US v. South Carolina Recycling and Disposal, Inc., Civ. A. No. 80-1274-6.

• Citation: 653 F. Supp. 984
• Decision Date: 14 August 1986
• Docket Number: Civ. A. No. 80-1274-6.
• Parties: UNITED STATES of America, Plaintiff, and South Carolina Department of Health and Environmental Control, Plaintiff-Intervenor, v. SOUTH CAROLINA RECYCLING AND DISPOSAL, INC.; Columbia Organic Chemical Company; Oscar Seidenberg; Harvey Hutchinson; Monsanto Company; Allied Corporation; Aquair Corporation; Eaton Corporation; and EM Industries, Inc., Defendants, v. G.D. SEARLE & CO., and Will Ross, Inc., Third-Party Defendants.
• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina

653 F. Supp. 984

UNITED STATES of America, Plaintiff, and South Carolina Department of Health and Environmental Control, Plaintiff-Intervenor, v. SOUTH CAROLINA RECYCLING AND DISPOSAL, INC.; Columbia Organic Chemical Company; Oscar Seidenberg; Harvey Hutchinson; Monsanto Company; Allied Corporation; Aquair Corporation; Eaton Corporation; and EM Industries, Inc., Defendants, v. G.D. SEARLE & CO., and Will Ross, Inc., Third-Party Defendants.

Civ. A. No. 80-1274-6.

United States District Court, D. South Carolina, Columbia Division.

Order February 23, 1984.

Findings of Facts August 28, 1984.

Order on Motion for Summary Judgment November 22, 1985.

Order of Dismissal December 19, 1985.

Order on Third-Party Claim December 23, 1985.

Final Order August 14, 1986.

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F. Henry Habicht, II, Angus Macbeth, Deputy Asst. Atty. Gen., Carol E. Dinkins, Asst. Atty. Gen., Land & Natural Resources Div., Dept. of Justice, Douglas I. Greenhaus, Office of Enforcement, U.S. Environmental Protection Agency, Mary G. Slocum, Asst. U.S. Atty., Quentin C. Pair, Scott C. Fulton, Attorney, Hazardous Waste Section, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., Craig Campbell, Attorney, Enforcement Div., Environmental Protection Agency, Atlanta, Ga., Robert Homiak, U.S. Environment Act. Agency, James J. Kohanek, Office of Hazardous Waste Protection Agency, Washington, D.C., for plaintiff.

Isadore S. Bernstein, Hammer & Bernstein, Columbia, S.C., for Columbia Organic Chemical Co. and Oscar Seidenberg.

Reece Williams, Columbia, S.C., for S.C. Recycling and Disposal, Inc.

Travis Medlock, Atty. Gen., Richard P. Wilson, Asst. Atty. Gen., Walton J. McLeod, III, General Counsel, Dennis N. Cannon, Jr., Staff Atty., Cola., S.C., for S.C. Dept. of Health and Environment Control.

Edward W. Warren, P.C., L. Mark Wine, David G. Norrell, Frank B. Cross, Kirkland & Ellis, Washington, D.C., for Chemical Manufacturers Assoc. (amicus curiae); David F. Zoll, Richard G. Stoll, Chemical Manufacturers Assoc., Washington, D.C., of counsel.

Claude M. Scarborough, Jr., Cola., S.C., for Monsanto Co. and E.M. Industries.

Hugh B. Campbell, Jr., Charlotte, N.C., for Aquair Corp.

Robert E. Stepp, Cola., S.C., and Robert W. Dibble, Robert T. Bockman, Martin B. Helfant, Morristown, N.J., for Allied Corp.

H. Simmons Tate, Jr. and Tom Gottsha, Cola., S.C., for G.D. Searle & Co. and Will Ross, Inc.

Phocion S. Park, Brent J. Gilhousen, Monsanto Co., St. Louis, Mo., for Monsanto Co.

Thomas J. Stephens, White Plains, N.Y., for E.M. Industries.

ORDER

SIMONS, District Judge.

INTRODUCTION

This action was instituted by plaintiff United States pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607, to recover costs of removing hazardous substances from the surface of the Bluff Road site, a hazardous waste site located near Columbia, South Carolina. Named as defendants in this action are four hazardous waste "generators", the two owners of the Bluff Road property, a lessee of at least a portion of the site, and the site operator.

Plaintiff United States has filed for partial summary judgment on the issue of each defendant's joint and several liability for costs incurred in responding to the hazardous conditions posed by the site. The generator defendants have likewise filed motions for summary judgment against plaintiff, as has Columbia Organic Chemical Company ("COCC"), a lessee of at least a portion of the site.¹

The Federal Rules of Civil Procedure provide, in pertinent part, that summary judgment

shall be rendered forthwith if in the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.

Rule 56(c). The Rules also allow that summary judgment "may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages." Id. While "any doubt as to the existence of a genuine issue of fact is to be resolved against the moving party," Wessinger v. Southern Ry. Co., Inc., 438 F.Supp. 1256, 1259 (D.S.C.1977), the function of Rule 56 is not to preserve purely speculative issues of fact for trial. Atlantic States Construction Co. v. Robert E. Lee & Co., 406 F.2d 827 (4th Cir.1969). "The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see if there is a genuine need for trial." Id. at 829. Furthermore, summary judgment is not to be denied merely because the pleadings create the appearance of a dispute. Watson v. Southern Ry. Co., 420 F.Supp. 483 (D.S.C.1975), aff'd, 542 F.2d 1170 (4th Cir.1976). Rather, "if in essence there is no real dispute as to the salient facts," the goal of the court is

to smoke out if there is any case, i.e., any genuine issue as to any material fact, and, if there is no case, to conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy and efficient summary disposition.

Bland v. Norfolk & Southern Ry. Co., 406 F.2d 863, 866 (4th Cir.1969).

Reviewing the record in a light most favorable to the parties opposing the various motions, this court concludes that there are no material issues of fact in dispute other than the nature of COCC's business activities and the terms of its lease of the Bluff Road site. Thus, based on the undisputed facts, the court determines that the summary judgment motions of the defendants should be denied. The court further concludes that summary judgment should be granted in favor of the plaintiff against all defendants except COCC on the issue of those defendants' joint and several liability under CERCLA for costs incurred by the government in cleaning up the surface of the Bluff Road site.

THE UNDISPUTED FACTS

The undisputed facts established in the record can be summarized as follows. In 1972, Max G. Gergel, President of COCC, negotiated a verbal lease of at least a part of the Bluff Road site, a four acre piece of property located along Bluff Road near Columbia, South Carolina, on behalf of COCC with the property owners, Oscar Seidenberg ("Seidenberg") and Harvey Hutchison ("Hutchison"). COCC purportedly planned to use its leasehold for storage of raw chemicals and materials used in its manufacturing processes. COCC continued to lease at least a part of the property from the owners until 1978.

In late 1973 or early 1974, several individuals associated with COCC — James Q.A. McClure, Max Gergel, and Henry Tischler — began storing hazardous wastes, including hazardous substances, at the Bluff Road site as part of a waste brokering and recycling operation. In 1976, the three individuals incorporated South Carolina Recycling and Disposal Inc. ("SCRDI") and thereafter continued hazardous waste operations at the site under auspices of the corporation. SCRDI occupied part of the site from the years 1976 to 1978, and it assumed the verbal lease in 1978.

During the course of operations at the site by SCRDI and its predecessors, an environmental hazard of staggering proportions developed. Some 7,200 fifty-five gallon drums of hazardous substances, including materials which are toxic, carcinogenic, mutagenic, explosive, and highly flammable, accumulated at the site. The drums were randomly and haphazardly stacked upon one another without regard to their source or the compatibility of the substances within. Many drums deteriorated to the point that their hazardous contents were leaking and oozing onto the ground and onto other drums. The exposure of these substances to the elements, as well as to other substances with which they comingled, caused a number of fires and explosions and generated noxious and toxic fumes.

Given the extremity of conditions at the site, the United States Environmental Protection Agency ("EPA") determined that the storage and disposal of hazardous substances there had resulted in releases and threatened releases of hazardous substances into the environment. EPA endeavored to remedy the hazardous conditions. An agreement was reached with twelve waste generators and one transporter associated with the site to perform 75% of the surface removal work at the site. The South Carolina Department of Health and Environmental Control ("DHEC") and several agencies of the federal government, also generators of some of the wastes at the Bluff Road site, have agreed as well to contribute funds to remedial activities at the site. Money from the Hazardous Substance Response Trust Fund established under CERCLA was used to finance the cleanup of the remaining 25% of the site's surface. Plaintiff seeks to recover costs associated with the second phase of the cleanup in this action.

The generator defendants — AquAir Corporation ("AquAir"), Allied Corporation ("Allied"), Monsanto Company ("Monsanto"), and EM Industries, Inc. ("EM") — are companies that arranged with SCRDI and its predecessors for treatment or disposal of hazardous substances. Drums belonging to each of these defendants were observed at the site during and before cleanup of the site. Moreover, hazardous substances of the same type found in each of these defendant's wastes were identified in samples taken at the site during cleanup operations.

DEFENDANTS' LIABILITY UNDER CERCLA § 107

In Section 107(a)(1)-(4) of CERCLA, 42 U.S.C. § 9607(a)(1)-(4), Congress established a liability classification scheme which identifies four classes of defendants and describes the connection to a given waste site necessary for each to be held liable for response costs resulting from the release or threat of release of hazardous substances at the site. Once the requisite nexus is established, each class is strictly liable² unless they can prove that,...