United States v. Ottati & Goss, Inc.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
Citation630 F. Supp. 1361
Decision Date09 December 1985
Docket NumberNo. C80-225-L.,C80-225-L.
PartiesUNITED STATES, et al. v. OTTATI & GOSS, INC., et al.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard V. Wiebusch, U.S. Atty., Concord, N.H., William D. Evans, Jr., Land & Natural Resources Div., Sheila D. Jones, U.S. Dept. of Justice, Washington, D.C., E. Michael Thomas, Office of Regional Counsel, Philip R. Boxell, Asst. Regional Counsel —USEPA, Boston, Mass., for the U.S.

Robert P. Cheney, Asst. Atty. Gen., Concord, N.H., for the State of N.H. (intervenor).

Engel & Morse, Mark S. Gearreald, Exeter, N.H., for the Town of Kingston, N.H. and the Town of Kingston Bd. of Selectmen (intervenor).

Wadleigh, Starr, Peters, Dunn & Chiesa by Theodore Wadleigh, Manchester, N.H., Guterman, Horvitz, Rubin & Rudman by Stanley H. Rudman, Boston, Mass., for Great Lakes Container Corp.

Sumner F. Kalman, Plaistow, N.H., Bracken & Baram, by Thomas B. Bracken, Boston, Mass., for Senter Transportation Co., Concord Realty Trust, Bernard Senter and Sally Senter.

Copithorne & Copithorne, David M. Copithorne, Laconia, N.H., for Ottati & Goss, Inc., Louis Ottati, Wellington Goss.

Stark & Peltonen by Rodney L. Stark, Manchester, N.H., for K.J. Quinn Co.

Sheehan, Phinney, Bass & Green by Claudia C. Damon, Manchester, N.H., for Lewis Chemical Co.

Hamblett & Kerrigan by John V. Dwyer, Nashua, N.H., Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan by James Stewart, Roseland, N.J., for Solvents Recovery Service of New England.

Brown & Nixon by Stanley M. Brown, Manchester, N.H., Howard E. Post, Intern. Minerals & Chemical Corp., Northbrook, Ill., for Intern. Minerals & Chemical Corp.

McLane, Graf, Raulerson & Middleton by Bruce Felmly, Manchester, N.H., Goodwin, Procter & Hoar by Paul F. Ware, Jr., Boston, Mass., for Lilly Indus. Coatings, Inc.

Devine, Millimet, Stahl & Branch by Richard Nelson, Manchester, N.H., Bingham, Dana & Gould by Paul J. Lambert, Boston, Mass., for General Elec. Co.

FINDINGS OF FACT AND RULINGS OF LAW

LOUGHLIN, District Judge.

The United States of America instituted suit on behalf of the Administrator of the United States Environmental Protection Agency (hereafter EPA) by complaint dated May 15, 1980.

This is a civil action instituted pursuant to Section 7003 of the Resource Conservation Recovery Act ("RCRA") 42 U.S.C. 6973.

This is also a civil action under Sections 301 and 309 of the Clean Water Act, 33 U.S.C. §§ 1311 and 1319 against defendant Great Lakes Container Corporation (hereafter GLC).

The original suit filed May 15, 1980 was against the following defendants.

Ottati & Goss, Inc., a corporation organized and existing under the laws of the State of New Hampshire.

Louis Ottati, Jr., president of Ottati & Goss, Inc.

Wellington Goss, vice-president of Ottati & Goss, Inc.

Senter Transportation Company, Inc., a Massachusetts corporation registered to do business in New Hampshire and the owner and lessor of the Ottati & Goss site at times relevant up to June 29, 1979. On that date, Senter Transportation Company, Inc. sold the site and assigned its interest in the lease to the Concord Realty Trust.

The Concord Realty Trust, a trust registered in the Rockingham County Registry of Deeds, Kingston, New Hampshire. The Concord Realty Trust is the owner and lessor of the Ottati & Goss site.

Sally E. Senter, a trustee of the Concord Realty Trust.

Richard A. French, an operator of the Ottati & Goss site.

French Processing, Inc., an operator of the Ottati & Goss site.

Great Lakes Container Corporation, a corporation organized and existing under the laws of the State of Michigan and having a branch barrel reconditioning plant at and doing business at the Great Lakes Container Corporation site at Rural Route 125, Hanverhill Road, Kingston, New Hampshire.

Subsequently, in October, 1980, the State of New Hampshire was allowed to intervene as a plaintiff. Then, in November, 1980 the Town of Kingston was also allowed to intervene as a plaintiff.

On December 2, 1980 the court made the following order on plaintiff's motion for preliminary injunction.

Pending hearing on the merits or further order of this court, defendants are ordered to cease storing and disposing of solid and hazardous waste at the Ottati & Goss site. Defendants shall not conduct any activities there without prior approval of EPA and the State, until such time as all solid and hazardous waste is removed from the site.
Defendants shall formulate a plan on or before January 6, 1981 relative to fencing, guarding the site area with security personnel, maintaining suitable firefighting equipment on site and in the event the defendants, individually severally or jointly are found liable, specifically set forth remedial measures.
Defendants shall formulate a plan for the removal of all solid and hazardous waste from the Ottati & Goss site, such plan to be submitted for approval to the EPA and the State of New Hampshire.

On January 20, 1981 the court granted summary judgment as to Sally Senter as an individual.

On August 13, 1982 third-party actions were brought against the following defendants: Solvents Recovery Service of New England, Inc. (SRS), General Electric (GE), Lewis Chemical Corporation and Lilly Chemical Products, Inc.

Solvents Recovery Service of New England, Inc. is a corporation organized under the laws of the State of Connecticut with a principal place of business in Southington, Connecticut.

General Electric is a corporation organized under the laws of the State of Delaware and germane to this case, having a place of business in Chelsea, Massachusetts.

Lewis Chemical Corporation is a corporation organized under the laws of the Commonwealth of Massachusetts, having a principal place of business in Hyde Park, Massachusetts.

Lilly Chemical Products, Inc. is a corporation organized under the laws of the State of Indiana and germane to this case, having a place of business in Templeton, Massachusetts.

On September 14, 1982 a third-party action was brought against International Minerals and Chemicals Corporation (IMC).

International Minerals and Chemical Corporation is a corporation organized under the laws of the State of New York with a principal place of business in Northbrook, Illinois.

The area involved in this location is located west of Route 125 in Kingston, New Hampshire. One parcel of land consists of approximately 28 acres and is owned by Senter Transportation Company which has leased approximately one acre to the Ottati & Goss corporation.

The court after hearing pre-view statements with the assistance of counsel took a view of the premises. The view also included terrain east of Route 125 which consisted of a wet, marshy area. A view can be considered as evidence. Chouinard v. Shaw, 99 N.H. 26, 104 A.2d 522 (1954). The view was taken while the premises were snow covered and material had been removed from certain areas.

While on the view the court saw and noted the area for the purposes of this litigation, i.e., two brooks given the sobriquet of the North and South Brooks. Also observed were buildings formerly used by the Great Lakes Container Corporation, various wells, a burst trailer, roadways, Hampton Electric Power Company lines, so-called lagoon area, contours of Route 125 on its easterly and westerly bounds, contiguous property lines, wooded areas, set areas, declivities, slopes, depressions and elevations brought to the court's attention. Additionally, there was a general overall view of the area as demonstrated by counsel.

Evidence was adduced during the trial that some 400 million years ago, this area of New Hampshire was part of a large basin of the sea into which a whole series of sands, silts, fine-grain materials, were deposited as sediments. After 30,000 to 40,000 feet of what became sandstones, sand and clays had accumulated, the beds were worked, folded and faulted over 150 million years into a very compact and very hard bedrock, called the Elliot Formation.

At a time 50,000 to 60,000 years ago, there was glacial ice two miles high over the area, with its weight pushing down on the bedrock; when the ice melted the pressure was released causing fractures and weaknesses, with erosion, and in those areas valleys developed.

At this time, there was a geological-climatological event that changed the surface of the area even more. This large ice sheet pushed down from Canada riding the top of the bedrock and scouring it, scooping it up, digging and depositing, and creating till, a very fine-grain material formed as a blanket at the bottom of the ice sheet. The till is dense, tough and relatively impermeable and exists as a discontinuous blanket over the bedrock at Kingston.

The Kingston site is located on two parcels of land, west of New Hampshire Route 125 in Kingston, New Hampshire and of a fresh water marsh east of Route 125 which extends to Country Pond.

One parcel of land consists of approximately twenty-eight (28) acres owned by the defendant Senter, who leased approximately one (1) acre of the property to Ottati & Goss Corporation, six (6) acres to Great Lakes Container Corporation and a larger area to the Austin Powder Company. The second parcel consists of approximately five and eighty-eight one-hundredths (5.88) acres owned by Great Lakes Container Corporation. The marsh consists of approximately twenty (20) acres and was purchased by IMC in 1984 during the course of this trial.

Maximum land elevation is approximately one hundred forty (140) feet above mean sea level to the north, south, and west of the site and slopes to approximately one hundred twenty-five (125) feet above mean sea level at the eastern edge of the site along Route 125.

Two unnamed surface brooks on site were identified as the North Brook and South Brook in the evidence. North Brook flows eastward across the site, passing under Route 125 via a culvert and then into the marsh area west of...

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