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Acme Printing Ink Co. v. Menard, Inc.

ELR Citation: 25 ELR 20784
Nos. No. 89-C-834, 870 F. Supp. 1465/40 ERC 1169/(E.D. Wis., 12/05/1994) Summary judgment motions granted in part & denied in part

The court holds that the current owner of a former landfill site whose excavation caused barrels of hazardous waste to rupture is precluded from asserting the innocent landowner affirmative defense to rebut a prima facie case of response cost liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that Resource Conservation and Recovery Act (RCRA) §7002(a)(1)(A) does not apply, because the current owner is not currently operating, nor has it operated, a hazardous waste facility at the site. The court also holds that the owner cannot, therefore, be liable for violating Wisconsin's EPA-approved state hazardous waste management plan, because the site has never been subject to the plan's regulations. The state plan applies only to facilities that are "intended" to be used for disposal, treatment, or storage of hazardous waste, yet the current owner has never used the site for disposal. Moreover, RCRA and the state plan are primarily prospective regulatory regimes. Addressing plaintiff's claim that the current owner is liable under RCRA §6972(a)(1)(B)'s imminent and substantial endangerment provision, the court next holds that there is a genuine dispute of fact as to whether the site poses an imminent and substantial danger. The court does not, however, reach the question of whether the other elements of an imminent and substantial endangerment claim are present.

The court finds that plaintiff has established a prima facie case of CERCLA liability against the current owner by setting forth that the landfill site is a facility, that the current owner is a potentially responsible party, that hazardous substances are present at the site and were released when the current owner's excavation of the site ruptured barrels containing hazardous waste, and that the release has caused plaintiff to incur response costs. The court holds that the current owner cannot invoke the innocent landowner defense. The current owner played some role in the release of the hazardous substances when it opened during excavation barrels containing hazardous substances, such that the undetermined party on whom its innocent landowner defense would rely was not the sole cause of the release. The court concludes, therefore, that there is no triable issue of fact as to whether the current owner is liable to plaintiff for the response costs it incurred at the site.

The court next addresses summary judgment motions in opposition to plaintiff's RCRA and CERCLA claims against 12 alleged defendant generators of hazardous waste that allegedly was ultimately deposited at the site in question. The court determines that the only issue before the court in addressing the RCRA claims will be whether a defendant generator has contributed to the handling, treatment, storage, or disposal of some solid or hazardous waste at the site. The court also determines that the only issue before the court in addressing the CERCLA claims will be whether there is evidence that a generator defendant's waste was shipped to the site and that hazardous substances similar to those contained in the defendant's waste remained present at the time of release. As to the first generator defendant, the court concludes that it could not be held liable for response costs under CERCLA absent any proof that its waste contained hazardous substances. Also, this defendant could not be held liable as an owner under CERCLA, because its long-term agreement providing a right to use the landfill for dumping its sold waste was an easement rather than a lease. Thus, this defendant was not an owner of the site. This defendant also could not be held liable as an operator under CERCLA since its obligation to level, grade, and backfill materials it dumped at the site did not support operator liability absent evidence that it played a role in the day-to-day operation and management of the site. Finally as to plaintiff's RCRA claim against this defendant, the court holds that the existence of a triable issue of fact about whether the defendant contributed to the handling of hazardous waste at the site by backfilling and leveling off of solid waste it dumped there precludes summary judgment for the defendant.

As to the second and third generator defendants, the court holds that circumstantial evidence that they had disposed of hazardous waste at the site is insufficient to impose liability under either CERCLA or RCRA, absent actual proof that any of the defendants' waste was ever actually disposed of there. Plaintiff's arguments amount to little more than speculation that is insufficient to survive summary judgment motions. As to the fourth generator defendant, the court grants its request to supplement the record with newly discovered evidence concerning the nature of waste that had been disposed of at the site. Such evidence provides sufficient cause for extending the time period for filing additional affidavits on claims concerning the generator's liability under CERCLA and RCRA. As to the fifth generator defendant, the court holds that evidence that the defendant generated hazardous waste similar to that found at the site, and that it used a waste collection service that dumped waste at the site, is insufficient to maintain a claim against the defendant for response costs liability under CERCLA and RCRA, especially in light of evidence that others had hauled away this defendant's waste to another site. As to the sixth generator defendant, the court holds that direct evidence that only the nonhazardous waste of this defendant had been disposed of at the site and that the defendant subcontracted other work to other companies precludes response cost liability under CERCLA, dispite circumstantial evidence that the defendant could not account for any other arrangements for disposal. Also, a genuine issue of material fact exists to preclude summary judgment for this defendant about whether it contributed to any imminent or substantial danger that might exist based on its disposal of its solid waste.

As to the seventh generator defendant, the court holds that circumstantial evidence that several partial loads of rubbish from unknown sources had been disposed of at the site, and that relatively common hazardous waste found at the site resembled wastes that the defendant might have dumped through a waste collection service that might have used the landfill, are insufficient to support the conclusion that the defendant's waste was actually dumped at the site for purposes of incurring response costs liability under CERCLA and RCRA. As to the eighth generator defendant, a bankrupt company, the court addresses claims against the president and major stockholder of a facility that dumpted hazardous waste at the site. The court holds that plaintiff's CERCLA and RCRA claims against this defendant did not accrue until the response costs were incurred, which did not occur until after the president had filed for personal bankruptcy. Therefore, any CERCLA and/or RCRA response costs liability of the president arose after the bankruptcy petition and was not thereby discharged. As to this defendant's major stockholder, who was merely an ordinary employee, the court holds that his limited authority as plant manager and regulatory recordkeeper are not sufficient to impose individual liability under CERCLA or RCRA for the defendant company's disposal of hazardous waste at the site, absent direct proof that the employee had an ownership interest in the company or personally arranged for disposal of hazardous waste. As to the ninth generator defendant, the court holds that circumstantial evidence that hazardous waste found at the site was consistent with waste this defendant generated, and that this defendant used a waste collection service that had dumped loads at the site, is insufficient to impose response cost liability against the defendants under CERCLA and RCRA, especially in light of evidence from the waste collection employee indicating that this defendant's waste was sent to another dump. The court holds, however, that genuine issues of material fact exist to preclude summary judgment for this defendant about whether the defendant's waste oil had contributed to another company's hazardous waste that had been disposed of at the site. As to the tenth generator defendant, the court holds that the defendant cannot be held liable under CERCLA for response costs at this site absent direct evidence to indicate that its potentially hazardous waste had been disposed of at the site. There had to be more evidence than that relatively common waste consisting of paint cans was found at the site. Moreover, there was affirmative evidence from this defendant's waste collection service that this defendant's waste had been disposed of elsewhere. The court holds, however, that genuine issues of material fact exist as to whether this defendant's solid waste contributed to any imminent or substantial danger that could have existed at the site for purposes of RCRA.

As to the eleventh generator defendant, the court holds that circumstantial evidence that hazardous waste found at the site was consistent with waste generated by this defendant, and that its waste collection service had improperly dumped occasional mixed loads of rubbish and solid waste at the site, were not sufficient to impose response cost liability under CERCLA and RCRA, especially in light of affirmative evidence from the waste collection service indicating that the defendant's rubbish had been dumped elsewhere. As to the twelth generator defendant, the court holds that soil and concrete contaminated with hazardous components of petroleum falls within the statutory exclusion of petroleum from types of hazardous wastes covered by CERCLA. Therefore, this defendant could not be held liable under CERCLA for response costs arising from the discovery of hazardous petroleum components found at the site, which was where this defendant dumped its soil and concrete waste. The court also holds that a genuine issue of material fact exists to preclude summary judgment for this defendant on whether its soil and concrete solid waste disposed of at the site contributed to any imminent and substantial danger for purposes of RCRA response cost liability.

Counsel for Plaintiff
William S. Roush Jr.
Davis & Kuelthau
111 E. Kilbourn Ave., Ste. 1400, Milwaukee WI 53202
(414) 276-0200

Counsel for Defendant
Robert W. Corey
Menard, Inc.
Legal Department
4777 Menard Dr., Eau Claire WI 54703
(715) 876-5911