State of Vt. v. Staco, Inc.
| Decision Date | 06 January 1988 |
| Docket Number | Civ. A. No. 86-190. |
| Citation | 684 F. Supp. 822 |
| Parties | STATE OF VERMONT, Village of Poultney v. STACO, INC., Chase Instruments Corporation, Chase Instruments Sales Corporation, Keeper Corporation, Robert Sirkus, I. Walter Munzer, Robert Munzer. |
| Court | U.S. District Court — District of Vermont |
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Mark DiStefano and Denise R. Johnson, Asst. Attys. Gen., Montpelier, Vt., for State of Vt.
Stephen A. Dardeck, Tepper & Dardeck, Rutland, Vt., for Village of Poultney.
John Webber, Hull, Webber & Reis, Rutland, Vt., Benjamin R. Pratt, Jr., Miller, Mannix, Lemery & Pratt, P.C., Glens Falls, N.Y., for defendants.
The plaintiffs, State of Vermont and the Village of Poultney, Vermont, have invoked federal jurisdiction as granted to the district court by 28 U.S.C. § 1331, the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq. and the Resource Conservation and Recovery Act of 1976 as amended (RCRA), 42 U.S.C. § 6901, et seq. Pendent jurisdiction is asserted to adjudicate state claims under the provisions of the Vermont Waste Management Act, 10 V.S.A. § 6601, et seq. related Vermont statutory enactments, and the common law of nuisance. The main objective of the proceedings is to recover response costs incurred to date and achieve the cleanup and removal of mercury as a hazardous substance alleged to be contaminating the Poultney Sewage Treatment Facility, the connecting municipal sewer lines, and certain privately owned septic systems.
The source accused of the alleged contamination is the defendant Staco, Inc., a manufacturing company that formerly produced mercury thermometers at a plant in Poultney. The plant has been closed since June 1984. The other corporate defendants, Chase Instruments Corporation, Chase Instruments Sales Corporation and Keeper Corporation are joined as members of a family commercial enterprise that included the operation and ownership of the Staco site.
The individual defendants are charged as the principal executive officers of the related companies alleged to be responsible for the releases of mercury from the Staco-Chase plant and introduction of the substance into the public and private sewer facilities in Poultney. The defendants answered the complaint by denying generally the multiple claims and asserting seven affirmative defenses.
The case is presently before the court on the plaintiffs' motion for partial adjudication of the issue of liability and recovery of response costs, pursuant to Fed.R.Civ.P. 56. Before reaching the merits of the motion, the court is called upon to deal with a variety of discovery complications to settle the facts upon which the pending motion is founded. An additional aspect of the problem derives from state administrative proceedings and a state civil action which constitute extensive antecedent background to the instant federal suit.
The jurisdictional base for the court's power to adjudicate the present controversy is well founded and pleaded by the state under 28 U.S.C. § 1331. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 70, 98 S.Ct. 2620, 2628-29, 57 L.Ed.2d 595 (1978). Federal jurisdiction also has been predicated on other statutory provisions: 42 U.S.C. §§ 9607 (CERCLA) and 6972(a)(1)(B) (RCRA), as previously noted. Under the rubric of jurisdiction, the court's authority is questioned by the defendants' motion to dismiss on principles of res judicata and accord and satisfaction.
The defendants maintain this action is barred by a stipulated judgment entered in the state superior court of Rutland County on September 28, 1984. The state action was initiated by the same plaintiffs against the same defendants here, except for Robert Munzer, who was added in the federal complaint.
The state judgment order, annexed by copy to the answer, opens with the recital that it is entered in favor of the plaintiffs "against all defendants, pursuant to 10 V.S.A. § 1274 and 3 V.S.A. § 2822 and the Ordinance Regulating the Use of Sewers in the Village of Poultney, Vermont."1
It is at once apparent from the text of the state judgment, shown in the margin, that liability was premised entirely on defendants' violation of 10 V.S.A. § 1259(a).
This section of the Vermont Water Pollution Control Act prohibits "the discharge of any water substance or material into a public treatment facility which would have an adverse effect on the treatment works or water quality," without first obtaining a permit for that discharge from the secretary of the state agency of environmental control. The time period involved was prior to June 1984.
This federal action is differently constituted. It concerns subsequent violations of 10 V.S.A. § 1274. More importantly, this suit invokes pertinent provisions of federal and state environmental laws that were not available to the plaintiffs at the time the state consent decree was entered.
It will appear later in the discussion that the present federal suit is directed against mercury releases that are different in time, place and effect. According to the complaint, contamination of the Poultney Water Treatment Facility came from homes and domestic plumbing systems by migration of mercury carried on the bodies and personal effects of workers from the Staco plant.
The doctrine of res judicata, as recently explained by the state supreme court, applies "only if the parties, subject matter and causes of action are identical or substantially identical." Berisha v. Hardy, 144 Vt. 136, 138, 474 A.2d 90 (1984).
The state action was principally based on the release of mercury while the Staco plant was in production during 1973 to 1984. Contamination resulted from the presence of mercury in cleaning water that drained from the plant plumbing apparatus that connected into the municipal sewage system.
The present litigation is based on a release by drainage in the summer of 1985. It further involves the continuing exposure of the workers, while Staco/Chase was in production, and by contamination and carriage to the domestic environment of the plant employees.
In any event, any issues of fact and statutory law, common to the prior state litigation and the present federal action, are within the exceptions expressed in the Restatement, Second, Judgments § 86(1) and (2).
The defendants' motion to dismiss is denied.2
Discovery in this action opened with interrogatories propounded to the plaintiff in late November 1986. A jointly proposed discovery schedule was approved by Chief Judge Coffrin early in December. Following the agreement of defendants' counsel to grant the plaintiffs' request to extend the time to answer defendants' interrogatories, the court approved the further agreement of the parties to enlarge the time to add additional parties and file further pre-trial motions. The stipulations were approved and so ordered by the court.
The State's answers to the interrogatories were served on April 1, 1987. On April 21 the plaintiffs' first requests to admit were served on all parties of record. On May 19, 1987 the court approved the stipulation of the parties to extend the time for completion of discovery to July 31, 1987. Notice of appearance of the first Vermont law firm as local counsel for all defendants was filed June 29, 1987.
The State, on July 10, 1987, undertook a second round of discovery and propounded a second set of requests to admit. No further discovery activity is recorded during the ensuing two months. On September 10, 1987 the court was notified of substitution of local counsel for the defendants.
The dormant record was soon awakened by a series of motions filed by the State on September 21st. They included the present motion for summary judgment on issues of the defendants' liability under selected state and federal statutes. The Rule 56 motion was accompanied by plaintiffs' statement of undisputed facts set forth in 107 separate paragraphs. Also included in the September 21 filing were copies of the plaintiffs' first and second sets of requests to admit. At this point in time, neither series of the State's request to admit had been answered by the defendants.
On October 23 the defendants moved to dismiss the complaint. This was followed by filing on October 26 the certificate of service of the answers to the plaintiffs' second requests for admission. On the same day the defendants moved, pursuant to Rule 36(a), to extend the time to respond to the plaintiffs' requests to admit, dated April 22 and July 10, 1987. The motion to extend time is based on the change in counsel referred to earlier and asserts: "Responses to the July Requests are filed herewith, and responses to the April set will be filed in the immediate future."3
Defendants' motion to extend the time for responding to the requests to admit has met strong resistance from the State in both written and...
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