667 F.Supp. 1298 (E.D.Mo. 1987), 84-200C 1, United States v. Bliss

Docket Nº:84-200C 1
Citation:667 F.Supp. 1298
Party Name:United States v. Bliss
Case Date:August 07, 1987
Court:United States District Courts, 8th Circuit, Eastern District of Missouri
 
FREE EXCERPT

Page 1298

667 F.Supp. 1298 (E.D.Mo. 1987)

UNITED STATES of America, Plaintiff,

v.

Russell M. BLISS, et al., Defendants.

No. 84-200C(1).

United States District Court, E.D. Missouri, Eastern Division.

Aug. 7, 1987

Page 1299

[Copyrighted Material Omitted]

Page 1300

[Copyrighted Material Omitted]

Page 1301

Jill Newman & Joseph Moore, Asst. U.S. Attys., St. Louis, Mo., F. Henry Habicht, II, Steven R. Baer, John R. Barker, Mark E. Grummer, Brian G. Donohue, U.S. Dept. of Justice, James J. Kohanek, U.S. Environmental Prot. Agency, Washington, D.C.,

Page 1302

Cheryle Micinski, Asst. Regional Counsel, U.S. Environmental Prot. Agency, Kansas City, Kan., for plaintiff.

Eric B. Rothenberg, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for Saddle & Spur Club, Inc.

John J. Cole, St. Louis, Mo., Joseph M. Spivey, III, Louis T. Booker, William B. Ellis, Richmond, Va., for all Syntex Companies.

F. Wm. McCalpin, Richard A. Ahrens, Lewis & Rice, St. Louis, Mo., for defendant Ind. Petro. Corp.

Ted L. Perryman, St. Louis, Mo., for defendants N.E. Pharm. & Chem. Co., Edwin Michaels and John Lee.

Russell & Evelyn Bliss, pro se.

Jerry R. Bliss, pro se.

MEMORANDUM

NANGLE, Chief Judge.

This case is now before this court on the motion of the plaintiff United States for partial summary judgment. In this action, the United States seeks injunctive relief and recovery of clean-up costs under sections 106 and 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9606 and 9607, and section 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6973, in connection with six sites in the Eastern District of Missouri. As the United States alleges, these sites are contaminated by the hazardous substances 2, 3, 7, 8 -tetra chlorodibenzo-p-dioxin (dioxin) and trichlorophenol (TCP) and threaten the public health and environment.

By the instant motion, the United States seeks partial summary judgment against defendants Northeastern Pharmaceutical and Chemical Company, Inc. (NEPACCO); NEPACCO's president, Edwin Michaels; NEPACCO's vice-president, John Lee; Independent Petrochemical Corp. (IPC); Russell Martin Bliss; and Jerry-Russell Bliss, Inc. 1 Specifically, the United States asks this Court to find that these defendants are 1) jointly and severally liable under section 107(a) of CERCLA; 2) responsible parties subject to joint and several liability under section 106(a) of CERCLA upon a future showing of endangerment; and 3) contributors subject to joint and several liability under section 7003(a) of RCRA upon a future showing of endangerment. For the reasons set out below, the motion of the United States is granted as to section 107(a) of CERCLA and denied as to section 106(a) of CERCLA and section 7003(a) of RCRA.

I. FACTS

In late 1969, NEPACCO leased from Hoffman-Taff, Inc., portions of an existing manufacturing facility located near Verona, Missouri, and purchased from Hoffman-Taff manufacturing equipment located there. Hoffman-Taff had used the facility previously to manufacture the defoliant Agent Orange. The equipment purchased included at least one of two black, insulated 7500-gallon tanks previously used in the manufacture of Agent Orange.

NEPACCO used the facility to manufacture hexachlorophene, the desired product. The chemical manufacturing process used by NEPACCO also produced dioxin and TCP, the undesired products. In one of the tanks purchased from Hoffman-Taff, NEPACCO stored some of the undesired products from the manufacturing process, including dioxin and TCP.

From 1969 to 1972, Edwin Michaels was the president, a director, and a stockholder of NEPACCO. During this same time, John Lee served as the vice-president and a director of NEPACCO and held stock in the corporation.

Page 1303

From 1970 through 1972, Gregory Browne served as the St. Louis District Manager of IPC. During that time, IPC supplied certain solvents to NEPACCO. From this relationship, Browne learned of NEPACCO's need to dispose of materials accumulating in the black, insulated tank.

During 1971, NEPACCO, Michaels, and Lee arranged with Gregory Browne the disposal of the liquid materials in the black, insulated tank. Both Michaels and Lee met personally with employees of IPC to arrange for the disposal of the materials. Browne, in turn, arranged for Russell Martin Bliss to carry out the disposal of the tank materials. Pursuant to this arrangement, Bliss picked up at least five tank truck truckloads from the Verona plant between February and October of 1971. Each load contained approximately 3000 to 3500 gallons of material. Bliss billed IPC for these services. IPC billed NEPACCO, charging a larger amount for disposal than Bliss charged IPC.

On each trip, Bliss or a Bliss employee would drive a truck to Verona and load the truck from the insulated tank. With the exception of one or perhaps two loads, the waste materials were then delivered to Bliss' facility near Frontenac, Missouri. These materials were then placed in storage tanks at the Bliss facility. Subsequently, Bliss or his employees reloaded his trucks with material from his storage tanks and sprayed that material at a number of sites within this district. The materials, referred to as still bottom residues by NEPACCO and as waste oil or acid oil by Bliss and IPC, were sprayed at the sites to suppress dust. These sites include four stables or horse arenas: the Saddle and Spur Club, Shenandoah Stables, Timberline, and Bubbling Springs. On one return trip from Verona, Bliss sprayed part of his load along a road and on a horse ring at his farm near Rosati, Missouri. Thus, these materials did not reach the Frontenac facility.

During the relevant time period, Bliss was receiving oil from one to two thousand sources, primarily crankcase oil from service stations. This oil was also placed in one or two storage tanks at Frontenac. The majority of this oil was drained from these tanks, loaded onto either of Bliss' tank trucks, and taken to refineries. Oil was placed into and drained from the two storage tanks on a daily basis.

Soil samples were taken by the Environmental Protection Agency at Rosati, Frontenac, and the four horse arenas. Analyses of these samples reveal the presence of dioxin and/or TCP at each site and confirm that dioxin and/or TCP were released there.

The United States has incurred response costs in connection with the release of dioxin and/or TCP at the six sites in this action.

Jerry-Russell Bliss, Inc. is the successor in liability to the activities of Russell Martin Bliss.

II. DISCUSSION

The United States seeks partial summary judgment under three statutory provisions: sections 106(a) and 107(a) of CERCLA and section 7003(a) of RCRA. The appropriate standard for summary judgment under Fed.R.Civ.P. 56 and the standards for imposition of liability under these statutes are discussed below.

A. Fed.R.Civ.P. 56

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted if the moving party can "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In passing on a motion for summary judgment, a court must view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the facts. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). The burden of proof is on the moving party, and a court should not grant summary judgment unless convinced that there is no evidence to sustain a recovery

Page 1304

under any circumstance. Foster v. Johns-Manville Sales Corp., 787 F.2d 390, 392 (8th Cir.1986). Nevertheless, a party opposing a motion for summary judgment may not rest upon the allegations of the pleadings but "must set forth specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2739 (1983). Thus, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 106 S.Ct. at 1356.

B. Section 107(a) of CERCLA

In 1980, Congress enacted CERCLA as a comprehensive response to the problems of hazardous waste. Through the Act, Congress intended to provide the federal government with a prompt and effective response to hazardous waste problems and to force those responsible for creating hazardous waste problems to bear the cost of their actions. Violet v. Picillo, 648 F.Supp. 1283, 1288 (D.R.I.1986). The Act authorized federal district courts to grant injunctive relief to protect public health and to facilitate clean-up activities. 42 U.S.C. § 9606. The Act also created a "Superfund" to finance clean-up activities and provided the federal government with a cause of action to recover clean-up costs. 42 U.S.C. §§ 9604 and 9607.

CERCLA authorizes the United States to sue to recover for damage to natural resources and for "all costs of removal or remedial action." 42 U.S.C. § 9607(a). CERCLA does not identify expressly the elements of a prima facie case of liability for clean-up costs. Instead, the statute merely lists classes of potentially liable parties, 42 U.S.C. § 9607(a), and provides three causation-based defenses, 42 U.S.C. § 9607(b). See generally Developments in the Law-Toxic Waste Litigation, 99 Harv.L.Rev. 1459, 1520 (1986). From this list of potentially liable parties, the elements of a prima facie case may be derived...

To continue reading

FREE SIGN UP