United States v. SOLVENTS RECOVERY SERV., ETC.
| Decision Date | 20 August 1980 |
| Docket Number | Civ. A. No. H 79-704. |
| Citation | 496 F. Supp. 1127 |
| Parties | UNITED STATES of America v. SOLVENTS RECOVERY SERVICE OF NEW ENGLAND and Lori Engineering Company. |
| Court | U.S. District Court — District of Connecticut |
Frank H. Santoro, Asst. U.S. Atty., Richard Blumenthal, U.S. Atty. for the District of Connecticut, New Haven, Conn., Erica L. Dolgin, Atty., Hazardous Waste Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff.
Michael L. Rodburg, Gerald Krovatin, Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, Roseland, N.J., Robert L. Wyld, Thomas D. Clifford, Shipman & Goodwin, Hartford, Conn., Robert H. Hall, Newtown, Conn., for defendant Solvents Recovery Service of New England.
Rolland Castleman, Stanley Falkenstein, Lessner, Rottner, Karp & Plepner, P. C., Manchester, Conn., for defendant Lori Engineering Co.
Austin Carey, Jr., Hoppin, Carey & Powell, Hartford, Conn., Peter Cooper, Sosnoff, Cooper, Whitney & Cochran, New Haven, Conn., Daniel Millstone, Connecticut Fund for the Environment, Inc., New Haven, Conn., for amici curiae and applicants for intervention Connecticut Fund for the Environment, Inc., Southington Citizens Action Group, Edward Avery, Joan Bradley, Edwina Ludecke and Gladys Langton.
David P. Kelley, Thalberg & Kelley, Southington, Conn., for amicus curiae and applicant for Intervention Board of Water Commissioners for the Town of Southington.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS CLAIM ONE OF THE COMPLAINT OR TO STRIKE PRAYERS OF RELIEF FROM THE COMPLAINT
Introduction
The United States brings this action, pursuant to section 7003 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973, for injunctive relief to abate and remedy allegedly unlawful groundwater pollution in Southington, Connecticut. In Claim One of the complaint, the plaintiff alleges that the defendants, Solvents Recovery Service of New England ("Solvents Recovery") and Lori Engineering Company ("Lori"), are responsible for the seepage of highly toxic chlorinated hydrocarbons into underground wells which have until recently been used to supply drinking water to residents of the Town of Southington.1 The United States seeks an order requiring the defendants to undertake a number of remedial measures to clean up this groundwater pollution and provide safe drinking water for Southington residents.
The defendants have moved, pursuant to Rule 12(b)(6), Fed.R.Civ.P., to dismiss Claim One for failure to state a claim upon which relief can be granted. In the alternative, they seek an order striking certain paragraphs of the Prayer for Relief in the plaintiff's complaint, see Rule 12(f), Fed.R. Civ.P., on the ground that the relief requested therein is unauthorized by section 7003 of RCRA.
These motions present novel questions concerning the proper scope of section 7003 and the nature of the rights and remedies which are sanctioned by that statute. Upon consideration of the statutory language, the legislative history and purpose of section 7003 and RCRA generally, and the evolving federal common law of nuisance in pollution cases, the court concludes, for the reasons stated at length below, that: the federal common law of nuisance governs an action brought under section 7003; that body of common law, as applied to an incident of groundwater pollution, does not require an allegation of interstate effects (such as pollution originating in one state migrating to another); the government need not allege that the acts of "disposal" which gave rise to the imminently hazardous condition at issue in a section 7003 case continued up to the date of the filing of the complaint; and the application of the federal common law of nuisance in a section 7003 case is not impermissibly retroactive even though some of the acts which caused the hazardous condition antedated the enactment of RCRA.
Accordingly, the court holds that Claim One states a cause of action for injunctive relief under section 7003 and denies the motions to dismiss. Moreover, although it would be premature to rule on the nature of the relief, if any, which the United States might ultimately establish to be appropriate, the court cannot now determine that any of the relief sought by the plaintiff is, as a matter of law, outside the scope of the remedies authorized by section 7003. Therefore, the defendants' alternative motions to strike certain paragraphs of the Prayer for Relief are denied.
On a motion to dismiss, the starting point for the court's analysis must be the allegations of the complaint, which are to be taken as true and viewed in the light most favorable to the plaintiff.2 Only if "it appears beyond doubt that the plaintiff can prove no set of facts . . . which would entitle it to relief"3 may the court dismiss Claim One. The pertinent allegations of the complaint are summarized below.
The business of defendant Solvents Recovery, which is located in Southington, is the distribution, recovery and disposal of industrial solvents. Since it commenced operations in 1955, Solvents Recovery has accepted waste products (including chlorinated organic solvents) from industries in New England, processed those materials in order to recover usable chemicals, and returned the recovered chemicals to industry for reuse.
Among the chlorinated hydrocarbons which Solvents Recovery receives, processes and distributes are tetrachloroethylene, chloroform, trichloroethylene, 1,1,1 trichloroethane, dichloroethane and carbon tetrachloride. All of these chemicals are either known or suspected to be carcinogenic. In addition, exposure to some or all of these chemicals has caused serious illnesses or disorders in human beings. For example, trichloroethylene may cause cell mutations, damage the nervous system and induce liver disorders. The nervous, pulmonary and cardiovascular systems, as well as the liver and kidneys, may be injured by exposure to 1,1,1 trichloroethane. Similar toxic effects have been ascribed to the other organic chemicals listed above.
The operations of Solvents Recovery produce distilled and undistilled waste materials. Since its founding, Solvents Recovery has temporarily stored such materials — including the chemicals referred to in the previous paragraph — in drums on its property; until 1979, these drums were simply placed on the ground on Solvents Recovery's premises. As a result of Solvents Recovery's method of operating and maintaining its plant, substantial amounts of these chemical wastes leaked and spilled from the drums onto and into the ground on its property.
Moreover, Solvents Recovery has directly disposed of millions of gallons of chemical wastes, which are the residues of its recovery and distillation processes, into the ground at its Southington property. During the period 1957-67, it dumped these wastes into "unlined lagoons" on its plant site. Although these "lagoons" were drained and covered in 1967, a significant amount of waste material had already entered the earth by that time; it remained in the ground thereafter.
The chemical wastes which entered the soil on the Solvents Recovery site have "percolated" downward into the underlying groundwater and migrated generally in a southeasterly direction. The migration of these toxic organic wastes has reached the aquifer — i.e., the subterranean stratum which is saturated with groundwater4 — in which Well No. 6 of the Board of Water Commissioners for the Town of Southington is located. This well, which is approximately 1600 feet south-southeast of the Solvents Recovery property, is one of six public wells maintained by the Board to provide drinking water to residents of Southington. With the exception of carbon tetrachloride, each of the chemicals referred to previously has been found in Well No. 6.
Defendant Lori is engaged in the business of manufacturing security devices, tools and dies at its plant in Southington. It uses approximately 110 gallons of a degreasing solvent monthly in order to clean the metal parts which it assembles in the factory. Chlorinated hydrocarbons, including trichloroethylene, chloroform, 1,1,1 trichloroethane and dichloroethane, are major components of the degreasing solvent used by Lori. Until recently, Lori disposed of most of this spent material by dumping it into an "unlined lagoon" on its property. This "lagoon" is located approximately 250 feet southwest of Well No. 5 of the Board of Water Commissioners for the Town of Southington; Well No. 5 was a source of drinking water for the town. Lori also poured quantities of used degreasing solvent into the ground elsewhere on its property. The waste materials dumped into the ground by Lori, like those disposed of by Solvents Recovery, have "percolated" downward through the soil, contaminating the underlying groundwater. The contaminated groundwater beneath Lori's property has migrated to the aquifer in which Well No. 5 is located. All of the chlorinated hydrocarbons referred to above, except dichloroethane, have been found in Well No. 5.
Wells No. 5 and No. 6 (along with Well No. 4) have recently been removed from service by the Board of Water Commissioners as a result of tests which established the presence of toxic chlorinated hydrocarbons in these sources of drinking water.
The statutory basis for Claim One of the plaintiff's complaint is section 7003 of RCRA, 42 U.S.C. § 6973, which provides:
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