Ekotek Site PRP Committee v. Self

• Decision Date: 24 March 1995
• Docket Number: No. 94-C-277K.,94-C-277K.
• Citation: 881 F. Supp. 1516
• Parties: The EKOTEK SITE PRP COMMITTEE, Plaintiff, v. Steven M. SELF, et al., Defendants.
• Court: U.S. District Court — District of Utah

881 F. Supp. 1516

The EKOTEK SITE PRP COMMITTEE, Plaintiff, v. Steven M. SELF, et al., Defendants.

No. 94-C-277K.

United States District Court, D. Utah, Central Division.

March 24, 1995.

COPYRIGHT MATERIAL OMITTED

Lawrence J. Jensen, of Holland & Hart, Salt Lake City, UT, Robert M. Pomeroy, Jr., Paul D. Phillips, and Steven W. Black, of Holland & Hart, Denver, CO, for plaintiff.

Douglas J. Parry and Bret F. Fandall, of Parry, Murray, Ward & Moxley, Joy L. Clegg, of Snow, Christensen & Martineau, Salt Lake City, UT, Allan D. Brock, of Carter, Brock & Hinman, P.A., Boise, ID, for defendants.

MEMORANDUM AND ORDER

PATRICK F. KELLY, Chief Judge.

The present action arises from the operation of a used oil refinery in Salt Lake City, Utah. The refinery was owned from 1953 by the O.C. Allen Oil Company. In 1968, the refinery was purchased by Flinco, Inc., which owned the property until it was purchased in 1978 by Steven M. Self and Steven F. Miller, by means of their company, Ekotek, Inc., a Delaware corporation. Ekotek declared bankruptcy in 1987. The site was leased by Petrochem Recycling Corporation from 1987 until February of 1988, when all operations ceased after the Utah Bureau of Hazardous Waste and the Utah Bureau of Air Quality issued notices of various violations.

The Environmental Protection Agency (EPA) assumed control of the site in November of 1988 and began an emergency removal to abate the release of hazardous substances. The EPA subsequently listed the site pursuant to § 105 of the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), 42 U.S.C. § 9605, on the CERCLA National Priorities List (NPL), 40 CFR Part 300, App. B.

The main activity at Ekotek was the reprocessing of used motor oil, and over 90% of the material shipped to the site was used motor oil. There were approximately 60 above-ground storage tanks at Ekotek, many of which held used motor oil for reprocessing. A fire destroyed the Ekotek refinery in 1981, and it was rebuilt by Ekotek sometime in 1982. Prior to the fire, Ekotek had employed an acid-based process for recycling used oil. Afterwards, the company adopted a distillation process.

The reprocessing of used oil generates waste products, which include organic vapors emitted into the air, acid sludge, spent clay and distillation bottoms. Testing of the used oil at Ekotek showed that it had hazardous materials which were either absent from, or in greater concentrations than, unused petroleum products. The parties have stipulated that various hazardous substances were released into the soil and groundwater by Ekotek, including benzene, toluene, ethylbenzene and xylenes (or BTEX); polynuclear aromatic hydrocarbons (PAHs); polychlorinated biphenols (PCBs); chlorinated solvents; and heavy metals.

When used in internal combustion engines, motor oil becomes contaminated through the heat of the engine, the absorption of combustion products, and the addition of various metals to the oil due to wear on the engine's components. Of hazardous substances normally found in motor oil (lead and other heavy metals, benzo(a) pyrene, toluene), usage results in the higher concentration of these substances. Used motor oil also acquires hazardous substances not normally found in unused motor oil (including chlorinated solvents, cadmium, and other heavy metals).

The plaintiff Committee is composed of 49 corporations organized under the laws of various states. The Committee was formed in 1988 to respond to a notification from the EPA regarding the Ekotek site, and to negotiate with the EPA to undertake certain investigation and environmental response activities at the site. The liaison defendants are a group which includes other parties alleged to have contributed to the contamination of the Ekotek site.

The main motions now before the court are the competing motions for summary judgment filed on behalf of the plaintiff Committee and by the liaison defendants. In addition to the motion submitted by the liaison defendants, a large number of other defendants have submitted motions joining in whole or in part with the arguments advanced by the liaison defendants. American Barrel & Cooperage Co., Elton Hayner, Williams Refining Co., Coast Oil Co., G & K Service Inc. (Dkt. No. 249), H & M Oil Co. (Dkt. No. 256), Jet Star Industries, alleged to be Quaker State Franchise Site 1024 (Dkt. No. 258), Morrison Knudsen (Dkt. No. 263), Horne Construction (Dkt. No. 267), Buds Oil Svc. (Dkt. No. 268), Const. Rental & Sup. (Dkt. No. 282), Rocky Mountain Machinery Co. (Dkt. No. 288), All We Oil Co. (Dkt. No. 289).¹

In addition to the other arguments advanced in their motion for summary judgment, the liaison defendants also contend that various defendants should be dismissed since they have settled their liability with the EPA. The Committee has subsequently filed four notices of dismissal as to various settling defendants. Finally, a number of defendants have submitted motions which raise separate and independent issues. There have been two motions to dismiss for lack of personal jurisdiction. (Dkt. No. 130, Les Mai and the Grease Monkey; and Dkt. No. 155, Fuel Processors, Inc.). Three defendants have moved for summary judgment on the grounds that they are dissolved corporations without assets and therefore are not subject to liability under CERCLA. (Dkt. No. 234, B & R Oil Inc. and Halverwood Co.; and Dkt. No. 265, Jet Star, Inc.). Another defendant has moved for summary judgment on the ground that it did not contribute to any of the contamination of the Ekotek site or the surrounding area. (Dkt. No. 261, Bloomfield Refining).

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

On February 13, 1995, the court conducted a hearing in which the parties were extended the opportunity to present argument relating to the various motions before the court. The court has subsequently withheld any ruling in the matter until the final disposition of the matter in United States v. Colorado & Eastern Rd. Co., 50 F.3d 1530 (10th Cir.1995). With the filing of this opinion by the Court of Appeals, this court will now address the matters submitted herein.

Section 107 Action

The parties have filed competing motions over the issue of whether a potentially responsible party, such as the Committee, can bring an action under CERCLA § 107(a). In addition to bringing a motion for summary judgment premised in part on the issue, the liaison defendants have also filed a motion to dismiss raising the same issue. The liaison defendants contend that, as a potentially responsible party, the Committee is limited to an action for contribution under § 113(f). The Committee argues that it is entitled to bring the present action under either portion of the statute.

Most of the reported decisions addressing the issue have occurred at the district court level. One group of decisions has concluded that a responsible party is not barred from bringing an action under § 107(a). See Companies for Fair Alloc'n v. Axil Corp., 853 F.Supp. 575, 579 (D.Conn.1994); United States v. SCA Serv. of Indiana, Inc., 849 F.Supp. 1264, 1270 (N.D.Ind.1994); Barton Solvents, Inc. v. Southwest Petro-Chem, Inc., Case No. 91-2382-GTV, 1993 WL 382047 at 2 (D.Kan. Sept. 14, 1993); Chesapeake & Potomac Telephone Co. of Va. v. Peck Iron & Metal, 814 F.Supp. 1269, 1277 (E.D.Va.1992); Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F.Supp. 1100, 1118 (N.D.Ill.1988); Chemical Waste Mgt. v. Armstrong World Indus., 669 F.Supp. 1285, 1292 (E.D.Pa. 1987). These decisions have rested on the finding that § 107(a)'s language permitting an action to be brought by "any other person" is not limited by any provision in the statute, and should be read literally to include responsible parties. Other courts have rejected this conclusion and held that a responsible party may not bring an action under § 107(a). United...