United States v. Conservation Chemical Co., 82-0983-CV-W-5.

• Citation: 619 F. Supp. 162
• Decision Date: 02 July 1985
• Docket Number: No. 82-0983-CV-W-5.,82-0983-CV-W-5.
• Parties: UNITED STATES of America, Plaintiff, v. CONSERVATION CHEMICAL COMPANY, Norman B. Hjersted, Conservation Chemical Co. of Illinois, Armco Steel Corporation, FMC Corporation, International Business Machines Corp., Western Electric Company, Inc., and Mobay Chemical Company, Defendants.
• Court: U.S. District Court — Western District of Missouri

619 F. Supp. 162

UNITED STATES of America, Plaintiff, v. CONSERVATION CHEMICAL COMPANY, Norman B. Hjersted, Conservation Chemical Co. of Illinois, Armco Steel Corporation, FMC Corporation, International Business Machines Corp., Western Electric Company, Inc., and Mobay Chemical Company, Defendants.

No. 82-0983-CV-W-5.

United States District Court, W.D. Missouri, W.D.

July 2, 1985.

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Kenneth Josephson, Asst. U.S. Atty., Kansas City, Mo., John R. Barker, Environmental Enforcement Section, Land Natural Resource Div., U.S. Dept. of Justice, Washington, D.C., Ken Weinfurt, Asst. U.S. Atty., Kansas City, Mo., John Wittenborn, Environmental Defense Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Niewald, Waldeck, Norris & Brown, Michael E. Waldeck, John L. Hayob, Terry L. Karnaze, Kansas City, Mo., for Conservation Chemical, CCC of Ill. and Norman Hjersted.

Thos. F. Fisher, John M. Kilroy, Jr., Shughart, Thomson & Kilroy, Kansas City, Mo., Edmund B. Frost, John A. Zackrison, Kirkland & Ellis, Washington, D.C., Robert F. St. Aubin, FMC Corp., Philadelphia, Pa., for FMC Corp.

Neil D. Williams, Overland Park, Kan., James F. Duncan, Watson, Ess, Marshall & Enggas, Kansas City, Mo., Allan J. Topol, Patricia A. Barald, David F. Williams, Covington & Burling, Washington, D.C., for IBM Corp.

Richard F. Adams, Ben R. Swank, Jr., John J. Williams, III, Slagle & Bernard, Kansas City, Mo., for third party plaintiffs.

Linde Thomson Fairchild Langworthy Kohn & Van Dyke, P.C., John R. Cleary, Darwin Johnson, Wm. Session and Robert J. Bjerg, Kansas City, Mo., for Norman Hjersted.

J. Jeffrey McNealey, Porter, Wright, Morris & Arthur, Columbus, Ohio, Martin J. Purcell, Robert M. Kroenert, Stanley A. Reigel, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, Mo., Daniel W. Kemp, Legal Dept., Armco, Inc., Middleton, Ohio, for Armco, Inc.

Jerome T. Wolf, Carl H. Helmstetter, Spencer, Fane, Britt & Browne, Kansas City, Mo., John A. McKinney, Morton I. Zeidman, Alan R. Chesler, New York City, for AT & T Tech. Inc.

Stephen Jacobson, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., for Mobay.

ORDER

SCOTT O. WRIGHT, Chief Judge.

On May 17, 1985, the Special Master filed a report issuing recommendations concerning the appropriate disposition of eighty-two pending motions to dismiss or motions for summary judgment. By subsequent Court order, the Court directed that objections to the Special Master's report submitted pursuant to Fed.R.Civ.P. 53 shall be filed by July 1, 1985. As required, the Court has independently reviewed the record regarding the issues relating to the Master's report, including the relevant motions and responses thereto, and the objections filed to the report. See United States v. Louisiana, ___ U.S. ___, 105 S.Ct. 1074, 1080, 84 L.Ed.2d 73 (1985). Accordingly, the Court enters the following rulings in summary form, and, with respect to those recommendations approved by the Court, the Court hereby adopts the reasoning stated in the Master's report in support of those recommendations. Recommendations of the Master not adopted by the Court will be so designated.

COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT

1. The plaintiff's motion for partial summary judgment on liability issues under Sections 106(a) and 107(a) of CERCLA, 42 U.S.C. §§ 9606(a) and 9607(a), and Section 7003 of RCRA, 42 U.S.C. § 6973 —

A. The plaintiff's motion will be granted with respect to the following issues:

(1) The plaintiff's claim for recovery of response costs under CERCLA § 107 from defendant C.C.C. and CCCI. Over the Master's recommendation, the Court will, however, allow C.C.C. and CCCI to contest the amount of those response costs at trial by attempting to meet their burden under 42 U.S.C. § 9607(a) of establishing that those costs claimed are inconsistent with the National Contingency Plan;

(2) The plaintiff's claim that an imminent and substantial endangerment to the public health or welfare or the environment exists at the C.C.C. site within the meaning of CERCLA § 106;

(3) The plaintiff's request for injunctive relief against C.C.C. and CCCI to abate the endangerment under CERCLA § 106;

(4) The plaintiff's claim that an imminent and substantial endangerment exists at the C.C.C. site within the meaning of RCRA § 7003;

(5) The plaintiff's request for injunctive relief against C.C.C. to abate the endangerment under RCRA § 7003; and

(6) The scope of liability under RCRA § 7003 is joint and several unless the harm is found to be divisible.

B. The plaintiff's motion for partial summary judgment is otherwise denied and the following issues, among others, are subject to continued litigation:

(1) The extent of the endangerment;

(2) Whether the plaintiff's response costs are consistent with the National Contingency Plan;

(3) Whether the original generator defendants are liable with respect to the Government's claims under CERCLA §§ 106 and 107, that is, whether the original generator defendants in fact shipped wastes to the C.C.C. site;

(4) With respect to the plaintiff's claim under RCRA § 7003, whether the original generator defendants actually shipped waste to the C.C.C. site and whether these defendants contributed to the endangerment in terms of a causal connection;

(5) Whether the defendants are liable for response costs pursuant to this Court's equitable discretion under RCRA § 7003;

(6) Whether the harm is indivisible; and

(7) The liability of Norman Hjersted.

2. The plaintiff's motions for partial summary judgment against the defendants regarding defenses — The Court concludes the following as a matter of law:

(1) Although strict liability is applicable under CERCLA §§ 106 and 107, over the Master's recommendation the Court concludes that CERCLA § 107(b) provides affirmative defenses to such liability;

(2) Equitable defenses are available under CERCLA;

(3) The plaintiff is not required to comply with the statutory prerequisites of CERCLA § 104 or CERCLA § 112(a) in order to obtain recovery under CERCLA §§ 106 and 107;

(4) The plaintiff's claim under RCRA § 7003 is not barred because the plaintiff did not comply with the notice provisions of RCA § 3008, 42 U.S.C. § 6928; (5) The mere existence of an adequate remedy at law does not preclude injunctive relief under CERCLA;

(6) The statute of limitations found in CERCLA § 112 is not applicable in this case, although the equitable doctrine of laches may be considered by the Court;

(7) The provisions of RCRA and CERCLA are not facially unconstitutional; and

(8) The exception for mining wastes and fly ash found at CERCLA § 101(14)(C) applies only to subparagraph (C), and is not a general exception to the definition of "hazardous substances" under the remaining provisions of CERCLA § 101(14).

3. Motions for partial summary judgment regarding third-party plaintiff's right to contribution and third-party defendants' joint and several liability —

The Court concludes the following as a matter of law:

(1) Under CERCLA, if the harm caused by the defendants is determined to be indivisible under the theory of joint several liability, a right of contribution exists against third-party defendants for costs of injunctive relief and response costs imposed on or incurred by the defendants; and

(2) The third-party defendants' liability for contribution under CERCLA is several, but not joint and several, as liability for contribution does not extend beyond a tortfeasor's equitable share of the liability.

4. Motions concerning the right of third-party plaintiffs to seek injunctive relief against third-party defendant generators —

The Court declares as a matter of law, consistent with the Special Master's Report and Recommendation, that the right to seek injunctive relief under both RCRA and CERCLA is vested solely in the Government, therefore the Court has no jurisdiction to impose equitable remedies on third-party plaintiffs and counterclaim defendants.

5. The motions based on the theory of de minimis non curat lex —

Consistent with this Court's prior ruling and with the Special Master's Report and Recommendation, the Court declares that the application of the de minimis theory would be inconsistent with Congressional intent underlying RCRA and CERCLA, and therefore cannot be used as an absolute defense in this case.

6. Remaining issues presented in the pending motions: Consistent with the Master's Report, the Court declares as follows:

(1) A generator is not absolved of liability under CERCLA simply because it did not select the disposal site, because ownership of waste was transferred to a transporter, because, by selecting a site, the transporter would also be liable under § 107(a)(4), or because the waste was initially transported to another site before being transferred to the ultimate site;

(2) The motion for summary judgment by Schwinn Bicycle Company regarding the § 107(b)(3) defense must be denied as material facts are in dispute, but the defense may be raised with evidentiary support at the Phase I hearing.

(3) The conclusions and recommendations contained in the following sections of the Special Master's Report are adopted in their entirety:

(a) VIII. Miscellaneous generator liability issues —

(b) IX. Liability for hazardous substances sold to C.C.C. for treatment of other waste —

(c) X. In personam jurisdiction —

(d) XIII. Liability of KCP & L as past owner of C.C.C. site and as owner of facility.

7. Third-party generator defendant Wellman Dynamics Corporation's motion for summary judgment on the issue of continued corporate liability — a ruling on this motion is deferred pending further

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