U.S. v. Davis
| Decision Date | 09 March 1998 |
| Docket Number | No. 90-484.,90-484. |
| Parties | UNITED STATES of America v. William M. DAVIS, et al. v. AMERICAN CYANAMID, et al. |
| Court | U.S. District Court — District of Rhode Island |
Downs, Rachlin & Martin, P.C. by R. Bradford Fawley, David W. Gartenstein, Brattleboro, VT, for United Technologies Corp.
Lathrop & Gage by William G. Beck, Kansas City, MO, for Browning-Ferris Industries of Rhode Island.
McGovern, Noel & Benik by Gregory L. Benik, Providence, RI, for Radiac Research Corp.
The recommendation contained in the Report of Magistrate Judge Lovegreen dated March 9, 1998, is hereby accepted.
In this matter brought pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., Radiac Research Corporation (Radiac), a fourth-party defendant from which contribution is sought, filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56 which requests this Court find that it is not an arranger within the meaning of § 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3). The Contribution Plaintiffs1 object and request this Court affirm that Radiac is an arranger and liable to UTC for contribution. A hearing was held on February 26, 1998. Following my review of the legal memoranda, the oral argument and my independent research, I find that Radiac is not an arranger within the meaning of § 107(a)(3) of CERCLA and recommend that Radiac's motion for summary judgment be granted.
In the Second Amended Third Party complaint ("complaint"), UTC seeks contribution from Radiac under the theory that Radiac "is a person defined in CERCLA who arranged for the disposal or treatment of hazardous substances which were disposed of at the [Davis Liquid Waste] Site." Compl. at ¶ 56. Radiac contends it was not an arranger but was solely a transporter of waste to Chemical Control Company ("CCC"), a licensed waste disposal facility in New Jersey, and took no role in making arrangements or decisions to dispose of the hazardous waste at the Davis site or transporting the waste to the Davis site. Consequently, Radiac states it is a transporter within the meaning of § 107(a)(4) of CERCLA, 42 U.S.C. § 9607(a)(4). Radiac relies upon deposition testimony and an affidavit from two of its three founders and current officers. On July 17, 1996, Ellery Foley ("Foley") was deposed and stated he was a founder of Radiac in 1969 and remains with the company as vice-president although he still performs the waste collecting work with Radiac's customers; Radiac's principal place of business consists of a warehouse in Brooklyn, New York; Radiac disposes of radioactive and chemical hazardous waste but does not generate or treat any such waste; some materials would be taken to the Brooklyn warehouse and repacked with compatible materials; over the years, Radiac used several companies to dispose of waste including CCC located in Elizabeth, New Jersey; only bulk material would be taken to CCC; Radiac would go to its customer and pack the waste materials itself and then determine where the waste would be taken depending upon the type of waste material; Radiac personnel visited CCC's plant in 1972 and viewed its operations including its incinerator and were informed by CCC personnel that CCC could receive any type of chemical; in 1976 and 1977, Radiac used two companies, CCC and American Recovery and Chemical Control ("American Recovery") to dispose of waste; Radiac and CCC entered into a contract in 1972 for the disposal of waste; Radiac would pick up waste from New Jersey customers and drop it off at CCC on the way back to Brooklyn; Radiac never transported any waste to the Davis site.
Arthur Green, another founder of Radiac and secretary/treasurer, testified at deposition on July 18, 1996 that waste picked up at New York customers was taken back to the Brooklyn warehouse; it is uncertain whether any New York generated waste was taken to CCC but it was never taken to Rhode Island; Radiac personnel did not discuss with CCC its methods used to dispose of waste brought to the CCC facility. In an affidavit dated November 20, 1997, Green stated Radiac never generated or treated waste; during 1976 and 1977, Radiac delivered only bulk waste from New Jersey customers to CCC; Radiac did not possess the waste materials except for an occasional overnight stay at the Brooklyn facility on the trucks until it could be delivered to CCC the next business day; Radiac never offered advice or counsel to its customers regarding their waste; CCC was licensed by the State of New Jersey to incinerate waste at its facility; Radiac believed the waste brought by it to CCC would be incinerated or treated at CCC's facility and not shipped to another location; Radiac never transported any waste to the Davis site; and Radiac never selected, recommended, authorized or agreed to the Davis site for disposal of its customer's waste nor did it have knowledge that any such waste was being transported to the Davis site by others.
UTC, also relying upon the Foley and Green depositions, contends that Radiac assumed the responsibility for packaging, labeling and suitably transporting and storing its customer's waste until it reached the disposal site, either CCC or American Recovery; Radiac packaged the waste and what bulk waste it collected would result in Radiac's inspection of the containers and proper labeling; only bulk waste (basically acids and solvents) received from customers would be taken to CCC but not all bulk waste was delivered to CCC; Radiac inspected the CCC facility before commencing disposal there; Radiac personnel met with William Carracino ("Carracino") who owned CCC; Radiac noted CCC had a thin film evaporator, neutralization tanks, and an incinerator; Radiac determined that CCC could accept almost any type of chemical waste; Radiac's customers were advised as to the disposal site for their waste if they inquired; in 1976 and 1977 Radiac used only CCC and American Recovery for disposal sites; CCC never picked up waste from Radiac — Radiac always delivered to CCC; Foley referred to Radiac as a "broker" in his deposition and defined the term "broker" as "someone who arranges a transaction between a client and somebody who is going to perform a service"; CCC was chosen in 1972 because it was being used by the "Federal EPA, the Federal FBI and New Jersey state DEP and everybody else and they had a good facility"; CCC was last used by Radiac in January 1978 because it was then shut down.
UTC also relies upon certain deposition testimony of William Carracino taken August 26, 1996. He stated that CCC was in the business of picking up waste and disposing of it; some waste material was received from Radiac and most of the Radiac waste material was taken to the Davis site; after CCC received the waste from Radiac, CCC would take it to the Davis site; Carracino could not recall how much waste or the type brought in by Radiac actually went to the Davis site, but some did. Carracino did not testify that Radiac knew some of the waste it brought to CCC was being taken to the Davis site. In fact, Carracino testified that CCC's personnel would "lie" to Radiac. Carracino depos. at 595.
UTC also disputes some of Radiac's material facts and states that Foley had extensive formal training in the disposal of hazardous waste going back to the 1950's; Green also had such training since 1963; Radiac was a broker and arranger for disposal of customer's waste; Radiac acted as a waste broker by packaging, transporting and arranging for disposal of customer's waste; Radiac could have selected a disposal facility other than CCC; Radiac inspected the CCC facility on several occasions and chose CCC as part of a business decision and not at the request of any customer; CCC was chosen as a disposal site based upon its facilities and geographical location; Radiac generated and handled all of the paperwork necessary to dispose of waste at CCC and made all arrangements for the deliveries; Radiac supplied containers to its customers for solvent use; Radiac charged a flat fee for its materials and services; Radiac typically brought packing materials and containers to a customer, segregated the materials by hazard category, packed and labeled the waste, sealed the containers, prepared the necessary papers, loaded the waste and repeated the process at the next customer; it was Radiac's responsibility to package and label the waste properly, transport it and unload it at the disposal site; after the waste was loaded on Radiac's trucks, it was taken to the Brooklyn warehouse and segregated into different categories of material; CCC sent most of Radiac's waste to the Davis site; Radiac treated the waste obtained from its customers; and Radiac is not a mere transporter.
From the contentions of both Radiac and UTC and after my review of all depositions and the affidavit attached to the parties' memoranda, I have found the following facts which are not in material dispute:
Radiac was formed in 1969 by three individuals including Foley and Green. Each had experience in the hazardous waste handling business either from military service, prior employment or both. Radiac was established to take hazardous waste (mostly radioactive and chemical) from the premises of various customers (primarily hospitals, universities, research centers and a few manufacturing plants) principally in New York, New Jersey and Maryland and dispose of that waste at selected disposal sites in New Jersey and Maryland. The relevant time period in this case is 1976 and 1977. Radiac had six or seven employees, some trucks, vans only and no tanker trucks, and no holding tanks, at its warehouse/headquarters in Brooklyn, New York. Foley and Green would perform much of the waste collection work with Radiac's customers. A typical customer would notify Radiac of waste to be picked up....
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