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Vermont v. Staco, Inc.

Citation: 18 ELR 20589
No. No. 86-190, 684 F. Supp. 822/27 ERC 1084/(D. Vt., 01/07/1988)

The court holds a thermometer manufacturer liable under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107 and Resource Conservation and Recovery Act (RCRA) § 7002 for mercury contamination and associated costs of cleanup. The court first holds that the action is not barred by the doctrine of res judicata. Although the state had previously sued many of the same defendants in state court for mercury pollution, that earlier action was based on mercury releases that were different in time, place, and effect, and the new suit invokes provisions of federal and state law that were not available for the earlier action. The court also refuses to disturb the automatic admission of facts dealing with mercury contamination through worker exposure, under Federal Rule of Civil Procedure 36. The state had served the requests for admission on the defendants but they did not answer during the allotted time, and have not shown any reason to alter Rule 36's automatic admission provisions.

The court next holds the defendants liable under CERCLA § 107. Among the defendants are facility owners and operators, and corporate executives who participated in the control and management of the corporations that owned and operated the facilities. The manufacturing site is a facility within the CERCLA § 101(9) definition, and mercury is a hazardous substance under CERCLA § 101(14). Mercury was released into the environment by being inadvertently carried outside on workers' bodies and clothes in minute quantities, and this mercury has since entered the public sewer systems, where it became part of the sewage sludge, and from there it can become part of the air or surface water. The state's testing and monitoring costs are recoverable response costs under CERCLA.

The court next holds defendants liable under RCRA § 7002. Each individual defendant was either personally involved in the corporate acts at issue or was a corporate officer or major stockholder, and three of the corporate defendants were owners or operators of the facility. The use of mercury during manufacturing, coupled with inadequate protective procedures employed, constituted "handling" within the meaning of RCRA. Equitable relief is justified based on the state's evidence of mercury samples taken at workers' homes and in their bodies, because mercury is toxic to humans. The court finds triable issues of fact, not suitable for decision on this motion for summary judgment, regarding whether the site released mercury into the environment during its post-closure cleaning.

Counsel for Plaintiff
Mark DiStefano, Denise Johnson, Ass't Attorneys General
Pavilion Office Bldg., 109 State St., Montpelier VT 05602
(802) 828-3171

Counsel for Defendants
Benjamin Pratt
Miller, Mannix & Pratt
One Broad St. Plaza, Glens Falls NY 12801
(518) 793-6611
John Weber
Hull, Webber & Reis
60 N. Main St., Rutland VT 05701
(802) 775-2361