U.S. v. Chrysler Corp.

• Citation: 157 F.Supp.2d 849
• Decision Date: 04 September 2001
• Docket Number: No. 597CV894.,597CV894.
• Parties: UNITED STATES of America, Plaintiff(s), v. CHRYSLER CORPORATION, et al., Defendant(s).
• Court: U.S. District Court — Northern District of Ohio

Page 849

157 F.Supp.2d 849

UNITED STATES of America, Plaintiff(s), v. CHRYSLER CORPORATION, et al., Defendant(s).

No. 597CV894.

United States District Court, N.D. Ohio, Eastern Division.

September 4, 2001.

COPYRIGHT MATERIAL OMITTED

Arthur I. Harris, Office of the United States Attorney, Northern District of Ohio, Cleveland, OH, Daniel C. Beckhard, U.S. Department of Justice, Environmental Enforcement Section, Lois J. Schiffer, Department of Justice, Environment & Natural Resources Division, Environmental Defense Section, Washington, DC, Shawn P. Mulligan, Boulder, CO, Stacey H. O'Bryan, U.S. Department of Justice, Environmental Enforcement Section, Washington, DC, for United States Of America, Plaintiffs.

Steven C. Kohl, Howard & Howard, Bloomfield Hills, MI, for Chrysler Corporation.

James G. O'Connor, Dickinson, Wright, Grand Rapids, MI, Margaret A. Coughlin, Rebecca L. Takacs, Dickinson, Wright, Moon, Van Dusen, Detroit, MI, for Ford Motor Company.

Daniel E. Vineyard, Richard T. Hughes, Chevron Corporation, Department of Law, Houston, TX, for Kewanee Industries, Inc., Chevron U.S.A., Inc.

Benjamin E. Wolff, III, Eric A. Oesterle, Sonnenschein Nath & Rosenthal, Chicago, IL, James L. Moeller, Sonnenschein, Nath & Rosenthal, Kansas City, MO, Jeffrey C. Fort, Michael M. O'Hear, Natalie J. Spears, Sonnenschein, Nath & Rosenthal, Chicago, IL, Ray L. Weber, Renner, Kenner, Greive, Bobak & Taylor, Akron, OH, Susan M. Franzetti, Sonnenschein, Nath & Rosenthal, Chicago, IL, for Minnesota Mining and Manufacturing Company.

Brian T. Vandervest, Katherine A. Moertl, Matthew J. Duchemin, Quarles & Brady, Milwaukee, WI, for Waste Management.

John A. Heer, Ralph E. Cascarilla, Walter & Haverfield, Cleveland, OH, for Federal Metal Company.

MEMORANDUM OPINION

DOWD, District Judge.

This matter is before the Court on Defendant Minnesota Mining and Manufacturing Company's motion for partial summary judgment ("3M," Doc. No. 139) and Plaintiff United States' motion for partial summary judgment as to liability ("U.S.," Doc. No. 145).¹ Responses and replies have been filed with regard to both motions.²

For the reasons that follow, Defendant 3M's motion for partial summary judgment is denied with respect to the argument that the U.S., an owner and operator of the Site, is limited to an action for contribution under CERCLA § 113(f) to recover its response costs,³ and Plaintiff U.S.'s motion for partial summary judgment as to liability is granted.

I. Background

In 1974, Congress created the Cuyahoga Valley National Recreation Area, which has recently been redesignated by Congress as a National Park. See 16 U.S.C. § 460ff.⁴ In addition, Congress authorized the Department of Interior ("DOI") to acquire properties located within the boundaries of the recreation area and directed that the land acquisition program be substantially completed within six years after December 27, 1974. See 16 U.S.C. §§ 460ff-1, -2(b).⁵ Pursuant to this Congressional mandate, the U.S. sought to acquire two parcels of land located along Hines Hill Road in Summit County, Ohio, referred to as the East and West Tracts, and known as the Krejci Dump Site (the "Site").

The Site was operated as a dump and salvage yard beginning sometime in the 1940s by John Krejci II ("Krejci II").⁶ In 1971, John Krejci III ("Krejci III") inherited the property upon his father's death and continued to operate a salvage yard on the property. In 1979, the U.S. sought to acquire the property by condemnation, through exercise of the power of eminent domain. A trial was conducted in early 1980 to determine the value of the West Tract, and Krejci III was awarded $516,000. The parties then agreed to a purchase price of $850,000 for the East Tract. The parties entered into a consent judgment resolving the condemnation proceeding, which granted Krejci III the right to retain special use and occupancy of the Site under a Special Use Permit ("SUP") for five years. In return, Krejci III agreed not to "increase in any way the inventory of the present business" and to "make a good faith effort to dispose of all of the present inventory ...." (Doc. No. 146, at ex. J-4 at ¶¶ 11-12).

In May of 1986, the National Park Service (the "NPS") received information regarding the possible presence of hazardous substances at the Site.⁷ In October of 1986, the United States Environmental Protection Agency (the "EPA") conducted a site assessment at the request of the NPS. During this assessment, the EPA sampled drums, soils, sediments, and surface water at the Site. The EPA then began onsite activity in June of 1987, which involved sampling drums and soils, identifying contaminants, segregating and staging the hazardous materials, dewatering and treating an on-site lagoon, removing non-hazardous site materials necessary to facilitate removal of hazardous materials, and removing and disposing of hazardous materials.⁸

The second phase of the removal action was conducted by the NPS, who assumed responsibility for removal work at the Site pursuant to an interagency agreement with the EPA. Phase 2 consisted of the "characterization" and removal of the remaining waste staged during Phase 1.⁹ Activities conducted by the NPS consisted of sampling drums and bulk waste piles, performing chemical analyses of those samples, conducting on-site soil gas investigations, and removing approximately 2,000 drums and 4,300 tons of waste from the bulk waste piles. See id. Phase 2 was followed by Phase 3, which addressed the unconsolidated waste on the West Tract of the Site. Phase 3 involved characterizing, separating, and removing wastes from the Site. See id. The removal action is currently in Phase 4, during which the NPS is performing a Remedial Investigation/Feasibility Study relating to a long-term remedial action for the Site. The Remedial Investigation is complete, while the Feasibility Study is nearing completion. The U.S. contends that it has incurred costs and expenses in conducting the four phases totaling at least $23,981,563.00.¹⁰

In April of 1997, the U.S., on behalf of the Secretary of the DOI, filed a complaint in this matter pursuant to Sections 107 and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9607(a) & 9613(f), seeking recovery of costs incurred for response actions at the Site. The U.S. named as Defendants the following seven corporations: Chrysler Corporation, Ford Motor Company, Kewanee Industries, Inc., Chevron U.S.A., Inc., Minnesota Mining and Manufacturing Company, Waste Management of Ohio, Inc., and The Federal Metal Company. On March 28, 2001, the U.S. lodged with the Court a Partial Consent Decree reached between it and all of the Defendants, with the exception of Defendant 3M and Defendant Ford Motor Company, which provides for the payment of the settling Defendants' equitable share of the cost of the remedial action and the U.S.'s other response costs and for damages for injury to, destruction of, or loss of natural resources at the Site. In addition, the U.S. is currently negotiating a settlement with Defendant Ford Motor Company and anticipates lodging a Partial Consent Decree with this Court sometime in September of 2001. Accordingly, only the U.S.'s case against Defendant 3M appears to remain in dispute.

II. Summary Judgment Standard

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. When considering a motion for summary judgment, "the inferences to be drawn from the underlying facts contained in [affidavits, pleadings, depositions, answers to interrogatories, and admissions] must be viewed in the light most favorable to the party opposing the motion." U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). However, the adverse party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Rule requires the nonmoving party who has the burden of proof at trial to oppose a proper summary judgment motion "by any of the kinds of evidentiary material listed in Rule 56(c), except the mere pleadings themselves[.]" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). General averments or conclusory allegations of an affidavit do not create specific fact disputes for summary judgment purposes. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Nor may a party "create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts ... earlier deposition testimony." Reid v. Sears Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986) (citing Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984)). Further, "`[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.'" Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989) (quoting Anderson v. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505).

In sum, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505.

III. CERCLA Liability

CERCLA was enacted by Congress in 1980 and is "the primary statutory means by which harmful or potentially harmful hazardous waste disposal sites are remediated." Centerior Service Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 347 (6th Cir.1998). Parties who incur...