648 F.Supp. 1283 (D.R.I. 1986), Civ. A. 83-0787, Violet v. Picillo

Docket Nº:Civ. A. 83-0787
Citation:648 F.Supp. 1283
Party Name:Violet v. Picillo
Case Date:November 20, 1986
Court:United States District Courts, 1st Circuit, District of Rhode Island

Page 1283

648 F.Supp. 1283 (D.R.I. 1986)

Arlene VIOLET, In her Capacity as Attorney General of the State of Rhode Island


Warren V. PICILLO, Sr., et al.

Civ. A. No. 83-0787 P.

United States District Court, D. Rhode Island.

Nov. 20, 1986

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[Copyrighted Material Omitted]

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Susan Squires, Atty. Gen.'s Office, Providence, R.I., for plaintiff.

John Dolan, Richard Linn, Providence, R.I., James Russell, Cleveland, Ohio, John Cuzzone Jr., Providence, R.I., Dominick Presto, Rutherford, N.J., John Bomster, Deming Sherman, Providence, R.I., Harriet Sims Harvey, Englewood, N.J., Anthony Muri, Alden Harrington, Harold Krause, James Murphy, Providence, R.I., Harold Hestnes, Boston, Mass., Benjamin White, Providence, R.I., James Russell, Orlando, Fla., Richard Boren, Christopher Little, Providence, R.I., Leif Sigmond, Oceanport, N.J., C. Russell Bengston, A. Lauriston Parks, Barbara Cohen, Gregory Benik, Providence, R.I., William G. Ballaine, Siff & Newman, New York City, Dean N. Temkin, Providence, R.I., Richard Ricci, Lowenstein & Sandler, Roseland, N.J., John Baglini, Providence, R.I., for defendants.


PETTINE, Senior District Judge.

This action is brought by the Office of the Attorney General of Rhode Island to recover cleanup costs incurred as a result of its efforts to clean up large quantities of hazardous chemical waste alleged to have been illegally dumped at the Picillo farm in Coventry, Rhode Island. In addition to her own cleanup, monitoring and closure costs, the plaintiff seeks recovery for damage to the state's natural resources, the alleged result of waste disposal at the Picillo site. The plaintiff brings suit pursuant to the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., and the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq. The plaintiff has named thirty-five parties as defendants, including owner-operators of the site, parties who allegedly transported waste there, parties alleged to have arranged for their waste to be transported to the site, and parties alleged to have produced waste deposited at the site.

Currently before this Court is a motion for partial summary judgment pursuant to Fed.R.Civ.P. 56(b) filed by the defendant Olin Corporation ("Olin"). Olin seeks summary judgment dismissing the CERCLA claim with prejudice. Olin, a "generator" defendant, is alleged to have produced hazardous industrial wastes and arranged for the waste's transport to the Picillo site. Essentially, Olin argues in support of its motion that it may not be held liable under CERCLA because it did not "arrange" to have its chemical wastes deposited at the Picillo site. Olin contends that in 1977 it arranged with Chemical Waste Removal, Inc., (a transporter defendant) to have its wastes deposited at a landfill in Cranston, Rhode Island. Olin seeks exculpation on the grounds that it contracted for and directed the disposal of its hazardous chemical residues at a licensed Rhode Island landfill--the Cranston site--and that without its knowledge or consent, the trucks carrying Olin's waste were diverted to the Picillo property in Coventry. Olin argues that CERCLA liability should only attach to those parties who knowingly dispose of hazardous substances at a site subject to cleanup efforts.

For its part, the state argues that Olin is not entitled to summary judgment because, under CERCLA section 107, liability is imposed without fault, therefore, Olin's knowledge (or lack thereof) of the ultimate site of its waste's disposal is irrelevant to Olin's liability. The plaintiff further argues

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that selection of the disposal site is not a prerequisite to CERCLA liability, and because Olin maintained a contractual relationship with its transporter, Olin may not use the transporter's actions as a shield from liability. Moreover, the state contends that far from exculpating Olin, the facts to which Olin has admitted in its motion for summary judgment form the predicate for generator liability under CERCLA. In a separate motion also currently before this court, the plaintiff moves for partial summary judgment against Olin pursuant to Fed.R.Civ.P. 56(c).

In response to the plaintiff's motion for summary judgment, Olin reiterates its position that it did not arrange for the disposal of its wastes at the Picillo site, therefore, it is not liable for costs the state incurred during the cleanup and closure of the facility. Olin also argues that imposition of joint and several liability on Olin is inappropriate on a motion for summary judgment, particularly considering the magnitude of the harm for which Olin would be required to accept full responsibility. Olin further argues the existence of material facts in dispute, and that it should be permitted the opportunity to develop facts on the record to support the assertion of equitable defenses on its behalf. Both motions for summary judgment are the subject of decision today.


This case arises from the chemical catastrophe of the Picillo pig farm in Coventry, Rhode Island. State environmental authorities discovered this chemical wasteland in 1977 after combustible chemicals caused a dramatic explosion and towering flames to rip through the waste disposal site. After the fire, state investigators discovered large trenches and pits filled with free-flowing, multi-colored, pungent liquid wastes; they also excavated approximately 10,000 barrels and containers in varying states of decay containing hazardous chemical wastes. Eleven of the barrels were specifically traced to the Olin Corporation through identifying markings, labels or other features on the drums. 1 Neither party disputes the route which brought Olin's wastes to the Picillo farm.

During 1977, Olin operated a research center in New Haven, Connecticut. On August 21, 1977, Olin arranged with Chemical Waste Removal, Inc., ("CWR") to deposit at the Capuano Brothers' landfill in Cranston, Rhode Island thirty-eight fifty-five gallon drums of industrial waste material generated at Olin's New Haven facility. Again on September 28, 1977, Olin arranged with CWR to deliver an additional eighty drums of waste to the Capuano Brother's property. At various times during 1977, CWR's drivers were instructed to unload their hazardous cargoes at the Picillo site in Coventry. 2 Olin has admitted that the wastes transported to Rhode Island for disposal in 1977 included one or more of the following substances: HTH samples (oxidizer), Polyols, Isocyanates, Solid Pesticides, fungicides and insecticides, organic liquids including organic acids, inorganic acids, alkaline chemicals, including sodium hydroxide and ammonium hydroxide.


A. Law of Summary Judgment

To succeed on a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure the moving party

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must first establish the absence of any genuine issues of material fact. In determining the existence of such genuine issues of material fact, the Court must view the record in a light most favorable to the party opposing the motion. John Sanderson & Co. v. Ludlow Jute Co. Ltd., 569 F.2d 696, 698 (1st Cir. 1978). All doubts as to the facts or as to the existence of any material fact must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1602-603, 26 L.Ed.2d 142 (1970).

As a preliminary matter, I must reject Olin's motion for partial summary judgment because, after a careful review of the pertinent statutory provisions and judicial interpretations thereof, I have concluded that Olin's interpretation of the standards for generator liability under CERCLA is fundamentally incorrect. Despite plaintiff's accurate explication of the elements of CERCLA liability, there remain material, disputed factual issues the resolution of which would be improper on a motion for summary judgment. Final judgment must await the full development of a complete factual record at trial.

Olin has raised an important issue of fact upon which it is entitled to proceed. Olin contests the plaintiff's allegations concerning the contents of the Olin drums unearthed at the Picillo waste site. In support of her motion for summary judgment, the plaintiff offered the affidavit of John Leo, an employee of the Rhode Island Department of Environmental Management ("DEM") responsible for the daily cleanup and removal operations at the Picillo site. Mr. Leo assumed this position in May 1981. Mr. Leo stated in his affidavit that during the excavation at the Picillo farm, the DEM removed eleven drums bearing Olin markings and labels. The DEM found the hazardous wastes isocyanate resin (also known as "isocyanate" or "TDI") and polyether diol (also known as "polyols") in the Olin-marked drums.

Olin refutes the plaintiff's identification of the chemical substances contained in the Olin drums. Olin has supplied the court with the affidavit of Mr. Richard S. Hendey, Jr., Manager of Olin's Regional Environmental Affairs, who states that to his knowledge, no chemical analyses were performed on the contents of the Olin drums, and that it was impossible to ascertain the contents of the excavated drums solely on visual inspection. Mr. Hendey further affirms that polyols are not "hazardous substances" within the meaning of CERCLA § 101(14), 42 U.S.C. § 9601(14) (1982), the section that defines the substances subject to the Act's control. Mr. Hendey also notes that in deposition testimony, Mr. Leo described the contents of one Olin drum as a "redish viscous material," a description inconsistent with the characteristics of isocyanate resin. This Court will not deny Olin the opportunity to examine Mr. Leo as to the method and accuracy of his identification of...

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