U.S. v. Davis

• Decision Date: 28 September 1998
• Docket Number: C.A. No. 90-484-T.
• Citation: 20 F.Supp.2d 326
• 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

20 F.Supp.2d 326

UNITED STATES of America v. William M. DAVIS, et al. v. AMERICAN CYANAMID, et al.

C.A. No. 90-484-T.

United States District Court, D. Rhode Island.

September 28, 1998.

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Everett C. Sammartino, United States Attorney's Office, Providence, RI, Patricia Sims, U.S. EPA Office of Enforcement, Richard B. Stewart, U.S. Department of Justice, Environmental Enforcement, Washington, DC, Julie Taylor, U.S. EPA Office of Regional Counsel, Boston, MA, Brian E. Burke, Robert E. Maher, Jr., Cynthia S. Huber, U.S. Dept. of Justice/Env., Enforcement Sect., Land and Natural Resources, Richard H. Boote, Timothy K. Webster, Jason W. Feingold, Environmental Enforcement Section, Environment & Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for United States of America, plaintiff.

Thomas C. Angelone, Steven I. Rosenbaum, Charles P. Cavas, Hodosh, Spinella & Angelone, Providence, RI, S. Paul Ryan, East Providence, RI, R. Bradford Fawley, Downs, Rachlin & Martin, Brattleboro, VT, Peter Kunin, Lawrence H. Meier, Marc B. Heath, Downs, Rachlin & Martin, Burlington, VT, Robert Miller, Charles N. Hurt, Jr., James C. Gallagher, Downs, Rachlin & Martin, St. Johnsbury, VT, Timothy A. Vanderver, Jr., Russell V. Randle, Thomas C. Downs, Patton Boggs, L.L.P., Washington, DC, for William M. Davis, Eleanor Davis, A. Capuano Brothers, Inc., United Sanitation, Inc., United Technologies Corporation, defendants.

MEMORANDUM AND ORDER

TORRES, District Judge.

United Technologies Corp. ("UTC") seeks contribution pursuant to § 113(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9613(f)(1), from seventeen parties (the "defendants")¹ that UTC claims share liability for the costs incurred in cleaning up a hazardous waste site. The defendants include those who allegedly generated hazardous wastes found at the site (the "generator defendants")² and those who allegedly transported hazardous waste to the site for disposal (the "transporter defendants").³ In addition to its claim for contribution, UTC seeks indemnity and a declaratory judgment allocating responsibility among the parties for future cleanup costs.

The case was tried to the Court sitting without a jury. When UTC rested, thirteen of the defendants moved for judgment as a matter of law pursuant to Fed.R.Civ.P. 52(c).⁴ The Court rendered a bench decision granting some of those motions and denying others.

Because the motions raise important issues regarding the CERCLA liability of municipalities and transporters of hazardous waste and because there is very little authority addressing those issues, the Court is entering its order in the form of this Memorandum and Order.

Background

The facts giving rise to this litigation are recited in United States v. Davis, 11 F.Supp.2d 183, 185-87 (D.R.I.1998). For present purposes, it is sufficient to say that in the first phase of the case, UTC was found liable to the United States for all past and future response costs incurred in cleaning up a hazardous waste site in Smithfield, Rhode Island, known as the Davis Liquid Site (the "Davis Site" or the "Site"). UTC and the government later entered into a settlement agreement calling for UTC to underwrite approximately $16.8 million of the estimated $55 million in response costs.⁵

In this phase of the case, UTC sought contribution pursuant to § 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1), from seventeen of 142 potentially responsible parties (PRP's)⁶ for expenses actually incurred prior to September 13, 1996.⁷ In addition, UTC sought both indemnification for any cleanup costs that it incurs and a declaratory judgment allocating responsibility among the parties for future cleanup costs.

UTC's contribution claim for costs incurred prior to September 13, 1996 was dismissed because UTC incurred no expenses before that time. UTC's indemnification claims previously were dismissed for the same reason, and because, in the absence of either an agreement to indemnify or circumstances dictating that the remediation costs should be borne entirely by the other PRP's, UTC was not entitled to indemnification under Rhode Island law. See Fish v. Burns Bros. Donut Shop, Inc., 617 A.2d 874, 875 (R.I.1992); Wilson v. Krasnoff, 560 A.2d 335, 341 (R.I.1989); Muldowney v. Weatherking Prods., Inc., 509 A.2d 441, 443 (R.I.1986). Accordingly, the issue presented is whether, pursuant to Rule 52(c), judgment on partial findings should enter in favor of the defendants with respect to UTC's request for a declaratory judgment allocating responsibility for future remediation costs.

The defendants argue that they are entitled to judgment on a variety of grounds. All of the defendants assert that UTC has failed to prove that it is being required to pay more than its pro rata share of the cleanup costs. In addition, the generator defendants contend that UTC has failed to prove that any of their wastes were deposited at the Davis Site. BFI and the Macera defendants⁸ also contend that, under 42 U.S.C. § 9607(a)(4), they cannot be held liable as transporters because Macera Brothers did not "select" that site.⁹ Finally, Jersey City contends that, because it made arrangements to dispose of waste "in response to an emergency" created by a third party, 42 U.S.C. § 9607(d)(2) exempts it from liability.

Findings of Fact

After listening to the evidence presented during twenty-six days of trial, I hereby find the relevant facts to be as follows. During 1976 and most of 1977, William M. Davis operated a chemical waste disposal site known as the Davis Liquid Site on land owned by him and his wife, Eleanor Davis, in Smithfield, Rhode Island. During that period, wastes containing a variety of hazardous chemicals were deposited at the Site, primarily by four transporters: Chemical Control Corp. ("CCC"), Chemical Waste Removal, Inc. ("CWR"), Macera Brothers, and A. Capuano Bros., Inc./United Sanitation, Inc. ("Capuano"). The defendants, the other PRP's and UTC were among several hundred customers from which the transporters received waste containing hazardous chemicals of the kind deposited at the Site.

The businesses of CCC and CWR included hauling waste to various landfills and other facilities for disposal. They were referred to the Davis Site by the Capuanos, the operators of Sanitary Landfill, a facility to which CCC and CWR usually brought their waste.

Macera Brothers hauled waste to various facilities for disposal. Sometime in 1976 Robert Cece, a principal in Macera Brothers and a longtime acquaintance of William Davis, approached Davis to inquire about the possibility of disposing barrels of waste at the Davis Site. Davis was receptive to the idea and, after some discussion, an agreement was reached regarding the price. Shortly thereafter, Macera Brothers began delivering fifty-five-gallon drums containing a brown, waxy substance that smelled like solvent and was very similar in appearance to waste generated by the Pratt & Whitney Division of UTC. Some of the drums bore Pratt & Whitney labels.

Generally, when waste was deposited, Davis completed a "receipt" by writing down the date, the name of the transporter and the quantity of waste delivered. In most cases, he required the driver to sign the receipt. Receipts for the period between January 11 and July 7 of 1977 were admitted into evidence, but the remaining receipts were lost during previous state court litigation regarding the Site.

Most of the waste deposited at the Site was in liquid form and was delivered in either tanker trucks, fifty-five-gallon drums that had been loaded on flatbed trailers, or a variety of smaller containers ranging from five-gallon cans to laboratory-sized vials and jars.

The contents of the tankers were emptied into large pits, and they eventually percolated down into the soil. The liquid contents of the drums and some of the smaller containers also were poured into the pits, and the empty drums and containers were sold. The remaining small containers were buried elsewhere on the Site. Drums containing solid and semi-solid substances that could not be poured out and drums containing laboratory vials and bottles were placed in piles. Some of them were buried later by the fire department in the course of extinguishing a July 1977 fire at the Site.

In addition to the Pratt & Whitney labels, there were markings on a few of the drums and/or containers found at the Site indicating that they may have come from some of the generator defendants. However, the evidence linking the generator defendants' waste to the Site is largely circumstantial. It consists primarily of the fact that many of the dates on Davis's "receipts" correlate with dates on which the transporter depositing the waste collected waste from the generator defendants.

The waste attributed to Jersey City consisted of approximately 1,000 drums of liquid waste that had been abandoned by an unknown third party in a deserted building on a pier owned by the City. On March 3, 1977, New Jersey state officials inspected the drums, observed that some were leaking and emitting vapors, and became concerned that, among other things, the drums' contents threatened to pollute a river on which the pier was located. Accordingly, on March 21, 1977, state officials obtained a court order directing Jersey City to remove the drums forthwith. Less than a week later, the city contracted with a licensed waste disposal company to have the drums removed.

Conclusions of Law and Supplemental Findings of Fact

I. Rule 52(c) Standard

Fed.R.Civ.P. 52(c) provides that:

If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on...