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United States v. Mottolo

Citation: 19 ELR 20442
No. Nos. 83-547-D, 84-90-D, 695 F. Supp. 615/(D.N.H., 08/29/1988) Partial summary judgment on liability granted

The court holds that the owner and operator of a hazardous waste site and a generator are jointly and severally liable under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs incurred by the United States and New Hampshire and for natural resource damages. The court initially holds that partial summary judgment is appropriate. Summary judgment may be used to adjudicate some, but not all, liability issues and the liability of some, but not all, defendants. Defendants' bare assertion that witness credibility is at issue regarding material facts does not preclude summary judgment. The court holds that CERCLA may be applied retroactively to response costs incurred prior to CERCLA's enactment or that resulted from acts that transpired before CERCLA's enactment.

The court holds that the site is a "facility" under CERCLA § 101(9), since hazardous substances were deposited there. Tanktrucks' discharge of hazardous chemicals at the site and the presence of numerous corroded and leaking containers constitute "releases" and "threatened releases" under CERCLA. Plaintiffs need not show off-site pollution to establish a release or threatened release. The court holds that the owner of the siteand of the sole proprietorship that operated the facility at the time hazardous materials were deposited there is liable under CERCLA § 107(a)(1) and (2). He is also liable under CERCLA § 107(a)(3) and (4), since he transported and arranged for the transportation of hazardous waste and personally chose the disposal site. The court holds that the sole proprietorship that the owner later incorporated in an attempt to escape personal liability is liable under CERCLA § 107(a)(2). Federal courts may disregard the corporate form if equity so demands and CERCLA places no importance on the corporate form. Even under the more rigorous alter ego doctrine, the corporation may not escape the liability incurred by the proprietorship, since there is a substantial identity of ownership, management, and operation. The court holds that a hazardous waste generator is liable under CERCLA § 107(a)(3), since plaintiffs have shown that it disposed of hazardous waste by giving it to a hauler, the hauler accepted the waste, and there is an identifying connection between the waste and the waste found at the site.

The court holds that the Environmental Protection Agency's (EPA's) allegedly negligent supervision of cleanup operations is not a valid third-party defense under CERCLA § 107(a)(3), since there were releases and threatened releases before the government became involved and thus the government was not the sole cause of the releases. The court holds that the generator defendant's alleged ignorance of where its wastes were being taken is irrelevant to generator liability. The court holds that equitable defenses are available to CERCLA liability. The court rejects defendants' estoppel defense alleging that they allowed EPA to enter the site based on EPA's assertion that it would not seek response costs. Defendants' consent did not constitute detrimental reliance, since they had no power to bar EPA from the site. The court holds that defendants may not assert that EPA's alleged representations constitute a waiver and release of claims, since the representations were made prior to CERCLA's enactment and thus EPA could not have made an intentional relinquishment of its rights. The court holds that the government is not barred from recovering response costs where it did not offer defendants an opportunity to participate in the cleanup process. The court holds that defendants are jointly and severally liable under CERCLA because their conduct combined to violate the Act and the harm is indivisible. Joint and several liability may be imposed on defendants found liable under CERCLA even though the liability of all defendants has not been resolved.

The court holds that the issue of whether some of the response costs incurred by the government are inconsistent with the national contingency plan (NCP) is a triable issue of fact that affects the amount, not the fact, of defendants' liability. The court holds that plaintiffs may recover prejudgment interest and all response costs not inconsistent with the NCP. Recoverable response costs include investigative, administrative, and litigation costs, including attorneys fees.

[Previous decisions in this litigation are published at 14 ELR 20497 and 15 ELR 20444.]

Counsel for Plaintiff
Susan L. Howard, Ass't U.S. Attorney
439 Federal Bldg., 55 Pleasant St., P.O. Box 480, Concord NH 03302-0480
(603) 225-1552

Elizabeth Yu
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2778

Peter G. Beeson
Environmental Protection Division, Attorney General's Office
208 State House Annex, Concord NH 03301
(603) 271-3655

Counsel for Defendants
Lynn D. Morse
Engel & Morse
P.O. Box 278, Exeter NH 03833
(603) 778-8535

Rodney L. Stark
Stark & Peltonen
121 Middle St., Manchester NH 03101
(603) 627-4111