O'NEIL v. Picillo

• Decision Date: 08 March 1988
• Docket Number: Civ. A. No. 83-0787 P.
• Parties: James E. O'NEIL, In his Capacity as Attorney General of the State of Rhode Island v. Warren V. PICILLO, Sr., et al.
• Court: U.S. District Court — District of Rhode Island

682 F. Supp. 706

James E. O'NEIL, In his Capacity as Attorney General of the State of Rhode Island v. Warren V. PICILLO, Sr., et al.

Civ. A. No. 83-0787 P.

United States District Court, D. Rhode Island.

March 8, 1988.

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Gary Powers, Asst. Atty. Gen., Providence, R.I., for plaintiff.

Warren Picillo, Jr., pro se.

James H. Russell, Baker & Hostetler, Orlando, Fla., John Cuzzone, Jr., Richard Boren, Howard Lipsey, Providence, R.I., for Morton-Thiokol Corp.

Christopher Little, Providence, R.I., for Nat'l Starch Corp.

Leif Sigmond, pro se.

S. Paul Ryan, Providence, R.I., William G. Ballaine, Siff & Newman, New York City, C. Russell Bengtson, Richard T. Linn, Providence, R.I., for United Sanitation, Inc., Daniel Capuano, A. Capuano Bros., Inc., Jack Capuano, Sanitary Landfill, Inc., and Anthony Capuano.

A. Lauriston Parks, James T. Murphy, Providence, R.I., for Advanced Environmental Technology Corp.

Barbara S. Cohen, Anthony Muri, Providence, R.I., for Monsanto Co.

Gregory L. Benik, Providence, R.I., for Olin Corp.

Dominick Presto, Presto & Barbire, Rutherford, N.J., for Scientific Control Processing & Scientific Environmental Control Systems.

John F. Bomster, David J. Oliveira, Providence, R.I., for Hydron Lab.

Deming S. Sherman, Providence, R.I., for Exxon Research & Engineering Co., Rohm & Haas Co., American Cyanamid Co.

Alden C. Harrington, Providence, R.I., for Warren Picillo, Jr.

Harold E. Krause, Providence, R.I., for Michael Musillo.

Harold Hestnes, Hale & Dorr, Boston, Mass., Benjamin B. White, III, Providence, R.I., for GAF.

John F. Dolan, Rice Dolan & Kershaw, Dean Temkin, Willey & Leroy, Providence, R.I., Richard Ricci, Roseland, N.J., for Rutgers University.

John Baglini, Providence, R.I., for M & T Chemicals.

Richard Galli, Providence, R.I., for Hydron Laboratories, Inc.

Robert Canty, Csaplar & Bok, Boston, Mass., for Hercules Inc.

Charles D. Wick, Providence, R.I., for Mack Barnes.

OPINION

PETTINE, Senior District Judge.

The State of Rhode Island ("State") seeks to hold the defendants jointly and severally liable for one million six hundred and thirteen thousand four hundred and thirty-seven dollars and thirty cents ($1,613,437.30) it expended in cleaning up a hazardous waste site in Coventry, Rhode Island known as the Picillo Pig Farm; it also asks this Court to declare that the defendants must respond in damages for all remedial costs it may incur in the future in the investigation and remediation of damages to the State's natural resources allegedly resulting from the waste disposal by these defendants at said site.

The action is brought pursuant to the Comprehensive Environmental Response Compensation and Liability Act of 1980 ("CERCLA") as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA") 42 U.S.C. sections 9601-9675.

The complaint originally named thirty-five defendants who were either 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. However, on the day designated for trial, the State and the United States Environmental Protection Agency ("EPA"), a nonparty, settled with all the defendants except Olin Corporation ("Olin"), Hydron Laboratories, Inc. ("Hydron"), American Cyanamid Company ("American Cyanamid"), Exxon Research and Engineering Company ("Exxon"), and Rohm & Haas Company ("Rohm & Haas"). The settlements totaled 5.8 million dollars and included various agreements to perform specific remedial action. The State has represented that it will receive 25 percent of the settlement with the remaining 75 percent going to the federal agency.

These remaining defendants claim that the State has failed to prove that the materials in question were hazardous; they also argue that joint and several liability which the State seeks to impose is not appropriate in this case, and that they have the right to interpose several defenses, equitable and legal, which preclude recovery against them.

For the reasons which follow, I find for the plaintiff.

Prolixity is not a commendable hallmark of a legal opinion; the extent of the footnotes here indicate this paper deserves just such an unenviable stamp. In the margin I have substantially quoted from prior opinions rendered in this case; I do so because they set forth the dispositive law of vital legal issues and so I incorporate the same as part of this ruling. Colloquy took place throughout the trial as though certain of these issues had not been rendered; none of it was meaningful enough to cause me to change my position.

I. FACTUAL BACKGROUND

As an overall, with greater specificity being recited at appropriate points in the discussion of the legal issues, I repeat what I stated in my Opinion and Order of November 20, 1986, Violet v. Picillo, 648 F.Supp. 1283 (D.R.I.1986) ruling on Olin's Motion for Summary Judgment:

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.

Id. at 1286.

In this case, the plaintiff claims the following materials found at the site were specifically traced to the defendants: 303 five-gallon cans and 49 fifty-five gallon drums to Rohm & Haas; 21 fifty-five gallon drums to Hydron; 15 fifty-five gallon drums to Exxon; 3 fifty-five gallon lab packs and 11 fifty-five gallon drums to Olin; and 10 fifty-five gallon drums to American Cyanamid.

II. JURISDICTION

In the pre-trial stages of this action, defendants Exxon and Hydron filed motions for dismissal pursuant to Fed.R.Civ.P. 12(b)(2) for lack of in personam jurisdiction. Each disavowed any knowledge of how waste allegedly generated by them came to rest at the Picillo site, and each claimed to lack any significant links to the state of Rhode Island independent of the present litigation. In Violet v. Picillo, 613 F.Supp. 1563 (1985), I set forth a lengthy and detailed discussion of the jurisdictional aspects of this case and I repeat the same here in the margin.¹ I concluded by saying:

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I emphasize that only a prima facie showing of jurisdiction has been made here....

the final determination of the key fact issues bearing on jurisdiction over the person will be made at trial. If they are decided in a way that defeats jurisdiction as to any defendant, as to that defendant plaintiff's action will then be subject to dismissal for want of jurisdiction over the person.

Id. at 1579 n. 17 (citing North American Video v. Leon, 480 F.Supp. 213, 216 (D.Mass.1979)).

Hydron renews its motion post-trial, nourished by the testimony of David Rapaport, a director and Vice President (legal); he testified that:

Hydron was a Delaware corporation;

Its principal place of business in 1977 was New Brunswick, New Jersey;

It has never had any other principal place of business, or any other place of business;

It never had an office in Rhode Island;

To his knowledge, and based on a search of Hydron's records, the only contact with the State of Rhode Island was the delivery in 1976, by mail, of a free sample of one ounce of a chemical to a Rhode Island firm which had requested that the sample be sent;

Hydron did not sell or ship any other products into the State of Rhode Island;

Hydron never qualified to do business in Rhode Island;

It never nominated any agent for service of process in Rhode Island;

It placed no ads in Rhode Island.

In Violet, ruled that non-resident generators of hazardous wastes were akin to national distributors who placed their products into the stream of commerce through intermediaries. 613 F.Supp. at 1576. I held that because these generators "should have known, if they did not, in fact know, that it was dispatching its hazardous wastes into a stream of commerce broad enough to include any and all states" it did not offend due process to subject them to suit in one of the states comprising its "market." Id. at 1576-77 (citations omitted).

I am not diverted from my original holding by Hydron's proffered evidence. The analysis of jurisdiction in Violet was premised upon a theory of specific jurisdiction. See id. at 1575 n. 12. A court exercises specific jurisdiction when the plaintiff's claims "arise out of" or are "directly related" to defendant's contacts with the forum state. DuPont Tire Serv. v. North Stonington Auto-Truck Pl., Inc., 659 F.Supp. 861, 863 (D.R.I.1987) (J. Lagueaux). General jurisdiction, however, arises where plaintiff's claims do not arise out of or are not directly related to defendant's claims. Id. Consequently, my only concern in Violet was whether the shipment of hazardous wastes into Rhode Island through intermediaries was a sufficient "contact" with the state for purposes of jurisdiction. Because Hydron's evidence relates to contracts unrelated to the cause of action, that is, contacts relevant to the concept of general jurisdiction, I see no reason to reconsider my earlier position.

I am moved, however, to reconsider my opinion in Violet for another reason. The holding in that case was predicated on the "stream of commerce" doctrine seemingly sanctioned in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). There, the Supreme Court observed that "the forum state does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a...