occupational cases of cancer in humans. The body absorbs creosote oil through the skin, and on ingestion through the intestinal tract. Acute exposure may produce vomiting, vertigo, respiratory difficulties, headaches, and convulsions. Exposure to high concentrations may also cause hypertension.

Many PAH compounds found in wastes resulting from the refining of creosote oil are animal carcinogens and are suspected human carcinogens. In addition, interaction among the various PAH compounds may enhance their carcinogenic and other toxic effects. Some PAH compounds are cocarcinogens, substances which enhance the carcinogenic activity of cancer causing substances.

Phenolic compounds found in the tar acids resulting from the refining of creosote oil are toxic. Ingestion may cause vomiting, paralysis, convulsions, coma and death. Prolonged exposure to phenolic compounds may impair kidney, liver, and lung functions. Phenol is a tumor promoter, which when exposed to certain carcinogens, increases their carcinogenic activity.

Plaintiffs also allege that the substances Reilly Tar disposed of are classified as hazardous substances by regulations promulgated under the Solid Waste Disposal Act Amendments of 1980.

The State, Hopkins, and St. Louis Park each allege that they have incurred substantial expenses because of Reilly Tar's conduct; that their costs and actions were consistent with the national contingency plan; that they have presented their claims to Reilly Tar under 42 U.S.C. § 9612(a) (Supp. IV 1980); and that Reilly Tar has denied liability and taken no action to satisfy their claims.

The United States alleges that since the passage of CERCLA, it has incurred and will continue to incur response costs in responding to the hazard created by the release and threatened release of hazardous substances from the site. It also alleges that Reilly Tar is liable to it for such costs.

Section 7003 of the Resource Conservation and Recovery Act (RCRA).

All plaintiffs have brought claims against Reilly Tar under Section 7003 of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6973.

The section provides in part:

Notwithstanding any other provision of this chapter, upon receipt of evidence that the handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States in the appropriate district court to immediately restrain any person contributing to such handling, storage, treatment, transportation, or disposal or to take such other action as may be necessary. The Administrator shall provide notice to the affected State of any such suit. The Administrator may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and the environment.

§ 6973(a).

Section 7003 is one of the several imminent hazard provisions that Congress has included in environmental statutes. See Section 1431 of the Safe Drinking Water Act, 42 U.S.C. § 300i(a) (1976); Section 504(a) of the Clean Water Act, 33 U.S.C. § 1364(a) (Supp. IV 1980); Section 303 of the Clean Air Act, 42 U.S.C. § 7603 (Supp. IV 1980); Section 106(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9606 (Supp. IV 1980). Congress broadly drafted these provisions to give appropriate government officials the right to seek judicial relief, or take other appropriate action to avert imminent and substantial threats to the...