US v. Hardage, CIV-86-1401-P.
| Decision Date | 23 May 1990 |
| Docket Number | No. CIV-86-1401-P.,CIV-86-1401-P. |
| Citation | 761 F. Supp. 1501 |
| Parties | UNITED STATES of America, Plaintiff, v. Royal N. HARDAGE, et al., Defendants. ADVANCE CHEMICAL COMPANY, et al., Hardage Steering Committee Defendants and Third-Party Plaintiffs, v. ABCO, INC., et al., Third-Party Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY UNDER CERCLA SECTIONS 106 AND 107
At issue is the plaintiff United States' motion for partial summary judgment on liability filed June 1, 1989. The United States seeks summary judgment against the following defendants on the issue of their liability under Sections 106(a) and 107(a) of CERCLA,1 42 U.S.C. §§ 9606(a) & 9607(a): Cato Oil and Grease Company; Dal-Worth Industries, Inc.;2 Double Eagle Refining Co.; JOC Oil Exploration Company, Inc.; Oklahoma National Stock Yards Company; Rockwell International Corporation; and U.S. Pollution Control, Inc.3 Seven corporate defendants responded in opposition.4 Various parties filed a total of seventeen (17) briefs on the issues relating to liability. On February 2, 1990, this Court issued a Minute Order indicating the United States' motion for partial summary judgment on liability would be granted against all the above-listed defendants, except U.S. Pollution Control Inc.,5 and that this written order would follow. For the reasons set forth below, the United States' motion for partial summary judgment on liability is GRANTED as to defendants Cato, Dal-Worth, Double Eagle, JOC, Rockwell and Stock Yards. The United States' motion for partial summary judgment on liability is DENIED as to defendant USPCI.
The Hardage Site is located in rural McClain County, Oklahoma, approximately 15 miles southwest of Norman and ½ mile west of Criner. Hardage operated as a toxic waste disposal site from 1972 to 1980. During these years, in excess of an estimated 18,000,000 gallons of waste were disposed of at the Hardage Site. Approximately 400 companies generated the waste eventually disposed of at the Hardage Site.
On September 8, 1980 the United States Department of Justice ("DOJ") filed suit in United States v. Royal N. Hardage, ("Hardage I"), No. CIV-80-1031-W (W.D. Okla.) on behalf of the EPA against the Hardage Site owner pursuant to Section 7003 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973. Operations at the Site ceased in November, 1980. On December 13, 1982, Judge West entered findings of fact and conclusions of law in Hardage I. 18 Envtl.Rep.Cas. (BNA) 1687 (W.D.Okla.1982). The Court found contamination of soil and groundwater as well as releases of contaminants into the air. The Court's Order concluded that the Hardage Site was dangerous and found Royal N. Hardage individually liable for remedial action at Hardage. Partial judgment was entered in 1983, and Hardage I was dismissed in 1986.
The EPA continued to study the Hardage Site and prepared a Feasibility Study to evaluate alternative remedial actions from a technical, environmental and cost-effective perspective. The studies of the Hardage Site were conducted by the EPA in 1982, 1983, and 1984. These studies concluded substantial work would be necessary to remediate the Hardage Site. On or about December 4, 1984 the EPA notified numerous companies, pursuant to Section 104 of CERCLA, 42 U.S.C. § 9604, of their status as potentially responsible parties ("PRPs") pursuant to Section 107 of CERCLA, 42 U.S.C. § 9607.
On June 25, 1986, DOJ filed this lawsuit. United States v. Royal N. Hardage, et al., No. CIV-86-1401-P (W.D.Okla.). The complaint asserted claims against thirty-six (36) companies potentially responsible for health threats posed by the Hardage Site. Most of the companies allegedly shipped between 100,000 and 1,700,000 gallons of hazardous substances to the Hardage Site.
On November 10, 1988, twenty-four (24) of these primary defendants stipulated to liability under Sections 106 and 107 of CERCLA, with Judgment entered that date. No. CIV-86-1401-P (W.D.Okla. Nov. 10, 1988, dkt. no. 1553). By this stipulation, the defendants acknowledged they were liable for response costs of the United States under Section 107 and that they share responsibility for implementation of a remedial action for the Hardage Site under Section 106.
The United States now brings the current motion to establish liability of the remaining seven additional defendants who did not join in the stipulation of liability. By this motion, the United States requests this Court to find each named defendant a liable party under CERCLA Section 107(a), from which the United States is entitled to recover the response costs it has incurred, or may incur, in investigating and cleaning up contamination at the Hardage Site. In addition, the United States seeks an additional finding that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from the Hardage Site, and that therefore these defendants are liable for injunctive relief under CERCLA Section 106(a).
The facts presented to the court upon a motion for summary judgment must be construed in a light most favorable to the nonmoving party. Board of Educ. v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982); United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). If there can be but one reasonable conclusion as to the material facts, summary judgment is appropriate. Only genuine disputes over facts which might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Finally, the movant must show entitlement to judgment as a matter of law. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985); Fed.R.Civ.P. 56(c).
Although the Court must view the facts and inferences to be drawn from the record in the light most favorable to the nonmoving party, "even under this standard there are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chem. Co., 849 F.2d 1269, 1273 (10th Cir.1988). As stated by the Supreme Court, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R. Civ.P. 1).
The Supreme Court articulated the standard to be used in summary judgment cases, emphasizing the "requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). A dispute is "genuine" "if a reasonable fact-finder could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The Court stated that the question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. at 2511-12. "The mere existence of a scintilla of evidence in support of the party's position will be insufficient; there must be evidence on which the jury could reasonably find for the party." Id. at 252, 106 S.Ct. at 2512.
Rule 14(B) of the Western District of Oklahoma provides a framework for determining undisputed facts at the summary judgment stage. The Rule provides:
The brief in support of a motion for summary judgment (or partial summary judgment) shall begin with a section that contains a concise statement of material facts as to which movant contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which movant relies. The brief in opposition to a motion for summary judgment (or partial summary judgment) shall begin with a section which contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of the movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.
An analysis of the United States' motion and replies and the multiple responses and surreplies of the various defendants, reveals the following facts are undisputed within the meaning of Rule 14(B) for the purposes of this motion only. Fed.R.Civ.P. 56(e); W.D.Okla.R. 14(B):
1. Hazardous substances are located at the Hardage Site.
2. Hazardous substances have been released from the Hardage Site in to the soil and groundwater at, around and beneath the Hardage Site.
3. Hazardous substances from the Hardage Site have migrated from the Site and have contaminated or threaten to contaminate the Criner Creek/North Criner Creek alluvial aquifer.
4. The Criner Creek/North Criner Creek alluvial aquifer has been used and has the potential to be used as a source of drinking water for humans.
5. The United States has incurred costs of investigation and other activities in response to releases and threatened releases from the Hardage Site.
6. The President, through his delegated authority, has determined that there may be an imminent and substantial endangerment to the public...
To continue reading
Request your trial
-
City of Tulsa v. Tyson Foods, Inc., 01-CV-0900-EA(C).
...that the release or threatened release of hazardous substances from the facility caused it to incur response costs."); U.S. v. Hardage, 761 F.Supp. 1501 (W.D.Okla.1990). Although the definition of "facility" is expansive enough to include the Watershed within its scope, the factual record b......
-
New York v. Next Millennium Realty, LLC
...supporting the presence of allegedly elevated levels of hazardous substances in the soil samples of the site); U.S. v. Hardage , 761 F.Supp. 1501, 1510 (W.D.Okla.1990) (“The presence of hazardous substances in the soil, surface water, or groundwater of a site demonstrates a release.”)4. The......
-
US v. Shell Oil Co.
...including toluene and xylene is sufficient to establish that the site is a "facility" for CERCLA purposes. United States v. Hardage, 761 F.Supp. 1501 (W.D.Okl.1990). The waste in the pits is characterized by low pH, high sulfur and high organic content. Among other arguably hazardous substa......
-
US v. Petersen Sand and Gravel, Inc., 91 C 5835.
...1092, 1096 (D.Ariz.1991); United States v. Western Processing Co., 756 F.Supp. 1416, 1420 (W.D.Wash.1991); United States v. Hardage, 761 F.Supp. 1501, 1516-17 (W.D.Okla.1990). Here, it is undisputed that Tewes did not select the Petersen, Inc. site as the site to deliver the fly ash. Henry ......
-
The Comprehensive Environmental Response, Compensation, and Liability Act: the correct paradigm of strict liability and the problem of individual causation.
...n. 8 (D. Mass. 1989). (436.) See Mid Valley Bank v. N. Valley Bank, 764 F. Supp. 1377, 1387 (E.D. Cal. 1991); United States v. Hardage, 761 F. Supp. 1501, 1510 (W.D. Okla. 1990); United States v. Mottolo, 695 F. Supp. 615, 623 (D.N.H. 1988); Washington v. Time Oil Co., 687 F. Supp. 529, 532......
-
Environmental Contamination at U.S. Military Bases in South Korea and the Responsibility to Clean Up
...testiied that these items are known sources of 72. Id. at 193. 73. Id. 74. 630 F. Supp. 1361, 1394, 16 ELR 20763 (D.N.H. 1985). 75. 761 F. Supp. 1501, 21 ELR 20706 (W.D. Okla. 1990). 76. 697 F. Supp. 89, 19 ELR 20357 (D. Conn. 1988). 77. 935 F.2d 1343, 21 ELR 21133 (2d Cir. 1991), cert. gra......