U.S. v. Cantrell
| Decision Date | 23 March 2000 |
| Docket Number | No. C-1-98-247.,No. C-1-97-981.,C-1-97-981.,C-1-98-247. |
| Citation | 92 F.Supp.2d 718 |
| Parties | UNITED STATES of America, Plaintiff, v. Eddie CANTRELL, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Lois J. Schiffer, U.S. Dept. of Justice, Environ. Enforcement Section, Washington, DC, for plaintiff.
Christopher Richard Schraff, Porter, Wright, Morris & Arthur, Columbus, OH, for Mansbach Realty Co., Oak Hill Foundary & Mach. Works, CSX Transp., L R Landen Ray Daniels, defendants.
Frederic X. Shadley, Elizabeth Conkin, Benesch Friedlander Coplan & Aronoff, Cincinnati, OH, for American Elec. Power Service Corp., General American Transp. Corp., defendants.
Mark Alan Norman, Vorys Sater Seymour & Pease, Cincinnati, OH, for Ashland Oil, Inc., defendant.
Philip Joseph Schworer, Greenbaum Doll & McDonald, Cincinnati, OH, for Baker Iron & Metal Co., Inc., defendant.
Phillip Bruce Leslie, McBrayer McGinnis Leslie & Kirkland, Greenup, KY, for City of Flatwoods Mayor's Office, defendant.
Carl John Schmidt, III, Wood & Lamping, Cincinnati, OH, for Crounse Corp., defendant.
Robert Bowman Craig, Taft Stettinius & Hollister, Cincinnati, OH, Charles H Pangburn, III, Hemmer Spoor Pangburn DeFrank & Kasson PLLC, Ft Mitchell, KY, for David J. Joseph Co., defendant.
Thomas J Grever, Squire Sanders & Dempsey, Columbus, OH, for Gulf Chemical & Metallurgical Corp., defendant.
Jeffrey Joseph Harmon, Cors & Bassett, Cincinnati, OH, for Helm Financial Corp., defendant.
Jonathan P Saxton, Rendigs Fry Kiely & Dennis, Cincinnati, OH, for Ingram Industries, Inc., defendant.
Leigh Gross Johnson, Vanantwerp Monge Jones & Edwards, Ashland, KY, for Kentucky Elec. Steel, defendant.
Todd Matthew Powers, Schroeder Maundrell Barbiere & Powers, Cincinnati, OH, for Merdie Boggs & Sons, Superior Marine Ways, Inc., defendants.
Paul William Casper, Jr., Christopher S Habel, Frost & Jacobs, Cincinnati, OH, for Norfolk Southern Ry. Co., defendant.
Stanley Jerome Aronoff, Gregory Mohar, Aronoff, Rosen & Stockdale, Cincinnati, OH, for Nugent Sand Co., defendant.
Joseph Dominic Lonardo, Vorys Sater Seymour & Pease, Columbus, OH, for Ohio River Co., defendant.
Stephen Lounsbury Black, Graydon Head & Ritchey, Cincinnati, OH, for Progress Rail Services Corporations, defendant.
C Robert Schaub, Schaub Law Offices, L.C., Huntington, WV, for Ross Brothers Construction Co., defendant.
James Foley Brockman, Lindhorst & Dreidame, Cincinnati, OH, for Southpoint Barge Co., defendant.
ORDER GRANTING PLAINTIFF'S MOTION TO ENTER CONSENT DECREES
This matter is before the Court on Plaintiff's Motion to Enter Consent Decrees (doc. 109). The four proposed partial Consent Decrees seek to resolve liability between the Plaintiff United States of America and four sets of Defendants (collectively referred to as the "Settling Parties") under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), as amended by the Superfund Amendments and Reorganization Act of 1986 ("SARA"), 42 U.S.C. § 9601 et seq. The United States filed these consolidated suits to recover the costs expended by the United States Environmental Protection Agency ("EPA") in responding to environmental hazards at the Automatic Containers Superfund Site near the City of Ironton in Lawrence County, Ohio ("the Site"). Each of the following groups of Settling Parties are covered in one of the four proposed Consent Decrees: (1) Defendant Mansbach Realty Co. (d/b/a Mansbach Metal Co.) ("Mansbach") and the Third-Party Defendants known as the Mansbach Suppliers;1 (2) Defendant Oak Hill Foundry & Machine Works, Inc. ("Oak Hill"); (3) Third-Party Defendant City of Ironton, Ohio ("City of Ironton"); and (4) Third-Party Defendants Crace Construction Company, Muth Lumber Company and Lawrence County Medical Center.
Amcast Industrial Corporation ("Amcast"), a non-settling Defendant and the Third-Party Plaintiff who filed claims against the Third-Party Defendants including the Mansbach Suppliers, has filed a Memorandum in Opposition to Plaintiff's Motion to Enter Consent Decrees (doc. 113). Several of the Settling Parties have filed briefs supporting the Motion to Enter the Consent Decrees. The Court has reviewed the parties' briefs and the voluminous supporting documents. Upon consideration of the law and the facts, Plaintiff's Motion to Enter Consent Decrees is hereby GRANTED.
The Site comprises 8.5 acres near Ironton, Ohio. It was used as a landfill until approximately September or October 1993 and it accepted residential, industrial, commercial, demolition, and municipal wastes during its period of operation. In September 1993, a fire began at the Site. Tests performed by the Portsmouth Local Air Agency demonstrated that various hazardous substances were being released. State and local officials were unable to extinguish the flames or control the smoke and gases being released. On October 13, 1993, Ohio Governor George Voinovich declared a state of emergency for Lawrence County, Ohio. The Ohio Environmental Protection Agency ("OEPA") requested intervention from the federal EPA.
The EPA mobilized at the Site on November 18-19, 1993. Officials performed additional tests on the conditions at the Site, such as air monitoring and water leaching. The tests showed that conditions at the site threatened the release of additional hazardous substances into the environment. Thus, the EPA began an emergency removal action.
The EPA's primary response activity was the construction of a clay cap over the burning landfill. The clay cover was intended to (1) suppress the release of airborne contaminants; (2) extinguish the fire; (3) reduce the risk of direct contact with the landfill wastes; and (4) minimize water-flow through the landfill. The installation of the clay cap and a final grade and restoration were completed in April 1994. The OEPA then adopted and independently implemented an operation and maintenance plan for the Site. According to that plan, OEPA was to monitor landfill temperatures, surface water quality, air quality in and around the Site, and gas emissions. The OEPA continued to provide monthly progress reports to the EPA.
By November 1994, landfill temperature testing indicated that the fire had been extinguished. EPA officials conducted a final inspection of the Site on November 2, 1994 with members from the OEPA, the technical assistance team, and various local agencies involved in the clean-up. After the final inspection, the EPA's involvement with the Lawrence County, Ohio Site was limited to enforcement actions. The OEPA took responsibility for maintaining the Site.
The United States filed a civil action, No. C-1-97-981, for the recovery of costs under CERCLA, 42 U.S.C. § 9607, against Defendants Eddie Cantrell and Karen Cantrell on October 31, 1997. The Cantrells were alleged to be operators of portions of the Site when hazardous substances were disposed at the Site. The United States filed an Amended Complaint in case number C-1-97-981 on January 1, 1998 under the same CERCLA provision adding as Defendants (1) Mansbach Realty Co. d/b/a Mansbach Metal Co. ("Mansbach") and (2) Oak Hill Foundry and Machine Works, Inc. ("Oak Hill"). The Amended Complaint alleged that both Mansbach and Oak Hill were liable under § 9607 for arranging for disposal of hazardous substances at the Site.
The United States filed a second civil action, No. C-1-98-247, for the recovery of costs under CERCLA against Defendant Ohio Power Company ("Ohio Power") on April 1, 1998. Defendant Ohio Power was alleged to have arranged for the disposal of hazardous substances at the Site. The United States filed an Amended Complaint in case number C-1-98-247 on April 27, 1998 adding Amcast Industrial Corporation f/k/a Dayton Malleable, Inc. ("Amcast") as a Defendant. The Amended Complaint alleged that Amcast also arranged for disposal of hazardous substances at the Site.
After filing the second action, the United States moved the Court to consolidate case numbers C-1-97-981 and C-1-98-247. The Court consolidated the cases in its Case Management Order issued on October 7, 1998 and the subsequent filings in the consolidated cases have been under case number C-1-97-981.
Defendant Amcast has filed numerous cross-claim and third-party complaints. Defendant Amcast filed a Third-Party Complaint under CERCLA against ten Third-Party Defendants on June 16, 1998 alleging that each arranged for disposal of hazardous substances at the Site. Defendant Amcast filed a second Third-Party Complaint on April 13, 1999 against twenty seven Third-Party Defendants. Amcast alleged that the majority of these Third-Party Defendants sold metals and recyclables to Defendant Mansbach, some of which Mansbach later disposed of at the Site. This group of Third-Party Defendants has been referred to as the Mansbach Suppliers throughout this litigation. Amcast alleged that the metals and recyclables that the Mansbach Suppliers sold to Defendant Mansbach contained hazardous substances. Amcast alleged that the remaining Third-Party Defendants arranged for disposal of hazardous substances at the Site.
The majority of Defendants and Third-Party Defendants have attempted to enter into consent decrees with the United States and thus settle their claims. The Court has already entered unopposed Consent Decrees and granted motions dismissing several Third-Party Defendants. The Court has also granted a Motion for Partial Summary Judgment Against Defendant Amcast and held that Amcast is liable under CERCLA.
The Court turns its attention now to the Motion to Enter the Consent Decrees and Amcast's opposition to the Motion. The government would receive from the Settling Parties $715,000 of the unrecovered costs totaling $1,300,000 ("$1.3 million") if the Consent Decrees are entered. Under the proposed settlements, Mansbach and its Suppliers would pay...
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