US v. Amtreco, Inc., Civ. A. 90-31-VAL (WDO).

• Citation: 809 F. Supp. 959
• Decision Date: 09 February 1993
• Docket Number: Civ. A. 90-31-VAL (WDO).
• Parties: UNITED STATES of America, Plaintiff, v. AMTRECO, INC., et al., Defendants.
• Court: United States District Courts. 11th Circuit. Middle District of Georgia

809 F. Supp. 959

UNITED STATES of America, Plaintiff, v. AMTRECO, INC., et al., Defendants.

Civ. A. 90-31-VAL (WDO).

United States District Court, M.D. Georgia, Valdosta Division.

December 22, 1992.

As Corrected February 9, 1993.

COPYRIGHT MATERIAL OMITTED

Frank L. Butler, III, Macon, GA, Valerie Ann Lee, Heidi E. Weckwert, Washington, DC, for U.S.

Howard Bridges Slocumb, Berrien L. Sutton, Homerville, GA, for Amtreco, Inc. and James L. Dickerson.

Alan M. Wolper, Charles A. Perry, Atlanta, GA, for American Tel. and Tel. and Western Elec.

J. Converse Bright, Valdosta, GA, for Lee Engineering & Const. Co.

ORDER

OWENS, District Judge.

Before the court are the parties' cross-motions for summary judgment in this action to recover response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. ("CERCLA"). The United States seeks partial summary judgment on the issue of liability and on some of defendants' defenses. Defendants seek summary judgment on the entire case. After careful consideration of the arguments of counsel, the relevant case law, and the record as a whole, the court issues the following order.

FACTS

This case has a long and complex history in this court. On March 31, 1977, defendant James Dickerson incorporated Amtreco, Inc. ("Amtreco"), a business which treated and sold wooden fence posts. Dickerson was the president, sole shareholder, and sole director of Amtreco.

In the summer of 1977, construction of a wood treatment plant for Amtreco began. The plant was constructed upon a 5.6 acre tract of land in Homerville, Georgia, that was owned by Dickerson. Between September 1977 and March 1978, thousands of gallons of creosote, a primary chemical used in the wood-treating process that is classified as a hazardous substance under 42 U.S.C. § 9601(14), were delivered to the Amtreco site.

On March 30, 1978, Dickerson conveyed the property on which the plant was constructed to Amtreco in fee simple. It is unclear whether Amtreco began wood-treating operations before or after the conveyance; however, as disputed facts are to be construed in favor of Amtreco and Dickerson for purposes of this motion, the court will assume that wood-treating operations began on March 30, 1978, when Dickerson no longer owned the property. Amtreco has held title to the property through the time of the filing of this lawsuit.¹

Amtreco operated the wood treatment plant until sometime in 1980, when it was forced to close due to financial hardship. In January, 1984, representatives from the Environmental Protection Division of the Georgia Department of Natural Resources ("Georgia EPD") entered the Amtreco site, and, after collecting and testing samples from the site, they notified the Environmental Protection Agency ("EPA") in May. On May 16, 1984, the EPA conducted an investigation of the Amtreco site and determined that hazardous wastes were present² and that they should be removed from the site.

On July 19, 1984, the EPA issued an administrative order requiring Dickerson and Amtreco³ to initiate a cleanup at the Amtreco site. Under the administrative order, Dickerson and Amtreco were given until July 24, 1984, to begin the cleanup, and they were to complete the cleanup within forty-two days. Dickerson and Amtreco submitted a proposal to the EPA to use biodegradation to clean the site, and the EPA extended the July deadline in order to consider the proposal.

On August 27, 1984, the EPA rejected the proposal on the ground that it was not an adequate method to remove the waste from the Amtreco site. The EPA then informed defendants that it would begin a cleanup of the site on September 5, 1984, using funds from the Hazardous Substance Response Trust Fund ("Superfund").

On September 4, 1987, Dickerson and Amtreco sought to block the EPA action by filing a suit in this court for injunctive and declaratory relief from the EPA's proposed cleanup. This court ultimately denied the relief and held that the EPA was entitled to enter the Amtreco site and conduct a cleanup action there. United States v. Dickerson, 660 F.Supp. 227 (M.D.Ga.1987) ("Dickerson, I"). This court specifically found that the EPA had established that "there has been a release or may be a release of a hazardous substance" at the site, id. at 231; therefore, the EPA had the right to conduct a response action. Id.⁴ The Eleventh Circuit affirmed Dickerson I in Dickerson v. Administrator, Environmental Protection Agency, 834 F.2d 974 (11th Cir. 1987).

On July 2, 1987, the EPA selected off-site transport as the method to remove the hazardous materials from the Amtreco site, and funding for the cleanup was authorized. The actual cleanup took place from August 10, 1987, to March 18, 1988.

On April 26, 1990, the United States filed its complaint in this court seeking from defendants the recovery of all costs connected to the cleanup, an amount in excess of $1,079,955. In addition, the United States seeks civil penalties to compel defendants to comply with certain information requests.

In its motion, the United States seeks partial summary judgment on the issue of liability and on some of defendants' defenses. Defendants deny all liability and seek summary judgment on all issues in the case.

DISCUSSION

The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") was enacted by Congress in December 1980. It authorizes the EPA to respond⁵ to releases or threatened releases of hazardous substances into the environment through such means as investigation, evaluation, and cleanup. See, e.g., Dickerson v. Administrator, Environmental Protection Agency, 834 F.2d 974, 976 (11th Cir.1987). CERCLA also establishes the Hazardous Substances Response Trust Fund ("Superfund") to fund these EPA responses. 42 U.S.C. § 9631.

In addition, CERCLA provides that the EPA can recover the costs of its response activities from responsible parties. 42 U.S.C. § 9607(a). This provision serves not only to replenish the Superfund for future cleanup activities, but also to place the ultimate responsibility for cleaning up hazardous waste problems upon those who created the problems. See United States v. Fleet Factors Corp., 901 F.2d 1550, 1553 (11th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991).

In this case, the United States is seeking to recover the costs it incurred in cleaning up the Amtreco site. In order to narrow the issues, the United States seeks partial summary judgment on CERCLA liability against defendants Amtreco and Dickerson and also on some of defendants' affirmative defenses. Defendants have filed a cross-motion for summary judgment.

I. LIABILITY UNDER CERCLA

In order to establish liability under CERCLA, 42 U.S.C. § 9607(a), the United States must prove the following four elements:

1. The Amtreco site is a facility as defined in 42 U.S.C. § 9601(9).

2. There was a release or threatened release at the site.

3. The government incurred response costs as a result of the release or threatened release.

4. Defendants are potentially responsible persons as defined in 42 U.S.C. § 9607(a)(1)-(a)(4).

E.g., United States v. Mottolo, 695 F.Supp. 615, 622-23 (D.N.H.1988). A determination of the amount of recoverable costs is not an element of liability. E.g., United States v. Stringfellow, 661 F.Supp. 1053, 1059 (C.D.Cal.1987).

A. The Amtreco Site Is a Facility.

There is no dispute that the Amtreco site is a facility. Section 9601(9) of CERCLA defines "facility" as follows:

(A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; ....

Since creosote and other hazardous wastes were present on the Amtreco site prior to the EPA cleanup, the Amtreco site is a facility under CERCLA.

B. A Release or Threatened Release Occurred at the Amtreco Site.

The second element, that a release or threatened release occurred at the Amtreco site, was previously determined by this court in Dickerson I, 660 F.Supp. at 231. Defendants are precluded from retrying this issue by the doctrine of collateral estoppel.

Collateral estoppel occurs if the following conditions are met:

(1) the issue at stake was identical to the one involved in the prior litigation;

(2) the issue was actually litigated in the prior litigation; and

(3) the determination of the issue in the prior litigation was a critical and necessary part of the judgment in that earlier action.

In re Ikner, 883 F.2d 986, 989 (11th Cir. 1989) (citing In re Halpern, 810 F.2d 1061, 1064 (11th Cir.1987)); United States v. Kramer, 757 F.Supp. 397, 417 (D.N.J.1991).

In Dickerson I, Dickerson and Amtreco attempted to prevent the EPA from entering the Amtreco site and conducting a CERCLA response action while the United States sought to enforce the EPA's order to clean the site. In order to establish that the EPA had the right to enter the Amtreco site, the United States was only required to show that there was a release or threatened release at the site. Dickerson I, at 231; 42 U.S.C. § 9604(e)(5)(B).

This court first made the following factual findings concerning the physical condition of the Amtreco site:

An EPA inspection of the site ... revealed the presence of two hundred and fifty-two drums in various conditions containing creosote constituents and hazardous solvents such as methyl ethyl ketone and benzene. Also present at the site are a pressure cylinder, two 20,000 gallon tanks and one 10,000 gallon tank, all of which contain, in various amounts, waste creosote. The site also contains two large, unlined surface impoundments, that contain large quantities of waste creosote.

Ten residences

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