US v. Northernaire Plating Co.

• Decision Date: 30 April 1987
• Docket Number: No. G84-1113 CA7.,G84-1113 CA7.
• Citation: 670 F. Supp. 742
• Parties: UNITED STATES of America, Plaintiff, v. NORTHERNAIRE PLATING COMPANY, Willard S. Garwood and R.W. Meyer, Incorporated, Defendants. and R.W. MEYER, INCORPORATED, Defendant and Cross-Plaintiff, v. NORTHERNAIRE PLATING COMPANY and Willard S. Garwood, Cross-Defendants. and NORTHERNAIRE PLATING COMPANY and Willard S. Garwood, Defendants and Third-Party Plaintiffs, v. CITY OF CADILLAC, Third-Party Defendant.
• Court: U.S. District Court — Western District of Michigan

670 F. Supp. 742

UNITED STATES of America, Plaintiff, v. NORTHERNAIRE PLATING COMPANY, Willard S. Garwood and R.W. Meyer, Incorporated, Defendants. and R.W. MEYER, INCORPORATED, Defendant and Cross-Plaintiff, v. NORTHERNAIRE PLATING COMPANY and Willard S. Garwood, Cross-Defendants. and NORTHERNAIRE PLATING COMPANY and Willard S. Garwood, Defendants and Third-Party Plaintiffs, v. CITY OF CADILLAC, Third-Party Defendant.

No. G84-1113 CA7.

United States District Court, W.D. Michigan, S.D.

April 30, 1987.

Robert H. Oakley, Asst. Atty. Gen., Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., John A. Smietanka, U.S. Atty. (Joel M. Gross, Land and Natural Resources Div., Environmental Section, U.S. Dept. of Justice, Washington, D.C., of counsel), Babette J. Neuberger, Asst. Regional Counsel, U.S. E.P.A., Chicago, Ill., for the United States.

Smith Haughey, Rice & Roegge by L. Roland Roegge, John M. Kruis, Grand Rapids, Mich., for defendant R.W. Meyer, Inc.

Cholette, Perkins & Buchanan by Michael P. McCasey, Albert J. Engel, III, Grand Rapids, Mich., Susan E. Morrison, Siudara Rentrop Martin & Morrison, Bloomfield Hills, Mich., for Northernaire Plating and Willard S. Garwood.

Owen J. Cummings, Cummings McClorey David & Acho, P.C., Livonia, Mich., for third party defendants R.W. Meyer Inc. and City of Cadillac.

Robert P. Tremp, Traverse City, Mich., of counsel, for City of Cadillac.

OPINION ON MOTIONS

HILLMAN, Chief Judge.

Presently before this court are several matters upon which oral arguments were heard on Tuesday, March 24, 1987. The underlying action is a suit filed by the United States against Northernaire Plating Company ("Northernaire"), Willard S. Garwood ("Garwood") and R.W. Meyer, Inc. ("Meyer") which seeks to recover costs expended by the government in undertaking an "Immediate Removal Action." The action was taken to remove hazardous substances from a site where Northernaire had operated an electroplating business for a period of about ten years. This lawsuit has been brought pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter, "CERCLA"), 42 U.S.C. § 9601, et seq.

CITY OF CADILLAC'S MOTION FOR A CONTINUANCE

By this motion third-party defendant City of Cadillac, asks for a continuance of 120 days so that they may conduct discovery and/or procure opposing affidavits. This motion was filed on July 29, 1986. As more than 120 days have passed this motion is denied as moot.

AFFIDAVIT OF ROBERT BOWDEN

In support of its Motion for Partial Summary judgment (discussed below), the United States has submitted the affidavit of Robert Bowden. Bowden is presently employed as the acting chief of the Emergency Response Section in Chicago of the United States Environmental Protection Agency. At the time of the Immediate Removal Action taken at the Northernaire facility he was chief of the Spill Response Section of the Environmental Protection Agency, Region V. His responsibilities included supervising the Immediate Removal Action. Defendant Cadillac asks that the court strike the affidavit because it contains evidence that would be inadmissible at trial. Cadillac argues that much of the testimony offered by Bowden in his affidavit is hearsay as he relies on the reports of various EPA and Michigan Department of Natural Resource ("MDNR") personnel, and as such, most of his testimony is not within his personal knowledge. These arguments are without merit.

Federal Rule of Evidence 803(8) provides that certain public records and reports are not excludable under the hearsay rule unless "the source of information or other circumstances indicate lack of trustworthiness." The reports of the EPA and the MDNR clearly fall within the purview of this section. Furthermore, it is well established that the burden of showing the report's untrustworthiness is on the party opposing admission. See Baker v. Elcona Homes Corp., 588 F.2d 551 (6th Cir.1978), cert. denied, 441 U.S. 933, 99 S.Ct. 2054, 60 L.Ed.2d 661 (1979). Cadillac has failed to show the untrustworthiness of the reports. Therefore these reports would be admissible at trial. As such it is proper for Bowden to include evidence adduced from them in his affidavit. See Dyer v. MacDougall, 201 F.2d 265 (2d Cir.1952). See also, Pacific Service Stations Co. v. Mobil Oil Corp., 689 F.2d 1055 (T.E.C.A.1982). The City of Cadillac's Motion to Strike the Affidavit of Robert Bowden is denied.

GOVERNMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT FACTS

Northernaire owned and operated a metal electroplating business in Cadillac, Michigan. It began operations in Cadillac in 1972 under a ten-year lease on property owned by Meyer. These operations continued until mid-1981 when Northernaire's assets were sold to Toplocker Enterprises, Incorporated ("Toplocker"). From July of 1975 until the sale of the assets to Toplocker, Garwood was the president and sole shareholder of Northernaire. He personally oversaw and managed the day-to-day operations of the company. Defendants Northernaire Plating Company and Willard S. Garwood's Answer to Requests for Admissions, 4-7 (hereinafter, "Northernaire Admissions").

The site used by Northernaire is located one-half mile northwest of the center of the City of Cadillac, and one-fourth mile southwest of the city's well field. The area includes residences as well as commercial and industrial facilities. The topography of the area is dominated by sandy soils. Such soils offer little resistance to the flow of leaching chemicals in the groundwater. Affidavit of Robert Bowden, par. 5 (hereinafter, "Bowden, par. ___").

In the course of its business, Northernaire used and stored caustic plating baths containing cyanide and heavy metals such as zinc, hexavalent chromium, and cadium. Northernaire also used and stored chromic acid, a highly corrosive material which is reactive with caustic substances. Northernaire Admissions, 8-9. In May of 1981, the Michigan Department of Natural Resources (hereinafter, "MDNR") attempted to inspect the Northernaire site. They found the building locked and deserted. The MDNR informed the Environmental Protection Agency (hereinafter "EPA") that it found drums of plating waste outside of the building. It also reported that a child had received chemical burns as a result of playing around the drums.

On July 19, 1982, the MDNR took soil, sludge, drum and tank samples from various locations on the Northernaire site. The soil samples showed the presence of significant amounts of hazardous substances customarily used in electroplating such as cyanide, lead, cadium, nickel, chromium, copper, and zinc. Additionally, the MDNR reported observing a cloud of gas vapors. The building was again found locked and deserted. The MDNR again provided the EPA with a copy of its findings.

At the direction of Robert Bowden, who was, at that time, chief of the Spill Response Section of the EPA, Section V, the EPA and the MDNR inspected the Northernaire site on March 16-17, 1983. Their findings are set forth in a report prepared by Weston Sper (hereinafter, the "Sper Report") of the EPA, Region V, Technical Assistance Team. The inside of the building was in disarray, with drums and tanks of chemicals scattered about. Substantial amounts of cyanide and acid were among the substances discovered in the drums and tanks. The inspectors also located a sewer line on the north side of the building. They opened a catch basin found twenty feet north of the building and observed two pipes and discolored soil, indicating contamination. The sewer line was not sealed and the bottom of the catch basin opened to the ground. The EPA concluded that waste had been discharged into the catch basin where it seeped into the ground. As the ground became saturated, the material entered the second pipe which drained northeast into a sanitary sewer line. The sanitary sewer line discharged into the City of Cadillac Sewage Treatment Plant.

On June 28-29, 1983, the EPA informed the defendants that it intended to begin an "Immediate Removal Action" at the Northernaire site unless the defendants undertook a cleanup themselves. The defendants declined to do so.

From July 5 until August 3, 1983, the EPA conducted an Immediate Removal Action at the Northernaire site. Its activities included neutralization of caustic acids, bulking and shipment of liquid acids, neutralization of caustic and acid sludges, excavation and removal of the contaminated sewer line, and decontamination of the inside of the building. Included among the substances found at the Northernaire site were 5400 gallons of waste cyanide, 140 barrels of waste cyanide mix, 3450 gallons of acid and 5000 gallons of waste hypochlorite solution.

In its complaint, the United States alleges that it expended approximately $173,000 in connection with the Immediate Removal Action. On August 13, 1984, the United States made a demand for reimbursement from each of the defendants for the cost of the Immediate Removal Action. As each of the defendants failed to make the requested reimbursement, the United States filed a complaint against the defendants on September 25, 1984. Each of the defendants subsequently answered claiming no knowledge with respect to most of the allegations of the United States. In addition, Meyer filed a cross-complaint against Northernaire and Garwood filed a third-party complaint against the City of Cadillac.

THE STATUTORY SCHEME

The Comprehensive Environmental Response, Compensation and Liability Act (hereinafter, "CERCLA"), 42 U.S.C. § 9601, et seq., was enacted in December, 1980 "to provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of the inactive hazardous waste disposal sites." Pub.L. No. 96-510, purpose clause, 94 Stat. 2767 (1980). Congress, in response to a "strong public demand for action in light of Love Canal and other celebrated dump...