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Idaho v. Bunker Hill Co.

ELR Citation: 16 ELR 20879
Nos. Nos. 83-3161 et al., 635 F. Supp. 665/24 ERC 1524/(D. Idaho, 05/22/1986) Jurisdiction, CERCLA claims

In a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) action, the court holds that it has personal jurisdiction over the nonresident corporate parent of the operator of a hazardous waste site in Idaho, the parent corporation is an owner or operator within the meaning of CERCLA, natural resource damages occurring after CERCLA's enactment are actionable even if they are the result of preenactment releases, and the Idaho Environmental Protection Act does not preclude common-law nuisance actions. The court first holds that it has personal jurisdiction over the nonresident parent of the corporation that owned and operated the hazardous waste site in question, since the parent corporation overwhelmingly controlled its Idaho subsidiary. The court also holds that collateral estoppel bars the parent corporation's denial of personal jurisdiction since the court had found personal jurisdiction over the parent in an earlier personal injury action involving the same polluting activities. The court holds that CERCLA §107(a)(2) does not limit past owner liability to situations where the facility has been abandoned. Although the definition of owner or operator in §101(20)(A) may suggest otherwise, the plain language of §107(a)(2) includes those who were owners and operators at the time of the hazardous substance disposal. The court holds that the defendant parent corporation is an owner or operator for purposes of CERCLA liability. The court adopts the Eighth Circuit's definition in Apex Oil Co. v. United States, 6 ELR 20628, of owner or operator, a case involving oil discharges under the Federal Water Pollution Control Act. Defendant in this case was intimately familiar with hazardous waste disposal and releases at the Idaho facility, and, due to the extent of its control over its subsidiary, had the capacity and authority to control the damage. The court next holds that mining wastes are hazardous wastes under CERCLA §101(14). The court rejects defendants' argument that §101(14)(C) excludes mining wastes since their regulation has been suspended under the Solid Waste Disposal Act, since the mining wastes in question contain wastes listed in sections other than §101(14)(C). Moreover, courts that have considered the question and the Environmental Protection Agency have concluded that mining wastes are covered under CERCLA. The court holds that the state may seek recovery under CERCLA for hazardous substance releases not covered by defendants' federal permits, but it must resort to state common law to recover for damages resulting from permitted releases. The court holds that CERCLA §107(f) bars recovery for damages to natural resources where the release as well as the damage occurred prior to CERCLA's enactment, but recovery is not barred, even if release predated CERCLA, if the resulting natural resources damages occurred after CERCLA's passage. The court goes on to hold that the appropriate measure of damages to natural resources is the lesser of the difference in value before and after the damages and the cost of restoring the site to its original condition. The court holds that the defendant parent corporation is not liable for damages resulting from releases prior to May 1968, when it purchased defendant Bunker Hill Company. The court holds, however, that both the parent and its subsidiary Bunker Hill's successor-in-interest may be liable for damages after the facility was sold in 1982, although only for damages attributable to releases prior to the 1982 sale. The court declines to decide as a matter of law whether the defendants are jointly and severally liable since there are substantial questions of fact concerning the divisibility of damages and there are other potentially liable parties. The court rejects defendants' argument that plaintiff has failed to join indispensible parties, since plaintiff may select defendants under joint and several liability and defendants will only be liable for their portion of the damages if joint and several liability is not imposed. The court also rejects defendants' argument that, as a matter of law, there were no damages occurring between December 1979 and December 1983. Finally the court rules that the Idaho Environmental Protection and Health Act does not preempt common-law nuisance actions.

[A previous decision in this case appears at 16 ELR 20715.]

Counsel for Plaintiff
Jim Jones, Attorney General
Office of the Attorney General
Statehouse, Boise ID 83720
(208) 334-2400

Counsel for Defendants
William F. Boyd, Fred M. Gibler, Charles L.A. Cox
Evans, Keane, Koontz, Boyd & Ripley
111 Main St., P.O. Box 659, Kellog ID 83837
(208) 784-1105