US v. Cannons Engineering Corp.
| Decision Date | 14 August 1989 |
| Docket Number | Civ. A. No. 88-1786-WF to 88-1788-WF. |
| Parties | UNITED STATES of America, Plaintiff, v. CANNONS ENGINEERING CORP., et al., Defendants. COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. CANNONS ENGINEERING CORP., et al., Defendants. STATE OF NEW HAMPSHIRE, Plaintiff, v. CANNONS ENGINEERING CORP., et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
COPYRIGHT MATERIAL OMITTED
M. Ellen Carpenter, Asst. U.S. Atty., Boston, Mass., David Hird, Washington, D.C., for U.S.
Mark O'Connor, Rich, May, Bilodeau & Flaherty, P.C., Boston, Mass., Waldehig, Starr, Peters, Dunn & Chiesa, Charles Dunn, Manchester, Mass., for Kingston Warren Corp.
Kevin F. Moloney, Barron & Stadfeld, Boston, Mass., for J. Robert Cannon.
Jerry Schwartz, Environmental Enforcement Sec., Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for Land & Natural Resources Div.
Thomas R. Rousell, Wilmington, Mass., for Edward C. Whitney & Son, Inc. # 23.
Mark L. Cook, Westminster, Mass.
Mark S. Granger, Morrison, Mahoney & Miller, Boston, Mass., for Giusti Baking Co. of New Bedford.
Charles F. Clinton, Manchester, N.H., for Frederick L. Tinkham, Frederick S. Tinkham, Tinkham Realty, et al.
Deming E. Sherman, Edwards & Angell, Providence, R.I., for INCO United States, Inc.
Richard Zolo, d/b/a Zollo Drum Co., Saint Lucia, Fla., pro se.
Michael A. Brown, Schmeltzer, Aptaker & Sheppard, P.C., Washington, D.C., Thomas Arnold, Arnold & Kangas, P.C., Concord, Mass., for Salt Water Trust.
Paul G. Garrity, Boston, Mass., for Roy Brothers, Inc.
Paul S. Samson, Riemer & Braunstein, Boston, Mass., for Crown Roll Leaf, Inc.
Michael DeFanti, Hinckley, Allen, Snyder & Comen, Providence, R.I., for Olin-Hunt Specialty Products Inc.
Mitchell Lyons, Levitz, Lyons, Kesselman, Modiste, Levy & Goodman, Stoughton, Mass., for W.E.S. Inc. d/b/a Maine Coastal Services.
Craig Campbell, Mark Furey, Thompson, McNaboe, Ashley & Bull, Portland, Me., Martha Koster, Gaston & Snow, Boston, Mass., for Raymark Ind.
Robert C. Barber, Looney & Grossman, Boston, Mass., for Cyn Oil Corp.
Laurie Burt, Robert S. Sanoff, Foley, Hoag & Eliot, Boston, Mass., for Cannons Sites Group.
William R. Landry, Blish & Cavanagh, Providence, R.I., for Scott Brass Inc.
Rosanna Sattler, Posternak, Blankstein & Lund, Boston, Mass., for 1st Londonderry Dev. Corp. Capital Hill Assoc. etc.
Anthony M. Traini, Randolph, Mass., for Mark Ostroff.
David Jones, McDermott & Rizzo, Boston, Mass., for Chemical Waste Management of N.J., Inc.
Martha V. Gordon, Merrill & Broderick, Manchester, N.H., for Beggs & Cobb.
The United States, the Commonwealth of Massachusetts and the State of New Hampshire ("plaintiffs") brought these three consolidated actions under sections 107(a) and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or "Superfund"), 42 U.S.C. §§ 9607(a) and 9613, and under the applicable laws of Massachusetts and New Hampshire. Plaintiffs seek to recover the costs which they have incurred concerning four hazardous substance disposal sites and to obtain a declaration that the 84 defendants are liable for future environmental response costs at those sites. These defendants include parties who are alleged to be owners or operators of one or more of the sites, or generators or transporters of hazardous substances sent to one or more of the sites. Plaintiffs contend that these defendants are strictly, jointly and severally liable for the costs of cleaning-up each site with which they were involved.
Currently before this court are the plaintiffs' Motions for Entry of Two Partial Consent Decrees as Final Judgments involving 59 defendants. Under the proposed First Partial Consent Decree (the "Major PRP Consent Decree"), 47 settling defendants agree to undertake remedial actions at three of the four sites involved in this case, and to pay $18,855,000 to the United States and the State of New Hampshire to reimburse them for the environmental response costs1 incurred at two of the four sites. The settling defendants who have signed the Major PRP Consent Decree have agreed to accept the risk of increased costs of cleanup and may be liable for correcting undiscovered conditions at the sites. Approval of the Major PRP Consent Decree, and its entry as a final judgment, is opposed by seven non-settling defendants.
Under the proposed Second Partial Consent Decree, (the "De Minimis PRP Consent Decree"), twelve other defendants agree to pay the United States, the Commonwealth of Massachusetts and the State of New Hampshire $792,000 to settle their liability for certain response costs already incurred. The non-settling defendants who oppose the Major PRP Consent Decree have not opposed approval of the De Minimis PRP Consent Decree. However, these non-settling defendants have raised questions about the fairness of the two Consent Decrees as they relate to one another.
Also before the court are the settling defendants' Motions to Dismiss the Cross-Claims of Non-Settling Defendants for contribution and indemnification. Several settling defendants also oppose Motions to Amend Answers to Add Cross-Claims for contribution and indemnification brought by some non-settling defendants.
For the reasons stated in this opinion, plaintiffs' Motions for Entry of Two Partial Consent Decrees as Final Judgments will be allowed. The Motions to Dismiss Cross-Claims will also be allowed. The Motions of Non-Settling Defendants to Amend Answers to Add Cross-Claims for contribution and indemnity will be denied.
As indicated earlier, these actions were brought by the United States, the Commonwealth of Massachusetts, and the State of New Hampshire, under sections 107 and 113 of CERCLA, 42 U.S.C. §§ 9607, 9613, and relevant state laws. Plaintiffs seek to recover costs already incurred and to obtain a declaratory judgment requiring payment of costs to be incurred in relation to four Superfund National Priorities List hazardous waste sites — sites designated annually by EPA for remedial attention. See 42 U.S.C. § 9605. Two of the sites are in Bridgewater and Plymouth, Massachusetts. The other two sites are in Londonderry and Nashua, New Hampshire. The States' complaints contain the same allegations as those in the action brought by the United States, but are concerned only with the two sites within their respective jurisdictions.
In CERCLA, Congress created a framework for the United States and the states to respond to releases and threatened releases of hazardous substances into the environment. Under section 104(b) of CERCLA, 42 U.S.C. § 9604(b), the United States is authorized to investigate such releases or threatened releases of hazardous substances, and to respond to those releases in order to protect public health and the environment. Section 105 of CERCLA, 42 U.S.C. § 9605, requires the United States to adopt a National Contingency Plan, codified at 40 C.F.R. § 300, which sets forth the procedures to be followed and the criteria to be considered in implementing a response action.
Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), allows the United States and the States to sue to recover response costs incurred at a facility where there has been a release or threatened release of hazardous substances. Recovery is available against: (1) the current owner or operator of the facility; (2) the owner or operator of the facility at the time of disposal of the hazardous substances; (3) persons who arranged for disposal of hazardous substances (often called "generators"); and (4) the transporters of hazardous substances to the facility.
The complaints in these cases include the following allegations. The Cannons Engineering Corporation ("Cannons"), and its principals J. Robert Cannon and J. Scott Cannon, operated a hazardous substance storage and incineration facility in Bridgewater, Massachusetts from 1974 to 1980. Cannons accepted for disposal wastes containing hazardous substances and held such wastes in a series of interconnecting holding tanks where the wastes were mixed together. United States Complaint ¶¶ 79-81. Cannons also rented a storage site in Plymouth from defendant Saltwater Trust, and transported excess wastes from the tanks at the Bridgewater site to two tanks at the Plymouth site. United States Complaint ¶ 92. Cannons also arranged with John Tinkham and companies under his control to take wastes from the holding tanks at the Cannons' Bridgewater facility and haul them elsewhere. Tinkham and his drivers took such wastes to sites in Nashua and Londonderry. United States Complaint ¶¶ 105, 119-129, 123-124.
During and since the times of disposal, there have been releases and threatened releases of hazardous substances into the environment at each of these four sites. United States Complaint ¶ 132. The United States Environmental Protection Agency ("EPA"), Massachusetts and New Hampshire have investigated the nature and characteristics of the hazardous substances found at each of these four sites. EPA has listed the Bridgewater, Plymouth, Nashua and Londonderry sites on the Superfund National Priorities List. United States Complaint ¶¶ 84-87, 94-99, 107-15, 126-128.
Section 122 of CERCLA, which was added to the law by the Superfund Amendments and Reauthorization Act of 1986, P.L. 99-499, § 101 et seq., 100 stat. 1613 ("SARA"), identifies several types of settlements which the United States may enter into with potentially responsible parties ("PRPs") in a CERCLA action. 42 U.S.C. § 9622. Under section 122, the United States generally may enter into a Consent Decree which provides for the PRPs to reimburse the United States for response costs incurred, or under which the PRPs agree to undertake response activities themselves. In such settlements, the United States may provide the settling parties with a covenant not to sue...
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