General Elec. Co. v. Litton Business Systems, Inc.
| Decision Date | 20 June 1989 |
| Docket Number | No. 87-3333-CV-S-4.,87-3333-CV-S-4. |
| Citation | 715 F. Supp. 949 |
| Parties | GENERAL ELECTRIC COMPANY, Plaintiff, v. LITTON BUSINESS SYSTEMS, INC., Defendant. |
| Court | U.S. District Court — Western District of Missouri |
James L. Moeller, William F. Ford, Gage & Tucker, Kansas City, Mo., for plaintiff.
Mathew W. Placzek, Joyner, Placzek & Francis, Springfield, Mo., for defendant.
Plaintiff brought this action against defendant for recovery of costs pursuant to 42 U.S.C. § 9607(a) of the Comprehensive Environmental Response, Compensation & Liability Act of 1980 (CERCLA). This case was tried to the Court without a jury from May 15, 1989 through May 18, 1989. Pursuant to Rule 52, Fed.R.Civ.P., the Court makes the following findings of fact and conclusions of law.
1. Litton Industrial Automation Systems, Inc., Litton Business Systems, Inc., and Litton Industries, Inc., are successors by merger to Royal McBee Corporation, a New York corporation, and its subsidiary Royal Typewriter (hereinafter jointly referred to as "Royal McBee").
2. Royal McBee operated a typewriter manufacturing facility at 2401 East Sunshine Street, Springfield, Missouri, between 1959 and 1965.
3. In 1965, pursuant to an agreement of merger, Royal McBee merged with Litton Industries, Inc. ("Litton"), a Delaware corporation, and Litton became the surviving corporation.
4. At about the same time, the assets and liabilities of Royal McBee were acquired by the Royal Typewriter Company, Inc., a division and wholly owned subsidiary of Litton which continued to operate the typewriter manufacturing business at the same location until approximately July 1967.
5. In approximately July 1967, Litton merged its wholly owned subsidiary, Royal Typewriter Company, Inc., into some other Litton wholly-owned subsidiaries, the survivor of which became known as Litton Business Systems, Inc. ("LBSI"), a New York corporation.
6. LBSI closed the Royal business at 2401 East Sunshine Street in 1969. GE purchased the Royal McBee building at 2401 East Sunshine in March, 1970.
7. During the period from 1958 through March, 1970, Royal McBee, Royal Typewriter Company, Inc. and LBSI also owned a tract of vacant land immediately north of Sunshine and adjoining the Royal McBee typewriter facility to the immediate west. In March, 1970, LBSI conveyed this tract (Sunshine property) to GE as part of the transaction involving the manufacturing plant.
8. Effective August 1, 1988, Litton merged LBSI into Litton Industrial Automation Systems, Inc. ("LIASI"), a Delaware corporation, and LIASI assumed all of the obligations and liabilities of LBSI.
9. Litton and LIASI currently are both duly authorized and existing corporations under the laws of the State of Delaware.
10. In 1958 Royal McBee purchased land near the intersection of Sunshine and Glenstone streets in Springfield, Missouri for a plant. Royal McBee used its plant to manufacture Royal typewriters.
11. As a byproduct of its manufacturing process, Royal McBee generated cyanide-based electroplating wastes, sludge from the bottom of electroplating tanks and spent plating bath solution.
12. As a part of their duties, Royal McBee employees poured, emptied and dumped the electroplating sludge, tank bottoms and spent plating solution onto the soil surface of the vacant western portion of the Sunshine property during the period 1959-1962 in an area near a "turn-around" at the end of an old construction road on the property.
13. Over time, the metals and cyanide from the wastes dumped by Royal McBee leached and migrated outward and downward from the original dumping location, thus accounting for the larger area ultimately cleaned up.
14. Currently, the vacant western portion of the property containing the site is adjacent to an apartment complex on the west, a housing development on the north, and GE's (formerly Royal McBee's) building on the east. The vacant western portion of the property containing the site fronts on Sunshine Street, a major east/west thoroughfare in Springfield and was one of the last pieces of vacant property on Sunshine between Glenstone Avenue and Highway 65. There is commerce, including retail, manufacturing, restaurant, and housing all around the property. Since the site has been cleaned up, the property has been subdivided and is currently scheduled to be commercial, retail and light industrial property. The gradient of the contaminated area of the site is southwest toward the treeline and apartment complex.
15. The same wastes which were disposed of on the site from 1959-1962 were disposed of by Royal McBee and Litton at the Fulbright landfill in Springfield, Missouri beginning in 1962 when the Fulbright landfill opened (Plaintiff's Exhibit No. 99).
16. There is no evidence that GE dumped any electroplating wastes, or wastes containing the chemicals listed above on the site or the property.
17. In the summer of 1980, when the Missouri Department of Natural Resources ("MDNR") was investigating the defendant's Fulbright dumping activities, GE first learned of Royal McBee's dumping of hazardous wastes on the site. MDNR investigators sought and received GE's permission to interview former Royal McBee workers whom GE then employed. During these interviews at GE's plant, the employees described how they dumped Royal McBee's cyanide-based electroplating solutions and residues on the ground at the Fulbright landfill and on the Sunshine property.
18. In 1981, based on testing done by the MDNR and GE, and the then present technology and health assessments, it was GE's and MDNR's opinion that there was no potential for contamination of the groundwater at the site. In 1984 GE agreed to sell the vacant tract of the property including the site (approximately 19 acres) to an investment group which subsequently assigned the property to Enterprise Park.
19. On July 19, 1985, the MDNR proposed registry of the GE site on Missouri's Registry of Abandoned and Uncontrolled Hazardous Waste Sites in Missouri. On August 16, 1985, GE appealed the proposed registry of the site on Missouri's Registry of Abandoned and Uncontrolled Hazardous Waste Sites. Litton was notified of potential CERCLA claims in August, 1985, but did not participate in any of the negotiations.
20. Pursuant to statute, the Missouri Hazardous Waste Commission reviews the status of all sites proposed for the registry which have been appealed. The GE site was discussed at the Hazardous Waste Management Commission meeting on at least three occasions both before and during the course of the clean-up at the site. These Hazardous Waste Management Commission meetings were public meetings of which there was prior published public notice and at which members of the public attended. See plaintiff's Exhibit No. 248.
21. On October 15, 1985, John Crellin, Director of the Bureau of Epidemiology of the Missouri Department of Health ("DOH"), stated that the concentrations of metal in the soil at the Site "represented a significant health threat and contaminated soil should be removed." Dr. Crellin's health assessment also stated that (Plaintiff's Exhibit No. 1).
22. In October 1985, GE hired OH Materials Company of Findlay, Ohio, an experienced environmental services company, to investigate, assess, monitor and conduct any response actions which were determined to be necessary.
23. On December 20, 1985 the Environmental Protection Agency ("EPA"), found that enforcement action was needed by Missouri for the GE site and that "review of old data revealed that what was considered to be trace amounts in 1981 are now acknowledged as representing a threat to human health and the environment." (Plaintiff's Exhibit No. 220).
24. Throughout the latter part of 1985 and 1986, GE and MDNR engaged in extensive studies of the site and negotiations over its remediation. These discussions culminated in a Consent Decree entered into before the Missouri Hazardous Waste Management Commission which set forth the circumstances and requirements for ongoing remediation of the site. The Decree was executed by GE, by Enterprise Park, by the Missouri Attorney General's office, and by Frederick A. Brunner, Ph.D., the Director of MDNR. In general, the Decree was implemented "to protect the public health and environment from releases or threatened releases of waste materials, if any, from the site through the development, design and implementation of a remedial action plan." (Plaintiff's Exhibit No. 158).
25. The Consent Decree required all remedial action for the site to be "consistent with the National Contingency Plan "NCP"." The Consent Decree required MDNR approval of all remedial action.
26. Testing of the soil at the Sunshine property showed that the concentration of metals from three feet deep to the soil surface were considerably above the background levels (i.e. normal soil levels) for the site and many times higher than the safe soil levels determined by the Department of Health. Test results from all of the testing which was performed at the site confirmed that the metals found on the site — copper, chrome, nickel, zinc, lead, and cyanide — were not there from natural causes but were elevated, concentrated and associated with one another, thus indicating that the property was a disposal site, and that the levels of these heavy metals were greater than background levels.
27. GE had OH Materials investigate a range of alternatives for response actions at the site, to insure the response actions ultimately taken would be consistent with the NCP and Consent Decree.
28. OH Materials produced a Remedial Alternatives Evaluation for the...
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