Kelley v. Thomas Solvent Co.

Decision Date13 December 1989
Docket NumberK86-167.,No. K86-164,K86-164
Citation727 F. Supp. 1532
PartiesFrank J. KELLEY, Attorney General of the State of Michigan; and the State of Michigan, Plaintiffs, v. THOMAS SOLVENT COMPANY; Thomas Development, Inc.; Thomas Solvent Company of Detroit, Inc.; Thomas Solvent Company of Muskegon, Inc.; Thomas Solvent, Inc. of Indiana; TSC Transportation, Inc.; Richard E. Thomas; and Grand Trunk Western Railroad Company, Defendants. and GRAND TRUNK WESTERN RAILROAD COMPANY, Counter Plaintiff, v. Frank J. KELLEY, Attorney General of the State of Michigan; and the State of Michigan, Counter Defendants. and GRAND TRUNK WESTERN RAILROAD COMPANY, Cross Plaintiff, v. THOMAS SOLVENT COMPANY; Thomas Development, Inc.; Thomas Solvent Company of Detroit, Inc.; Thomas Solvent Company of Muskegon, Inc.; Thomas Solvent, Inc. of Indiana; TSC Transportation, Inc.; and Richard E. Thomas, Cross Defendants. and THOMAS SOLVENT COMPANY and Richard Thomas, Counter Plaintiffs, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Counter Defendant. and GRAND TRUNK WESTERN RAILROAD COMPANY, Third-Party Plaintiff, v. Richard E. THOMAS, as Trustee of The Richard E. Thomas Living Trust; the Richard E. Thomas Living Trust; and Letha Thomas, Third-Party Defendants. UNITED STATES of America, Plaintiff, v. THOMAS SOLVENT COMPANY; Thomas Development, Inc.; Thomas Solvent Company of Detroit, Inc.; Thomas Solvent Company of Muskegon, Inc.; Thomas Solvent, Inc. of Indiana; TSC Transportation Company; Richard E. Thomas, and Grand Trunk Western Railroad Company, Defendants. and GRAND TRUNK WESTERN RAILROAD COMPANY, Cross Plaintiff, v. THOMAS SOLVENT COMPANY; Thomas Development, Inc.; Thomas Solvent Company of Detroit, Inc.; Thomas Solvent Company of Muskegon, Inc.; Thomas Solvent, Inc. of Indiana; TSC Transportation Company; and Richard E. Thomas, Cross Defendants. and THOMAS SOLVENT COMPANY and Richard Thomas, Counter Plaintiffs, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Counter Defendant. and GRAND TRUNK WESTERN RAILROAD COMPANY, Third-Party Plaintiff, v. Richard E. THOMAS as Trustee of The Richard E. Thomas Living Trust; Richard E. Thomas Living Trust; and Letha Thomas, Third-Party Defendants.
CourtU.S. District Court — Western District of Michigan

COPYRIGHT MATERIAL OMITTED

Frank J. Kelley, Atty. Gen. by Robert P. Reichel, Asst. Atty. Gen., Environmental Protection Div., Lansing, Mich., for plaintiffs and counter defendants.

Foster, Swift, Collins & Coey, P.C. by Charles E. Barbieri, John L. Collins, Lansing, Mich., for Thomas Solvent Co. and Richard E. Thomas.

Sullivan, Hamilton & Schulz by James M. Sullivan, Battle Creek, Mich., for Thomas Solvent Co. of Detroit, Inc., Thomas Solvent, Inc. of Indiana, TSC Transp. Inc., Thomas Solvent Co. of Muskegon, Inc. and Thomas Development, Inc.

Bodman, Longley & Dahling by Frederick J. Dindoffer, R. Craig Hupp and Mary P. Sclawy, Detroit, Mich., for Grand Trunk Western R. Co.

John S. Smietanka, U.S. Atty. by Julie Ann Woods, Asst. U.S. Atty., Grand Rapids, Mich., Joel M. Gross and Steven J. Willey, Environmental Enforcement Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C. (Roger Grimes and Jesse A. Goldfarb, Asst. Regional Counsel, U.S. E.P.A., Chicago, Ill., of counsel), for the U.S.

Bremer, Wade, Nelson & Alt by Michael D. Wade, Grand Rapids, Mich., for Great American Surplus Lines Ins. Co.

Farr & Oosterhouse by Kenneth R. Oosterhouse, Grand Rapids, Mich., amicus curiae, for General Foods Corp., Essex Group, Inc., BASF Corp., Tyler Refrigeration Corp., G.F. Corp., Clark Equipment Co., Reichold Chemical, Inc., Miles Laboratory, Inc., Hoover Universal, Inc., Starcraft Corp., Lear Siegler, Inc., Twin Y Corp. and Acme Printing Ink Co.

Patton, Boggs & Blow by J. Gordon Arbuckle, John C. Martin and David J. Farber, Washington, D.C., amicus curiae, for General Foods Corp., Essex Group, Inc. and BASF Corp.

OPINION

ENSLEN, District Judge.

Currently before me is a motion for partial summary judgment filed on January 27, 1988 by plaintiffs, the United States and the State of Michigan, to establish the joint and several liability of defendants Thomas Solvent Company ("Thomas Solvent"), Richard E. Thomas ("R. Thomas"), and Thomas Development Company ("Thomas Development") for response costs incurred by plaintiffs after groundwater contamination was discovered in Battle Creek, Michigan. While this motion was also originally brought against Grand Trunk Western Railroad Company ("Grand Trunk") as well, plaintiffs and defendant Grand Trunk entered into a partial consent decree and judgment in June of 1989 which established Grand Trunk's liability for contamination of three Battle Creek sites — the Verona Well Field, the Annex, and the Marshalling Yard. Plaintiffs seek a judgment that defendants Thomas Solvent, R. Thomas, and Thomas Development are jointly and severally liable for plaintiffs' response costs, but they do not at this time ask for a determination of the amount of recoverable costs.

BACKGROUND
FACTS

Many of the facts in this case are not in serious dispute. The following is a summary of the important background facts; other facts will be discussed in the context of the liability issues.

Verona Well Field

The Verona Well Field provides the primary public water supply to over 35,000 residents — in addition to industries and commercial establishments in and around Battle Creek, Michigan. The Well is located in the northeast corner of the City. The Well Field consists of three wells on the west side of the Battle Creek River and thirty wells and a major water pumping station on the east side of the River. As part of the normal operation of the Well Field, water produced from the individual supply wells is collected and mixed by one integrated system into a single, main supply line.

In August 1981, the Calhoun County Health Department collected, and the Michigan Department of Public Health ("MDPH") laboratory analyzed, a water supply sample from a church located at 475 North Washington Street, Battle Creek. That analysis detected several volatile organic chemicals. After the MDPH determined that the water in question was supplied by the City of Battle Creek water system, the MDPH collected and analyzed water samples from the Verona Well Field. That initial sampling of the Verona Well Field detected volatile hydrocarbons, including trichloroethylene (TCE); 1, 2 dichloroethylene (1, 2 DCE); perchloroethythene (PCE, also referred to as tetrachloroethylene); and 1, 1, 1 tricholorethane (1, 1, 1 TCA).

MDPH began periodic sampling of the combined Verona Well Field supply line and of individual supply wells within the Field in September 1981. At that time, ten of the then-existing supply wells were found to be contaminated. The City, in consultation with the MDPH, thereafter removed several contaminated wells from service. Beginning in October 1981, as part of the effort to determine the contamination affecting the Verona Well Field, the Calhoun County Health Department and the MDPH collected and analyzed samples from numerous private residential and commercial water supply wells in the vicinity of the Well Field. By June 1982, that testing detected various volatile hydrocarbons in more than seventy private wells in the area. MDPH and the County Health Department provided written notice of the contamination to the well owners involved and advised them not to use the water for drinking, cooking, and where concentrations were especially high, bathing.

Then, in late 1981, the Michigan Department of Natural Resources ("MDNR") initiated an investigation to determine the sources of the groundwater contamination. Investigators inspected the industrial and commercial facilities using solvents in the vicinity of the Verona Well Field, collecting and analyzing soil samples from those facilities. The MDNR identified potential sources of the contamination, which included facilities of the defendants, Thomas Solvent and Grand Trunk, commonly referred to as the "Annex" and "Raymond Road" facilities.

At the State's request, the Environmental Protection Agency ("EPA") provided a Technical Assistance Team ("TAT") to assist in the investigation. In February and March 1982, the TAT contractor installed several groundwater monitoring wells to determine the extent and source of the contamination. The June 1982 TAT report, showed a plume (or plumes) of groundwater contamination in the Verona Well Field and surrounding area which emanated from the vicinity of the Annex and Raymond Road facilities. In June and July 1982, the MDNR and a consultant retained by Thomas Solvent collected and analyzed soil samples from those two sites. Both sets of those analyses confirmed that volatile hydrocarbons had been released into soils at the Annex and Raymond Road sites.

Raymond Road Facility

From its incorporation in 1963, until 1984, defendant Thomas Solvent operated a facility located at 1180 North Raymond Road in Battle Creek as its principal place of business. It was engaged in the business of selling and transporting industrial solvents and other chemicals and transporting liquid industrial wastes to recycling and disposal facilities. The Raymond Road facility included an office building, a warehouse, a dock used for storing drums, an area used for mixing chemicals and twenty-one underground storage tanks ranging between 4,000 and 15,000 gallons in capacity.

Hazardous substances were released into soils and groundwaters at the Raymond Road site. Deposition testimony of Richard Thomas and former Thomas Solvent employees suggests that such releases occurred through various means, including: dumping solvents on the ground, rinsing out drums, leaking and spilling from transfer hoses, over-filling storage tanks and rinsing out tank trucks. A plume or plumes of groundwater contamination emanating from the Raymond Road site has polluted groundwaters in and around the Verona Well Field. Defendant Thomas Development owned the...

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