US v. Mottolo

Citation695 F. Supp. 615
Decision Date29 August 1988
Docket NumberCiv. No. 83-547-D,84-90-D.
CourtU.S. District Court — District of New Hampshire
PartiesUNITED STATES of America v. Richard MOTTOLO, et al. STATE OF NEW HAMPSHIRE v. Richard MOTTOLO, et al.

695 F. Supp. 615

Richard MOTTOLO, et al.
Richard MOTTOLO, et al.

Civ. Nos. 83-547-D, 84-90-D.

United States District Court, D. New Hampshire.

August 29, 1988.

695 F. Supp. 616
695 F. Supp. 617
695 F. Supp. 618
U.S. Atty. by Susan L. Howard, Asst. U.S. Atty., Concord, N.H., F. Henry Habicht, II, Action Asst. Atty. Gen., Elizabeth Yu, Andrew S. Hogeland, Atty. Environmental Enforcement Section Land and Natural Resources Div. U.S. Dept. of Justice, Washington, D.C., Lynn Peterson, Office of Regional Counsel, U.S. E.P.A., Boston, Mass., for U.S

Engel & Morse, P.A. by Lynn D. Morse, Exeter, N.H., for Richard Mottolo and Service Pumping & Drain Co.

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

Sheehan, Phinney, Bass & Green, P.A. by James E. Higgins, and Claudia C. Damon, Manchester, N.H., for Lewis Chemical Corp. and Carl Sutera.

Attorney General's Office by Peter G. Beeson, Environmental Protection Div., Concord, N.H., for State of N.H.

Carl Sutera, Lewis Chemical Corp., Boston, Mass., pro se.


DEVINE, Chief Judge.

Plaintiffs United States of America, on behalf of the United States Environmental Protection Agency ("EPA"), and the State of New Hampshire bring these consolidated civil actions pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9675, amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L.No. 99-499, 100 Stat. 1613 (1986), and New Hampshire state law. Plaintiffs seek reimbursement of costs they incurred in cleaning up a hazardous waste dump in Raymond, New Hampshire. Plaintiffs seek recovery from defendants Service Pumping and Drain Co., Inc. ("Service"), a Massachusetts corporation; Richard Mottolo, owner of the land on which the dump was located ("the Mottolo site"), and president, treasurer, and owner of Service; K.J. Quinn and Company, Inc. ("Quinn"), a Delaware corporation; Lewis Chemical Company ("Lewis"), a Massachusetts corporation; and Carl Sutera, president and principal shareholder of Lewis. The Court's jurisdiction is based on 28 U.S. C. § 1345 and 42 U.S.C. § 9613(b).

By way of a joint motion, the United States and New Hampshire move for partial summary judgment against all defendants. Defendants object. All parties have filed multitudinous memoranda, exhibits, affidavits, transcripts of deposition testimony, and other documents to support their respective positions; accordingly, the Court finds a hearing to be unnecessary and rules on the documents as filed.1 See Rule 11(g), Rules of the United States District Court for the District of New Hampshire.

Factual Background and Prior Proceedings

The Mottolo site was first reported to authorities by an off-duty local police officer who discovered the site while hunting. Subsequent on-site investigation by the State of New Hampshire revealed a dump in which a large number of drums and pails of liquid waste had been compacted by bulldozers or other earthmoving equipment and partially buried. Based on the physical characteristics of the drums, the strong solvent smell emanating from the area, bright multi-colored liquids visibly leaking from the containers, and an upswelling of groundwater in several locations between the site and a creek downhill with odor and color consistent with the leachate, the investigators concluded that the drums probably contained hazardous materials which

695 F. Supp. 619
most likely were leaching into the environment

The State undertook further investigation, including taking and analyzing surface and groundwater samples, installing groundwater monitoring wells, and ordering engineering and geohydrological studies. This investigation confirmed: (1) that chemical wastes were leaching from the partially-buried drums and other containers into the soil and that the soil was atop a groundwater aquifer which supplied water to neighboring private wells, and (2) that the leaching wastes were also contaminating ground and surface waters draining into the creek, which in turn fed the Exeter River, a public drinking-water supply.

In the spring of 1980, the State asked EPA to conduct drum removal activities at the site. The removal process, which lasted approximately from September 1980 to February 1982 and included excavating and temporarily storing the drums, confirmed that containers at the site had been thrown haphazardly atop each other among boulders, that the majority of the containers were crushed, punctured, corroded, and disfigured, and that many were leaking. EPA determined that the improper manner of the containers' disposal, the haphazard comingling of chemicals, and the accessibility of the site not only created a hazard to ground and surface water, but also posed a risk of fire, explosion, vapor release, and possible inhalation or dermal contact.

EPA ultimately recovered more than 1,650 drums and other, smaller containers, all of which held or had held numerous toxic, flammable, corrosive, irritant, and explosive materials. EPA also conducted site security and maintenance activities and was responsible for the removal and disposal of the drums and their contents and more than 160 tons of accompanying contaminated soil and debris to off-site waste facilities. Prior to and during the removal process, EPA sampled and analyzed on-site groundwater and the contaminated materials which had been removed from the site.

Investigation disclosed that the dump site was owned by Richard Mottolo, who had bought the property in 1964. In 1973 Mottolo purchased Service, a company whose primary business was cleaning drains, septic tanks, and grease traps. In 1975 and thereafter, although neither Mottolo nor Service was licensed to haul hazardous waste, Service contracted to dispose of chemical wastes generated by Quinn and Lewis. This waste was dumped at the Mottolo site. Mottolo ran Service as a sole proprietorship until 1980, at which time he incorporated the company.

Litigation commenced in this court on September 8, 1983, when the United States brought suit pursuant to CERCLA to recover EPA's response costs from Mottolo, Service, Quinn, Lewis, and Sutera. On February 3, 1984, the State of New Hampshire filed a separate action against Mottolo, Quinn, Lewis, and Sutera (but not Service) under CERCLA as well as state law. The two cases were consolidated in January 1985. In its consolidation order, the Court allowed consolidation only of the CERCLA claims and ruled that state claims would be addressed in the ordinary course of the Court's docket. See Status/Pretrial Order of January 15, 1985, at 3; United States v. Mottolo, 605 F.Supp. 898, 912 (D.N.H.1985).

Respectively, on May 8 and 17, 1985, the United States and New Hampshire moved to amend their complaints to include requests for declaratory judgments, therein seeking to hold defendants liable for future response costs incurred at the Mottolo site. On July 18, 1985, the Court granted the motions; however, in seeking to avoid what it characterized as "claim-splitting" and successive actions for additional damages, the Court conditioned its grant on reopening of discovery and postponement of trial "until such time as plaintiffs present a final and specific ad damnum covering all CERCLA damages which plaintiffs seek to recover from defendants...." United States v. Mottolo, 107 F.R.D. 267, 268 (D.N.H.1985).

On May 1, 1986, the United States moved for partial summary judgment against some of the defendants. On July 9, 1986, New Hampshire joined in the motion, incorporating by reference the motion of the

695 F. Supp. 620
United States. See Rule 10(c), Fed.R.Civ.P. On May 5, 1987, again stressing a desire to avoid duplicative litigation, the Court denied the motions on the basis that summary judgment had not been sought as to all defendants. On September 30, 1987, plaintiffs responded by filing the instant joint motion for partial summary judgment against all defendants. All defendants having filed their objections, the motion is ripe for resolution


Plaintiffs' motion for summary judgment raises three categories of issues: first, the appropriateness of the use of summary judgment to resolve some of the issues in this litigation prior to trial; second, the extent of defendants' liability; and third, plaintiffs' damages. Discussion of these issues follows.

The Appropriateness of Summary Judgment

Defendants argue that summary judgment may not be granted on fewer than all of the issues or against fewer than all of the defendants in light of previous orders rejecting claim splitting. Defendants also argue that summary judgment is precluded because witness credibility is at issue regarding material facts.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. In resolving whether summary judgment is appropriate, a dispute of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and "material" if it "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party has the burden to establish the lack of a genuine, material, factual issue, Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.1986) (quoting Pignons S.A. de Mecanique v. Polaroid Corp., 657 F.2d 482, 486 (1st Cir.1981)), and the Court must view the record in the light most favorable to the nonmovant, according the nonmovant all beneficial inferences discernable from the evidence, Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st...

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