United States v. Davis

• Decision Date: 15 December 1998
• Docket Number: C.A. No. 90-484.
• Citation: 31 F. Supp. 2d 45,48 ERC (BNA) 1006
• 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

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UNITED STATES OF AMERICA v. WILLIAM M. DAVIS, et al. v. AMERICAN CYANAMID, et al.

C.A. No. 90-484.

United States District Court, D. Rhode Island.

MEMORANDUM OF DECISION

ERNEST C. TORRES, District Judge.

The history of this litigation is described in United States v. Davis, C.A. No. 90-484, 1998 WL 682980 (D.R.I. Sept. 28, 1998), and United States v. Davis, 11 F. Supp. 2d 183, 186-87 (D.R.I. 1998). For present purposes it is sufficient to state that the United States commenced this action against United Technologies Corp. ("UTC") and eight other parties, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-75, in order to recover response costs associated with remediating a hazardous waste site. UTC, in turn, asserted claims for contribution and/or indemnity against several co-defendants and 138 third- and fourth-party defendants. In addition, UTC requested that the Court enter a judgment allocating responsibility among the parties for future response costs.

The government's claims against UTC have been settled, see Davis, 11 F. Supp. 2d at 194, and UTC's claims against all but fifteen of the contribution defendants either have been settled¹ or dismissed or have resulted in summary judgments in favor of the contribution defendants. Davis, 1998 WL 682890, at *1. What remains for resolution is UTC's request for a declaratory judgment allocating responsibility for future cleanup costs among the fifteen remaining contribution defendants (the "defendants").²

After carefully considering the testimony of the numerous witnesses presented and the voluminous exhibits introduced into evidence during a twenty-six-day bench trial, the Court makes the following findings of fact and draws the following conclusions of law.

Findings of Fact

I. Activity at the Site

During 1976 and most of 1977, a variety of chemical wastes were deposited on land in Smithfield, Rhode Island, owned by William M. Davis and his wife, Eleanor Davis (the "Site" or "Davis Site"). According to William Davis, the dumping began "late in 1976" and continued until approximately September of 1977. During that period, at least 844,275 gallons of hazardous wastes were dumped at the Site.

Almost all of the waste was delivered to the Site by four companies: CCC, CWR, Macera Brothers Container Service, Inc. ("Macera"), and Capuano (collectively the "transporters" or "the transporter defendants"). Small quantities of sewage sludge, "bunker C oil" and machine oil also were delivered by two other companies. Most of the waste was in liquid form and was delivered in either 5,000-gallon tanker trucks, fifty-five-gallon drums that had been loaded on flatbed trailers, or smaller containers ranging from five-gallon cans to small ampules, vials and jars.

The transporters collected the waste from 170 customers, including the generator defendants.

CWR and Macera did little more than haul the waste to various sites for disposal. CCC, on the other hand, also burned some of the flammable waste that it collected in an incinerator and transported the residue to disposal sites. In addition, CCC sold some of the liquid waste to salvagers and temporarily stored other waste in ten 5,000-gallon storage tanks or in drums. In the fall of 1977, there were approximately 13,000 drums of liquid waste on CCC's premises.³

Capuano operated its own waste disposal facility known as Sanitary Landfill. That facility was located in Cranston, Rhode Island, not far from the Davis Site. In the spring of 1977, Capuano received complaints about odors emanating from its facility. Consequently, it began diverting and transporting to the Davis Site some of the waste that otherwise would have been dumped at Sanitary Landfill.

William Davis oversaw all of the dumping. He determined what waste was accepted and where and how it was disposed of. Eleanor Davis performed bookkeeping services for the business; and the Davis's two children, who resided with their parents on the premises adjacent to the Site, occasionally helped their father.

When trucks arrived at the Site, William Davis prepared "receipts" on which he wrote the date, where the waste came from and the quantity of waste delivered. Usually, the driver making the delivery was required to sign the "receipt" and Davis directed him where to dump. Although Davis prepared "receipts" throughout the period that chemical wastes were dumped, he was unable to locate the receipts for deliveries made prior to January 10, 1977 or after July 7, 1977.

Tanker trucks arriving at the Site emptied their contents into large pits in the ground. Some of the drums and smaller containers were filled with liquids and some of the drums contained liquids floating on top of solid and/or semi-solid substances. All of the liquids were poured into the pits. Most of the empty drums and containers were sold, and the remaining ones, including small laboratory vials and bottles, were buried elsewhere on the Site. Drums containing residues of solid and/or semi-solid substances that could not be poured out were piled at various locations on the Site. Some of them were buried in the course of extinguishing a fire that occurred in July of 1977.

The liquid wastes dumped in the pits were allowed to percolate down into the soil. Many of them had distinctive physical characteristics. Some were red, blue or green, and some smelled like solvents. Occasionally, they caused suds to form in the small brook that ran through the Davis property.

All of the drums containing solid and semi-solid substances were delivered by Macera Disposal. Those substances consisted almost entirely of a brown, wax-like material that smelled like solvent.

II. The Environmental Damage and the Remediation Plan

Not surprisingly, the dumping at the Davis Site severely contaminated the soil, groundwater, and surface water and has caused the Site to be classified as a Superfund Site. The hazardous substances found at the Site may be grouped into three categories: volatile organic compounds ("VOC's"), semi-volatile organic compounds ("SVOC's") and metals.⁴

A number of the VOC's, including benzene, methyl ethyl ketone (MEK), methylene chloride, perchloroetheylene, a/k/a tetrachloroethylene (PCE), 1,1,1 trichloroethane (1,1,1-TCA), trichlorethylene (TCE), toluene, and xylene, have been detected in the soil, groundwater, and/or surface water at concentrations greater than two parts per million (ppm). Several metals, including cadmium, copper, cyanide, and nickel, also are present in the groundwater and surface water in concentrations well in excess of normal background levels. One or more of those hazardous substances was contained in the waste produced by each of the generator defendants during 1976 and 1977.

Given the concentrations of those hazardous substances and the soil and subsurface conditions at the Site, action was required in order to mitigate the damage already done and to prevent further harm to the environment and to the health of nearby residents. Accordingly, the Environmental Protection Agency (the "EPA") devised a remediation plan (the "Plan") designed to do three things: (1) clean up the soil by reducing the concentration of hazardous wastes to acceptable levels; (2) clean up the groundwater at the Site; and (3) extend water supply pipelines to nearby residents whose wells were contaminated. The Plan was published and circulated for public comment pursuant to § 117 of CERCLA, 42 U.S.C. § 9617. Later, it was modified by an Explanation of Significant Differences ("ESD") and was issued in final form as a Record of Decision ("ROD").

The estimated cost of implementing the Plan is $49 million. In addition, the United States has incurred enforcement costs of $6 million that, apparently, consist primarily of the expenses involved in litigating its claim against UTC. Thus, the total response costs are approximately $55 million. Under the terms of its settlement agreement with the government, UTC is obliged to pay $2.8 million in cash⁵ and has assumed responsibility for the soil remediation, which has an estimated cost of $14 million. See Davis, 11 F. Supp. 2d at 191.

Cleanup efforts began in July of 1997. Prior to that time, thirty-five drums labeled "Ferric Chloride" were removed from the Site. Since July of 1997, more than 1,000 drums and 10,000 jars, vials, and other small containers have been removed from the Site. Most of the drums were badly rusted, corroded and/or crushed.

Approximately 800 of the drums were found in close proximity to one another in an area called "Drum Removal Area 1." Four hundred and three of them were fifty-five-gallon drums containing a black or brown waxy substance. Analysis of representative samples of those drums revealed the presence of PCE, 1,1,1-TCA, TCE, various hydrocarbon petroleum distillates (e.g., xylene, toluene, ethylbenzene), and alaphatic and paraffinic hydrocarbons, which are constituents of wax. Two of the drums bore a "Pratt & Whitney" label, two were labeled "Magnaflux" or "Zyglo Magnaflux," one was labeled "Perm-a-chlor, Detrex Chemical," one was labeled "Exxon," and one was labeled "Chlorothene NU Dow Superior Solvent."

Twenty of the drums in Drum Removal Area 1 were green thirty-five-gallon drums labeled either "Kolene" or "Kolene Tufftride." They contained cyanide and high concentrations of potassium and sodium. One fifty-five-gallon drum labeled "Ashland Chemical Co.," "Danger," and "Tetrahydrafuran" contained a mixture of solvents, including acetone, methylene chloride, toluene, and xylene, and phenolic compounds such as methylphenol and dimethylphenol. Several other drums bore the names of some of the settling contribution defendants (e.g., Olin, DuPont and Ferro) and contained substances such as "sticky white paste" or "clear watery liquid." Still other drums were unlabeled and contained substances described as a "yellow-green gel" or "granular white chunks."

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