Violet v. Picillo, Civ. A. No. 83-0787 P.

• Decision Date: 01 August 1985
• Docket Number: Civ. A. No. 83-0787 P.
• Citation: 613 F. Supp. 1563
• Parties: Arlene VIOLET, In Her Capacity As Attorney General of the State of Rhode Island, Plaintiff, v. Warren V. PICILLO, Sr., et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

613 F. Supp. 1563

Arlene VIOLET, In Her Capacity As Attorney General of the State of Rhode Island, Plaintiff, v. Warren V. PICILLO, Sr., et al., Defendants.

Civ. A. No. 83-0787 P.

United States District Court, D. Rhode Island.

August 1, 1985.

Susan B. Squires, Office of Atty. Gen. of R.I., Providence, R.I., for plaintiff.

Leif Sigmond, pro se.

James H. Russell, Baker & Hostetler, Orlando, Fla., Richard Boren, Howard Lipsey, Providence, R.I., for Thiokil Corp. Christopher Little, Providence, R.I., for Nat'l Starch Corp.

C. Russell Bengtson, Richard T. Linn, co-counsel, Providence, R.I., William G. Ballaine, Siff & Newman, New York City, for United Sanitation, Inc., Daniel Capuano, A. Capuano Bros., Inc., Jack Capuano, Sanitary Landfill, Inc. and Anthony Capuano.

A. Lauriston Parks, James T. Murphy, Providence, R.I., for Advanced Environmental Technology Corp.

Barbara S. Cohen, Anthony Muri, Providence, R.I., for Monsanto Co.

Gregory L. Benik, Providence, R.I., for Olin Corp.

Dominick Presto, Presto & Barbire, Rutherford, N.J., for Scientific Control Processing & Scientific Environmental Control Systems.

John F. Bomster, David J. Oliveira, Providence, R.I., for Hydron Lab.

Deming S. Sherman, Providence, R.I., for Exxon Research & Engineering Co., Rohm & Haas Co. and American Cyanamid Co.

Harriet Sims Harvey, Englewood, N.J., for Mack Barnes.

Alden C. Harrington, Providence, R.I., for Warren Picillo, Sr.

Harold E. Krause, Providence, R.I., for Michael Musillo.

Harold Hestnes, Hale & Dorr, Boston, Mass., Benjamin B. White, III, Providence, R.I., for GAF.

John F. Dolan, Rice Dolan & Kershaw, Providence, R.I., for Rutgers University.

James Russell, Cleveland, Ohio, John Cuzzone, Jr., Providence, R.I., for Morton-Thiokol, Inc.

OPINION AND ORDER

PETTINE, Senior Judge.

This is an action brought by the Attorney General of the State of Rhode Island to recover costs incurred by the state in cleaning up large quantities of toxic waste alleged to have been illegally dumped at the Picillo pig farm in Coventry, Rhode Island, as well as to collect damages for the impairment of the state's natural resources alleged to have been caused by this waste disposal. The state seeks relief pursuant to the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., and the Clean Water Act ("CWA"), 33 U.S.C. § 1251, et seq. Named as defendants in this action are some thirty parties, including the owner-operators of the site; parties alleged to have transported, or arranged for the transport of, waste to the site; and parties alleged to have "generated" (that is, produced) waste found there.

Currently before the Court are the motions of four "generator" defendants for dismissal, pursuant to Fed.R.Civ.P. 12(b)(2), for lack of in personam jurisdiction. Defendants Advanced Environmental Technology Corporation ("AETC"), Exxon Research & Engineering Company ("ER & E"), Rutgers University ("Rutgers") and Hydron Laboratories ("Hydron") each disavow any knowledge of how waste allegedly generated by them came to be disposed at the Picillo site and each claim to lack any significant links to the state of Rhode Island independent of this litigation. They therefore argue that they are not amenable to the jurisdiction of this Court. For its part, the state argues that jurisdiction is proper for two reasons. First, the state urges that, in enacting CERCLA, Congress authorized nationwide service process for those sued under the statute's terms, and thereby obviated the need to employ the traditional test of local contacts. Alternatively, the state contends that the traditional test of contacts, even if applicable to actions brought under CERCLA, may be satisfied in this case.

On February 12, 1985, the Magistrate, to whom I had referred for recommendation to the Court the dismissal motion of defendant Rutgers, rejected the state's two asserted bases for jurisdiction and recommended that Rutgers' motion be granted. That recommendation has been objected to by the state and is here for my review.¹ Accordingly, I must now decide the two questions raised by all four defendants: whether CERCLA authorizes nationwide service of process upon them and, if it does not, whether each defendant may, consistent with the strictures of the due process clause, be made to defend this litigation in this forum.

I. FACTUAL BACKGROUND

In 1977, state environmental authorities learned that a hazardous waste disposal site was maintained at the Picillo pig farm. As a result of a dramatic explosion there in September of that year, the state discovered what one judge, in related litigation conducted in the courts of Rhode Island, has called a "chemical nightmare." Wood v. Picillo, 443 A.2d 1244, 1246 (R.I.1982) ("Picillo I"). In Picillo I, the Rhode Island Supreme Court affirmed a finding that the owner-operators of the site had created a public and private nuisance under state law. That state court action also named AETC, Rutgers, E, R & E, and Hydron as defendants and is still pending as to the latter three.² The state Supreme Court's decision in Picillo I may be consulted for further general background on the site. Principally relevant for purposes of the present motion are the jurisdictional facts as to each defendant.

The record from which these jurisdictional facts must be gleaned consists of the Complaint, affidavits filed by defendants Rutgers and E, R & E, and materials, including interrogatory answers, from the record of the ongoing state litigation which have been submitted to this Court by defendant AETC and by the state. Viewing these materials in the light most favorable to the plaintiff, see, e.g., Amoco Oil v. Local 99, Intern. Broth. of Elec., Etc. 536 F.Supp. 1203, 1209-10 (D.R.I.1982), whose burden it is to make at least a prima facie showing of jurisdiction, see, e.g., North American Video Corp. v. Leon, 480 F.Supp. 213, 216 (D.Mass.1979); Nelson by Carson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir.1983), cert. den., ___ U.S. ___, 104 S.Ct. 1277, 79 L.Ed.2d 682 (1984); United States v. Montreal Trust Co., 358 F.2d 239 (2d Cir.), cert. den. 384 U.S. 919, 86 S.Ct. 1366, 16 L.Ed.2d 440 (1966), I find, for purposes of deciding this motion, the following facts.

A. Defendant AETC

Defendant AETC is a New Jersey corporation, with its principal place of business in New Jersey. AETC is in the business of "brokering," for disposal, chemical waste products generated by its clients. AETC's brokering services include packaging waste products, and arranging for the transport, and ultimate disposal of, such products. During the years 1976-1978, most of the waste brokered by AETC was apparently disposed of at two principal sites: the Chemical Control Corporation of Elizabeth, New Jersey and the NEWCO (now "CECOS") Disposal Site in Niagara Falls, New York. The record does not disclose whether these were the only sites to which AETC sent its clients' waste products for disposal. Beginning in 1977, a majority of AETC's waste went to the New York site, to which AETC began shipping waste in late 1976 or early 1977.

In 1976, AETC began handling chemical waste disposal for defendant Rutgers and defendant E, R & E. In approximately the fall of 1981, AETC was contacted by state environmental authorities regarding some of the waste materials found at the Picillo site. AETC was apparently contacted after numerous firms whose wastes were found at the site stated that AETC's brokering services had been used. AETC employees subsequently travelled to the site to confer with state officials about the materials in question.

AETC has taken the position that it is without knowledge as to how waste handled by it for E, R & E and Rutgers came to be disposed of at the Picillo site, and that it is aware of no other occasions on which its waste has been sent there. AETC's interrogatory answers, however, make no representation as to where, in fact, AETC believes that wastes generated by E, R & E and Rutgers were sent during the relevant time period. Nor does AETC appear to have any documentation regarding the ultimate disposition of E, R & E's or Rutgers' waste products. The record thus indicates that while AETC does not know how wastes handled by it for these parties arrived in Rhode Island, it does not purport to know exactly where these wastes were, in fact, sent.³

AETC maintains no office, telephone or bank account in Rhode Island, nor has it any employees or agents in the state. It solicits no business here, although in 1981 it acted as a subcontractor for a Connecticut corporation in connection with the packaging of laboratory chemicals for a Providence, Rhode Island firm. Other than that link, and any link to this state furnished by the subject litigation, AETC apparently has and had no other affiliation with Rhode Island.

B. Defendant E, R & E

Defendant E, R & E is a Delaware corporation with its principal place of business in New Jersey, and is a wholly owned subsidiary of the Exxon Corporation.⁴ E, R & E is engaged primarily in research and engineering activities relating to various aspects of petroleum production and refining.

In October of 1981, E, R & E personnel were contacted by a state environmental official regarding E, R & E laboratory wastes found at the Picillo site. E, R & E takes the position that it lacks direct knowledge as to how any of its waste products may have arrived at the site. During the relevant time period, E, R & E used the services of AETC, whom it denominates an "independent contractor," to dispose of its wastes. In connection with E, R & E's waste, AETC's role was to pack containers of waste in absorbent packaging, and to remove the packaged waste by truck from E, R & E's Linden, New Jersey facility. E, R & E makes no representation whatsoever as to where it believed its waste was destined for disposal, nor does it claim to have any documentation as to where, and by...