South Carolina Dept. of Health and Environmental Control v. Fed-Serv Industries, Inc.
| Decision Date | 09 November 1987 |
| Docket Number | No. 1039,FED-SERV,1039 |
| Citation | 362 S.E.2d 311,294 S.C. 33 |
| Court | South Carolina Court of Appeals |
| Parties | SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Respondent, v.INDUSTRIES, INC., Conservoil, Inc., AAA Waste Oil, Inc., Joe Girlardo, Fleet Transport, Inc., Defendants, of whom Fleet Transport, Inc. is Appellant. Appeal of FLEET TRANSPORT, INC. |
Elizabeth A. Carpentier and Inez Moore Tenenbarm, both of Sinkler and Boyd, Columbia; and J. Rutledge Young, Jr., Charleston, for appellant.
General Counsel Walton J. McLeod, III, Asst. Gen. Counsel Jacquelyn S. Dickman, and Sp. Counsel John Adams Hodge, Columbia, for respondent.
Shawn D. Wallace, of McKay & Guerard, P.A., Columbia, for Fed-Serv.
Lawrence A. Dodds, Jr., of Dodds & Hennessey, Charleston, for AAA Waste Oil, Inc., and Girlardo.
The South Carolina Department of Health and Environmental Control (DHEC) brought an action against Fleet Transport, Inc. (Fleet) and others alleging violation of the Hazardous Waste Management Act. Fleet demurred, moved to strike portions of the complaint and moved to add parties defendant. Fleet appeals from an order overruling the demurrers and denying all of its motions. We affirm.
On September 14, 1984, DHEC filed a complaint against Fleet, Fed-Serv Industries, Inc., Conservoil, Inc., AAA Waste Oil, Inc. and Joe Girlardo alleging the following- : Defendant Fed-Serv contracted with the United States Navy to perform maintenance and service on oil storage tanks located in Charleston, South Carolina. Fed-Serv subcontracted with Girlardo, owner of AAA Waste Oil, to remove oil from the Navy's property as agent of Fed-Serv. Girlardo rented bulk oil transport tankers from Fleet to transport the oil. Some of the oil was transported from the Navy's property to property in Charleston owned by defendant Conservoil. Conservoil and Fed-Serv were both owned by one Jerry Luckow, now deceased, and DHEC alleges Conservoil is the alter ego of Fed-Serv. Manifests indicate the oil was to go to Alternate Energy Resources, Inc. in Georgia. DHEC claims that 5,000 gallons are unaccounted for, and Fed-Serv and/or Girlardo discharged waste oil and residue from the Conservoil property to adjacent property. DHEC also alleges the release of waste oil, creosote (a known human carcinogen), and residue into the environment surrounding the Conservoil site has already occurred.
The complaint seeks a preliminary injunction and declarations that defendants clean up the property, declarations that defendants have violated the Hazardous Waste Management Act and accompanying regulations, and civil penalties of $25,000 per day.
On October 29, 1984, Fleet demurred to the complaint on the grounds that necessary parties Luckow and the United States Navy were not named as parties defendant and that the alleged hazardous substance released was exempt under the Hazardous Waste Management Act. Fleet also moved to strike the references to creosote in the complaint and moved, in the alternative to the demurrer, to add as additional parties defendant the United States Navy, the Estate of Gerald Luckow, and Koppers Industries, the prior owner of the Conservoil property.
The circuit court held the Navy and Luckow were not necessary and indispensable parties, waste oil was not exempt under the Act, DHEC pled the issues relating to creosote in such a manner as to put Fleet on notice of the allegations to be proved at trial. The court therefore overruled the demurrer and denied motion to strike. It further denied the motion to add parties defendant since DHEC intended to voluntarily amend its complaint to add Luckow and DHEC asserted no cause of action existed against the Navy or Koppers at that time.
Fleet contends the circuit court erred in overruling its demurrer claiming there was a defect of parties defendant since Luckow and the Navy were not made defendants. According to the complaint, the Navy generated the oil and Luckow managed and controlled Fed-Serv and Conservoil, the companies accused of discharging the waste oil. Fleet also argues the circuit court erred in denying its alternative motion to add the Navy, Luckow and Koppers Industries as parties defendant.
DHEC Reg. 61-79.4(c), Vol. 4, Issue No. 5, State Register (March 31, 1980), provides in part in the event of a spill of hazardous waste "the generator, transporter, treatment, storage, or disposal facility or other person having control over or physical possession of such waste shall clean up all the spilled hazardous waste...." Fleet contends under this regulation DHEC must join all liable parties in this action. We disagree. The regulation specifically uses the disjunctive conjunction "or" instead of the conjunctive "and" implying any such persons could be solely liable for the clean up. Although DHEC admits the Navy, Luckow and Koppers Industries are potentially liable under its regulations, potential liability does not make one a necessary or indispensable party. This state has consistently held "one who asserts a cause of action arising out of a joint tort may, at his election, assert it against one or more or all of the joint tort-feasors." Insurance Financial Services, Inc. v. The South Carolina Insurance Company, 275 S.C. 155, 160, 268 S.E.2d 113, 116 (1980). Fleet argues because there is no right of contribution among joint tort-feasors, it will be without recourse if found liable since the cost of clean up would not be shared with other potentially responsible parties.
Under the rules of civil procedure applicable at the time this case arose, a defendant could demur to the complaint when it appeared on the face of the complaint that there was a defect of parties. S.C. Code Ann. Section 15-13-320(4) (1976), (repealed 1985). However, the omission of a party who might be a proper party does...
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