In re Acushnet River & New Bedford Harbor

• Decision Date: 12 October 1989
• Docket Number: Civ. A. No. 83-3882-Y.
• Citation: 722 F. Supp. 893
• Court: U.S. District Court — District of Massachusetts
• Parties: In re ACUSHNET RIVER & NEW BEDFORD HARBOR: PROCEEDINGS RE ALLEGED PCB POLLUTION.

722 F. Supp. 893

In re ACUSHNET RIVER & NEW BEDFORD HARBOR: PROCEEDINGS RE ALLEGED PCB POLLUTION.

Civ. A. No. 83-3882-Y.

United States District Court, D.Massachusetts.

October 12, 1989.

Ellen M. Mahan, William D. Brighton, Environmental Enforcement Section, Land and Natural Resources Div., Washington, D.C., Martha Sosman, Chief, Civ.Div., U.S. Attys. Office, Boston, Mass., for U.S.

Lee Breckenridge, Chief, Nancy Preis, Asst. Attys. Gen., Environmental Protection Div., Dept. of the Atty. Gen., Boston, Mass., for Com. of Mass.

Charles C. Bering, Office of Regional Counsel, U.S. EPA-Region I, Boston, Mass., Alice Crowe, OECM-Waste, LE 134S, U.S. EPA Headquarters, Washington, D.C., for U.S. E.P.A.

Hugh Schratwieser, Office of Gen. Counsel, Washington, D.C., for Nat. Oceanic and Atmospheric Admin.

Daniel J. Gleason, Mary K. Ryan, Brian T. Kenner, Nutter, McClennan & Fish, Boston, Mass., for AVX Corp.

Paul B. Galvani, Roscoe Trimmier, Jr., Ropes & Gray, Boston, Mass., for Aerovox, Inc.

David A. McLaughlin, Michael J. McGlone, McLaughlin & Folan, New Bedford, Mass., for Belleville Industries, Inc.

Verne Vance, Jr., Richard W. Benka, Foley, Hoag & Eliot, Boston, Mass., for Cornell Dubilier Electronics Co., Inc.

John R. Quarles, Howard T. Weir, Morgan, Lewis & Bockius, Washington, D.C., for Federal Pacific Elec. Co.

Robert J. Muldoon, Jr., Daniel B. Winslow, Barbara O'Donnell, Sherin & Lodgen, Boston, Mass., for Aerovox, Inc. (Ins. Litigation).

William M. Savino, Gary D. Centola, Rivkin, Radler, Dunne & Bayh, Uniondale, N.Y., Cynthia J. Cohen, Michael B. Bogdanow, Meehan, Boyle & Cohen, Boston, Mass., for Firemen's Fund Ins. Co.

James L. Ackerman, Day, Berry, Howard, Boston, Mass., Thomas J. Groark, Jr., Day, Berry & Howard, Hartford, Conn., for Aetna Cas. and Sur. Co.

John P. Ryan, Sloan & Walsh, Boston, Mass., for Hartford Ins. Co.

Michael S. Greco, Lisa D. Campolo, Hill & Barlow, Boston, Mass., Timothy C. Russell, T. Andrew Culbert, Drinker, Biddle & Reath, Washington, D.C., for Lumbermen's Mut. Cas. Co. and American Motorists Ins.

Stephen J. Paris, Michael F. Aylward, Morrison, Mahoney & Miller, Boston, Mass., for CNA Ins. Co. and Reliance Ins. Co.

Roger E. Warin, Stephen A. Fennell, Anita G. Raby, Steptoe & Johnson, Washington, D.C., for Highlands Ins. Co.

Wm. Gerald McElroy, Jr., John T. Harding, Jr., Zelle & Larson, Waltham, Mass., for Employers Ins. of Wausau.

James P. Whitters, III, Gaston & Snow, Boston, Mass., for Liberty Mut. Ins. Co.

Bert J. Capone, Deborah S. Griffin, Peabody & Arnold, Boston, Mass., for Home Ins. Co. and Lexington Ins. Group.

Robert F. Corliss, Robert A. Romero, Jr., Corlis & Romero, Boston, Mass., Mary Ann D'Amato, Paul Moran, Mendes & Mount, New York City, for Underwriters at Lloyd's.

Pamela C. Slater, Allan E. Taylor, Taylor, Anderson & Travers, Boston, Mass., for First State Ins. Co.

Timothy P. Wickstrom, Tashjian, Simsarian & Wickstrom, Worcester, Mass., for Mission Ins. Co.

Calum B. Anderson, Parker, Coulter, Daley & White, Boston, Mass., for Northbrook Excess & Surplus Ins. Co.

Carl K. King, Gayle M. Merling, Goldstein & Manello, Boston, Mass., for EPEC, Inc.

Erik D. Olson, Counsel, Nat. Wildlife Federation, Washington, D.C., for Nat. Wildlife Federation.

David P. Rosenblatt, Burns & Levinson, Boston, Mass., for Plating Technologies.

MEMORANDUM ON FEDERALLY PERMITTED RELEASES¹

YOUNG, District Judge.

Before the Court are three motions concerning releases of polychlorinated biphenyls ("PCB's") by two of the defendants in these matters, Belleville Industries, Inc. ("Belleville") and Aerovox, Inc. ("Aerovox"). In the first motion, AX-13, Aerovox seeks partial summary judgment with respect to the sovereigns' claim for natural resource damages because, it argues, its releases were federally permitted by an Environmental Protection Agency ("EPA") permit issued pursuant to Section 402 of the Clean Water Act.² 33 U.S.C. sec. 1342. As such, Aerovox argues, subsection 107(j) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") denies a remedy for such permitted discharges. 42 U.S.C. sec. 9607(j) (providing that "recovery by any person including the United States or any state for response costs or damages resulting from a federally permitted release shall be pursuant to existing law in lieu of this section").

While much is disputed in these motions — e.g., whether the discharges into the New Bedford sewer system, discharges resulting from storm water runoff, and discharges via the South Trough and the transite pipe are shielded from CERCLA liability by subsection 107(j) — Aerovox does not appear to dispute that any discharges originating from rusting capacitors placed on the tidal mud flats³ of the Aerovox facility are not federally permitted. See Supplemental Memorandum of Aerovox Incorporated With Regard to Federally Permitted Releases (Docket # 1209) at 4-5. Aerovox does, however, deny that the sovereigns have set forth any facts showing that any PCB's have migrated from the capacitors off the property of the facility since October, 1978 when Aerovox purchased the facility or that, if such migration occurred, such non-federally permitted PCB's were distinguishable from any permitted PCB's and caused a unique, severable harm to the natural resources. See Memorandum of Aerovox Incorporated In Support of Its Motion for Summary Judgment With Respect to Federally Permitted Releases (Docket # 769) at 33.

This Court rules that the sovereigns have set forth evidence of genuine issues of material fact sufficient to survive summary judgment.

First, there is evidence that defective capacitors containing PCB's were dumped on the tidal mud flats portion of the facility by employees of (at least) defendant AVX Corporation⁴ in the 1950s and 1960s and that such capacitors have rusted and corroded over time, releasing PCB's into the water and the sediments. See, e.g., Belleville's Responses to Requests for Admissions ("Belleville's Responses"), Nos. 1076-78; 1089-90, 1092-93; Aerovox's Responses to Requests for Admissions ("Aerovox's Responses"), Nos. 1076-78; 1089-93, 1100; Deposition of Clifford Tuttle ("Tuttle Dep.") at 3-43-44, 3-56.⁵ Indeed, by 1981 there is evidence that, while Aerovox owned the facility, some capacitors remained whole, although rusted, while others appeared to have largely disintegrated. See Belleville's Responses, No. 5376.

It is a fair inference that, on the present record, when these capacitors rust through, some PCB's escape directly into the water column while others escape into the sediments. As for the latter type of release, studies conducted by the sovereigns indicate that PCB's in sediment taken from the mud flats leach into the water column to varying degrees in the presence of either agitated or quiescent water. Attachment V.C. RA5-006 to Sovereigns' Requests for Admissions No. 1661. The fair inference from this evidence is that nonfederally permitted PCB's from the dumped capacitors have been escaping and continue to escape from rusted-through capacitors into the water column during Aerovox's ownership, either directly or via sediments.⁶ Thus, these capacitors seem likely to account for at least a portion of the PCB's in the sediments of the mud flats and the waters of the New Bedford Harbor (the "Harbor").⁷

Admittedly, it is undisputed that some PCB's in the Harbor came from federally permitted releases. The sovereigns do not appear to dispute that some, if not all, of the PCB's discharged through the North Trough after December 30, 1976 are federally permitted releases. Nevertheless, if the sovereigns establish at trial that non-federally permitted releases by Aerovox were a contributing factor⁸ to an injury to natural resources and produce evidence that the injury is indivisible, Aerovox will be jointly and severally liable for all the resulting injury unless it can prove that the injury is divisible.⁹ O'Neil v. Picillo, 883 F.2d 176, 178-179 (1st Cir.1989). See United States v. Monsanto Co., 858 F.2d 160, 172 (4th Cir.1988) (holding that the burden of proving divisibility in a CERCLA action is on the defendants); United States v. Tyson, No. 84-2663 (1988 WL 7163 at 4) (E.D. Pa. Jan. 29, 1988) (same); United States v. Chem-Dyne, 572 F.Supp. 802, 810 (S.D.Ohio 1983) (same).

The present record does not reveal whether the nonfederally permitted releases from the capacitors on the tidal mud flats alone (or indeed in combination with the various other PCB's released by Belleville or Aerovox, the permitted or unpermitted nature of which is disputed) constitute a contributing factor to an indivisible harm. While Aerovox correctly points out that this is a matter on which the burden of proof is borne by the sovereigns (with the exception of the divisibility issue),¹⁰ upon the current state of the record this Court is nonetheless left to speculate to what extent the existence of the federally permitted releases will absolve Aerovox from liability.¹¹ In such circumstances, the better part of valor seems to be to withhold definitive legal exposition of such factually based issues until a complete record has been developed at trial.¹² Aerovox's motion for partial summary judgment, AX-13, will therefore be denied.

In the second motion before the Court, US-18, the sovereigns seek, inter alia, partial summary judgment with respect to Belleville's Eleventh, Thirteenth and Fifteenth defenses which also essentially invoke subsection 107(j). It is clear to this Court on the present record that (i) as previously observed, some PCB's in the Harbor are federally permitted and (ii) that a genuine issue of material fact exists whether non-federally permitted PCB discharges (the capacitor-related releases) occurred during Belleville's ownership of the facility. With respect to the latter point, the Court rules that a fact finder could conclude that in 1981, less than three years after Belleville had sold...