State v. Elementis Chem., Inc.

• Decision Date: 09 December 2005
• Docket Number: No. 2004–627.,2004–627.
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. ELEMENTIS CHEMICAL, INC.

152 N.H. 794

887 A.2d 1133

The STATE of New Hampshire

v.ELEMENTIS CHEMICAL, INC.

No. 2004–627.

Supreme Court of New Hampshire.

Argued: Sept. 29, 2005.

Opinion Issued: Dec. 9, 2005.

Kelly A. Ayotte, attorney general (Richard W. Head, senior assistant attorney general, on the brief and orally), for the State.

Wiggin & Nourie, P.A., of Manchester (Gregory E. Michael and Gregory Holmes on the brief); J. Steve Barnett, of Hightstown, New Jersey, on the brief; and Morgan, Lewis & Bockius, LLP, of Philadelphia, Pennsylvania (John McAleese, III, on the brief and orally), for the defendant.

DUGGAN, J.

The plaintiff, the State of New Hampshire, appeals an order by the Superior Court (Hampsey , J.) dismissing the State's petition for civil forfeiture against the defendant, Elementis Chemical, Inc. (Elementis). We reverse and remand.

The following facts were adduced at trial. Elementis is in the business of distributing commercial chemical products such as acetone, hydrochloric acid, muriatic acid, chromic acid, glacial acetic acid, potassium hydroxide, sodium hydroxide, nitric acid and aqueous ammonia. In 1981, Elementis purchased property at 441 Daniel Webster Highway in Merrimack (the site). The site occupies over twelve acres of land and is bordered by the Souhegan River to the south, Baboosic Brook to the east and Daniel Webster Highway to the north. Residential properties border the north and west boundaries.

On October 8, 1998, Elementis moved its operations from the site to a new building in Nashua. At that time, many of the buildings on the site were in various stages of disrepair. Elementis did not repair the buildings, one of which had a collapsed roof, because it intended to demolish them. Rather than immediately raze the buildings, however, Elementis rented several of them to Joseph Herlihy, the owner of a sign business. Herlihy used the buildings rent free in exchange for providing security at the site. Between October 1998 and October 2001, Herlihy was present at the site each day from approximately eight in the morning until ten at night. He provided security by patrolling the site, maintaining several "No Trespassing" signs and contacting Elementis upon seeing trespassers or unusual activity. Following its move to Nashua, Elementis hired the environmental consulting firm Arcadis, Geraghty and Miller (Arcadis) to prepare a remedial action plan to address soil and groundwater contamination at the site.

On July 26, 2001, David Bowen, a hydrogeologist with the New Hampshire Department of Environmental Services (DES), visited the site with a geologist from Arcadis to review the placement of monitoring wells in connection with the remedial action plan. Bowen observed that the site was not secured against trespassers and that dilapidated buildings remained standing.

Bowen revisited the site on August 9, 2001, accompanied by Cecil Curran, a health officer from the Town of Merrimack. Although Bowen contacted Elementis to arrange for a representative of the company to accompany him, none arrived, and Bowen and Curran proceeded to inspect the site.

Bowen and Curran began their inspection in the two southernmost buildings, which housed Herlihy's sign business. They then inspected the main mill building, Building One. Upon entering Building One, Bowen and Curran observed "numerous containers and boxes" containing chemical products, including a bottle labeled "N-methyl-pyrrolidone." Bowen and Curran also entered the basement, where Bowen detected what he described as "a very strong acrid, vinegar-like smell to that area, and when we looked with flashlights you could see almost like a mist or a haze....[Y]ou could feel the acrid taste on your throat and in your eyes." Bowen and Curran determined that it was unsafe to venture further into the basement.

When they returned to the first floor, Bowen and Curran observed a closet with containers that appeared to hold laboratory chemicals, some labeled and some unlabeled. At trial, Bowen said that the door to the first floor was "wide open and you could walk into the facility, and these [containers] were readily accessible to anybody that would have entered the facility." Curran described seeing "numerous bottles of lab reagents, many of them with sort of a furry residue on them, which [he had] seen before in chemical store houses where the environment in which the chemicals are stored is incompatible with them, either too much moisture or that sort of thing."

In the front office of Building One, Bowen and Curran observed two containers labeled "Hazardous Waste." On the floor of the office was a bag labeled "Corrosive" which appeared to be full of caustic soda beads. While walking on the other floors of Building One, Bowen and Curran observed some fifty-five gallon containers, one of which was covered in residue and another of which was labeled "Corrosive."

Bowen and Curran then entered an adjacent building, Building Three, where they observed two 20,000–gallon tanks containing sodium hydroxide. A portion of the roof of Building Three had collapsed onto one of the tanks and debris was on top of the tank. They observed that the piping system associated with the tanks was labeled "Caustic" and that what appeared to be dried caustic material had seeped from the end of one pipe. Bowen testified at trial that the presence of the two 20,000–gallon tanks with the collapsed roof and the crystalline material hanging from the pipe would have been sufficient grounds for issuance of an imminent hazard order. Outside Building Three, they observed an above ground storage area containing two more 20,000–gallon sodium hydroxide tanks and a third tank which contained anhydrous ammonia.

Exposure to sodium hydroxide can cause severe burns to the skin; exposure to the eyes can produce loss of eyesight. According to Bowen:

The piping with the associated crystalline material coming out of it was directly accessible when you entered this door. It would be very easy to either knowingly or unknowingly come into contact with this material, which would cause severe burning, due to the fact that there's absolutely no water at the site, there's no way to neutralize it or stop the burning.

Elementis had shut off water at the site in 1999.

Anhydrous ammonia is an airborne particulate, which, if inhaled, can cause irreparable bodily harm. It poses an extremely high risk to human health because it generates ammonia when mixed with water. Bowen testified that, "Due to the close proximity of [neighboring] houses to the facility, any release [of anhydrous ammonia] may potentially impact those residential properties."

On August 15, 2001, DES issued an imminent hazard order (IHO) to Elementis. The IHO contained the following findings:

[C.]6. At the time of the Inspection, DES documented that the Facility had been abandoned. The buildings and grounds were not secure, the doors were not locked and many windows were broken. Access to the site was not restricted, there was no fence surrounding the site and there were no signs to inform trespassers of the dangers posed by the site.

[C.]14. [Elementis], as the owner and operator of the Facility where the waste is located, has liability under RSA 147–A:9. By abandoning this waste, [Elementis] has created an imminent threat to human health and the environment pursuant to RSA 147–A:13.

[D.]1. [Elementis] through the handling and storage of the hazardous waste ... has created an imminent hazard pursuant to RSA 147–A:13.

The IHO ordered Elementis to, among other things:

Within thirty (30) calendar days of this Order, ensure that all hazardous waste at the Facility ... is delivered to an authorized facility as specified in Env–Wm 511.01 and Env–Wm 507.03 via a New Hampshire authorized hazardous waste transporter. [Elementis] may reuse materials at its business upon approval by DES. During this thirty (30) day period, [Elementis] must conduct and document daily inspections of the hazardous waste containers and tanks, as per Env–Wm 509.02(a)(1), which references 40 CFR 265.15 —General Inspection Requirements.

In response to the IHO, Elementis hired Clean Harbors Environmental Services (Clean Harbors) to remove the hazardous waste at a cost of approximately $100,000. Clean Harbors documented the removal of the waste using hazardous waste manifests. Generators of hazardous waste are required to prepare hazardous waste manifests when shipping hazardous waste off-site. N.H. Admin. Rules , Env–Wm 510.01(a). Hazardous waste manifests are "the form[s] used for identifying the origin, quantity, composition, routing and destination of hazardous waste." RSA 147–A:2 (2005).

The manifests showed that Clean Harbors removed approximately 10,000 gallons of sodium hydroxide, 2,000 gallons of anhydrous ammonia, 200 gallons of nitric acid and lesser quantities of waste flammables, oxidizers, mercury, tetrahydrofuran, bromide and chlorine. Clean Harbors also removed non-hazardous materials from the site, for which it did not prepare manifests.

On January 24, 2002, DES issued a notice of compliance informing Elementis that it had satisfactorily complied with the IHO, but stating that "[t]his Notice of Compliance does not release [Elementis] from liability for penalties to which it may be subject for the violations identified in the [IHO]." In January 2003, the State filed a civil forfeiture action against Elementis in superior court, alleging that Elementis had violated hazardous waste laws and regulations by storing and disposing of hazardous waste without a permit. The State sought a fine of $1,100 per day for an ongoing violation which lasted 951 days, for a total fine of $1,046,100.

Elementis filed a motion in limine to exclude evidence of the manifests as subsequent remedial measures under New Hampshire Rule of Evidence 407. By order dated May 19, 2004, the trial court denied the motion because "the disposal of materials was not made out of a sense of social responsibility but only because the remedial...