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United States v. Bliss

ELR Citation: 18 ELR 20055
Nos. No. 84-200C(1), 667 F. Supp. 1298/26 ERC 1405/(E.D. Mo., 08/07/1987) Response cost liability

The court holds that defendants involved in the release of waste oil contaminated with dioxin and trichlorophenol (TCP) at six sites in Missouri 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. The court holds that the United States has established a prima facie case of liability under CERCLA §107(a). The sites where defendant Bliss sprayed or stored the waste oil, including four horse arenas, are facilities under CERCLA §101(9), since dioxin and TCP have been found at the sites. Bliss' spraying and storage of the waste oil constitutes a release under CERCLA §101(22). The United States has incurred over $1.5 million in response costs at the sites. The court holds that defendants fall within the class of liable parties in § 107(a). Defendant Northeastern Pharmaceutical and Chemical Company (NEPACCO) and two of its officers are liable under §107(a)(3) as parties who arranged for disposal of hazardous substances. The individual acts of the two corporate officers in arranging for disposal of the waste brings them within §107(a)(3)'s coverage. Defendant Independent Petrochemical Corporation is liable under §107(a)(3), since it arranged for Russell Martin Bliss to dispose of NEPACCO's waste. Russell Martin Bliss is liable under §107(a)(1), (2), and (4), since he released hazardous materials from his trucks at the six sites, owned and operated two sites at the time of the disposal, and transported the waste to the six sites. Jerry-Russell Bliss, Inc. is also liable under §107(a)(1), (2), and (4) as successor in interest to Bliss. The Missouri Supreme Court's holding, 16 ELR 20492, that Jerry-Russell Bliss, Inc. is the successor in liability to Bliss precludes relitigation of this issue.

The court holds that the complexity of the case is not a sufficient reason to deny summary judgment. The court holds that the United States has met the relaxed standard of causation required under CERCLA. The United States established a presumption of causation by showing that NEPACCO's wastes were placed in the tanks from which Bliss drained the waste that it sprayed at the horse arenas. Defendants have not asserted a third-party defense to overcome this presumption. The court holds that defendants have had more than enough time to conduct discovery and that investigations into other potential waste sources and the amount of waste at each site are not relevant to the issue of liability. The court rejects defendants' assertion that the court may not rely on Bliss' deposition statements because, as a convicted felon, his credibility must be evaluated at trial. Defendants have raised no doubts about Bliss' testimony that must be resolved through evaluation of live testimony. The court holds that the application of joint and several liability is appropriate since defendants have failed to show that the harm resulting from the release of wastes is divisible. The court dismisses without prejudice the United States' motion for a finding of liability under CERCLA §106(a) and Resource Conservation and Recovery Act §7003(a) upon a further finding of endangerment. The additional finding of endangerment under these provisions requires different and more complex evidence than a finding of liability and the government may decide not to proceed with this additional showing.

[Previous decisions in this case are published at 16 ELR 20368 and 17 ELR 21217.]

Counsel for Plaintiff
Jill Newman, Joseph Moore
Room 414, U.S. Court & Customhouse, 1114 Market St., St. Louis MO 63101
(314) 425-5280

Counsel for Defendants
John J. Cole
Armstrong, Teasdale, Dramer & Vaughn
611 Olive St., Suite 1900, St. Louis MO 63101
(314) 621-5070

F. William McCalpin, Richard A. Ahrens
Lewis & Rice
14th Fl., 611 Olive St., St. Louis MO 63101
(314) 444-7600