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Dana Corp. v. American Standard, Inc.

ELR Citation: 25 ELR 21051
Nos. No. 3:92-CV-581RM, 866 F. Supp. 1481/40 ERC 1298/(N.D. Ind., 10/24/1994)

The court holds that the 9 out of 10 companies alleged to have generated hazardous substances that were allegedly disposed of at the Lakeland Disposal Service Superfund site near Claypool, Indiana, are entitled to summary judgment in a suit for cost recovery and contribution under the Comprehensive Environmental Response, Compensation, and Liability Act. In general, the court holds that for all defendants except one, the plaintiffs either failed to prove that the wastes disposed of at Lakeland contained hazardous substances, or failed to prove that the wastes that contained hazardous substances were disposed of at Lakeland rather than elsewhere. The court first denies motions by some of the plaintiffs to file supplemental briefings and materials. All parties had more than adequate opportunities to submit written argument before the hearing.

Addressing the summary judgment standard in CERCLA cases, the court first declines to apply a local rule that would allow it to deem admitted the facts as claimed by the defendants because the plaintiffs fail to file a "statement of genuine issues" with their answer brief. The court notes that the Seventh Circuit has upheld strict enforcement of the local rule. But whether to apply the rule is within the district court's discretion, and the court holds that applying the rule here would not further the ends of justice. The court next holds that the summary judgment standard is not heightened in CERCLA cases. The cases the plaintiffs cite do not support their contention that summary judgment motions in CERCLA cases are subject to especially stringent standards, and nothing in CERCLA suggests that the Federal Rules of Civil Procedure regarding summary judgment are subordinate to CERCLA.

The court next turns to the standard for establishing CERCLA liability, and holds that the plaintiffs must prove, by a preponderance of the evidence, that each defendants' waste was disposed of at the site and that hazardous substances similar to those found in their waste were present at the site at the time of release. The court holds that the plaintiffs have the burden of proof as to each element of their claims, and that the defendants, as the moving parties, need only establish that the plaintiffs have the burden of proof as to each element of their claims, and that the defendants, as the moving parties, need only establish that the plaintiffs have insufficient evidence to prove each element of their claims. The court next notes that in cases in which courts granted generator-defendants summary judgment, the courts required the plaintiffs to come forward with more than general allegations and conclusory affidavits. Rather, the courts required the plaintiffs to present evidence of disposal of a known hazardous substance at the site in question. In contrast, some of the cases in which courts did not grant the defendants summary judgment involved defendants that generated a predictable and relatively consistent hazardous substance waste stream, unlike here. Other cases the plaintiffs cite differ from the case at bar because they involved no dispute about whether the defendants disposed of their waste at the site at issue. And in still other cases the waste involved was radically different from the wastes allegedly involved in this case. The court holds that the plaintiffs need not present eyewitness testimony providing a complete chain of custody of hazardous waste from a defendant to Lakeland. Circumstantial evidence may be sufficient; however, the evidence must be "probative," meaning something beyond a witness effectively saying that anything is possible.

Turning to the defendants' objections to the plaintiffs' evidence, the court overrules their objection to one witness' deposition tesitmony. Determination of a witness' credibility and the weight of the evidence are not within the court's province when considering a summary judgment motion, and the defendants have offered no authority supporting their contention that the court cannot consider the witness' testimony because it allegedly was not completed. The court next holds inadmissible for lack of an essential evidentiary foundation an expert witness' opinion that each of the defendants contributed hazardous substances to Lakeland. He has no personal knowledge that any defendant disposedof a hazardous substance at Lakeland, and bases his assumption that they did on the discovery taken in the case, which, as the court discusses later, is insufficient to prove that each defendant disposed of a hazardous substance at Lakeland. The court holds that an expert may not assume a fact and then apply his expertise to the assumed fact to produce an opinion. The court next holds inadmissible any of this witness' testimony that draws exclusively on inferences from the record rather than expertise. The court next holds another expert witness' testimony approximating the volume of waste that each defendant contributed to Lakeland insufficiently reliable to be admissible. This witness' approximation technique is based on conjecture and broad assumptions made without a supporting factual basis.

The court next rules on each of the 10 defendants' motions for summary judgment in turn. Regarding the first defendant, the court holds that the plaintiffs have not presented any evidence that any of the defendant's roll-off wastes (wastes carried in large metal dumpsters) contained any hazardous substances that were disposed of at Lakeland. The undisputed testimony is that the roll-offs contained only wood and other large materials, but no cans, buckets, paint, liquids, or sludges. Nor have the plaintiffs come forward with material facts establishing a genuine issue for trial with respect to whether a load of aerosol spray paint cans that a Lakeland driver hauled was disposed of at Lakeland rather than elsewhere. Nor have they presented any evidence that even one compactor truck that was serviced at Lakeland contained any waste from this defendant. The court thus grants the defendant's motion for summary judgment.

Regarding the second defendant, the court holds that the plaintiffs have presented no evidence that any of the 20 loads of municipal solid waste that it disposed of at Lakeland actually contained hazardous substances. The court holds inadmissible an expert's affidavit stating that the defendant disposed of wastes containing hazardous substances, because the expert assumes that the waste contained certain common household items. The court holds that because this situation is so far from the predictable and consistent waste stream that has been held sufficient to survive summary judgment in other cases, the plaintiffs must show something more about the waste actually hauled to Lakeland. The court thus grants the defendant's motion for summary judgment.

Regarding the third defendant, the court holds that the plaintiffs have presented no evidence that the oil in certain slurry that the defendant disposed of at Lakeland was contaminated with a waste oil such that it would not fall within the CERCLA petroleum exclusion. Nor does the record support an inference that this slurry contained any other hazardous substances. The court holds that the plaintiffs have not established the relevance of test results of the defendant's slurry that were taken after a process change at the facility, because they have not established that the slurry from the time of disposal—four years earlier—would have obtained the same or similar results. The court next holds that the plaintiffs' efforts to distinguish unidentified material that the defendant pumped and disposed of at Lakeland from the slurry are too speculative to warrant a reasonable inference that the material was "venturi sludge" rather than slurry. No evidence suggests that the sludge would have been pumped, and two witnesses' descriptions of the colors of the unidentified material and the slurry are not necessarily inconsistent. The court next holds that the plaintiffs have not presented any admissible evidence that 30 to 40 "mostly empty" drums that the defendant disposed of at Lakeland contained hazardous substances. Mere disposal of drums is not sufficient to establish CERCLA liability. The court finds that the only sweepings disposed of at Lakeland were office floor sweepings, and that plaintiffs have presented no evidence from which a factfinder could find that the sweepings contained hazardous substances. The court next holds that even assuming that an occasional roll-off from the facility contained several specifically alleged hazardous substances, the plaintiffs cannot establish that those particular roll-offs more likely than not went to Lakeland rather than another area landfill. Because the defendant's waste was disposed of at Lakeland half the time at most, the court holds that this is not the consistent and predictable waste stream that supports an inference that it is more likely than not that such materials were disposed of at Lakeland. The court thus grants the defendant's motion for summary judgment.

Regarding the fourth defendant, the court holds that the fact that Lakeland's drivers hauled waste from this defendant does not prove that they disposed of the waste at Lakeland rather than another site. The only evidence that any of this defendant's waste ever went to Lakeland is that occasionally one driver would haul waste loads to Lakeland from the route along which the defendant was located. But no evidence suggests that these waste loads contained any of the defendant's waste, or that any of its waste that might have been present would actually have contained any hazardous substances. The court holds that the plaintiffs have neither presented direct evidence that any of the defendant's waste was disposed of at Lakeland nor shown a steady and predictable stream of hazardous waste taken to Lakeland. The chain of inferences necessary to find for the plaintiffs would be impermissible speculation based on conjecture. The court thus grants the defendant's motion for summary judgment.

Regarding the fifth defendant, the court holds that even if it assumes that the plaintiffs have presented evidence that the defendant generated some hazardous substances, the defendant must prevail because the plaintiffs have not produced any evidence to show that those hazardous substances were disposed of at Lakeland. At best, the evidence is sufficient to show that some of the defendant's waste went to Lakeland. The record does not support an inference that it is more likely than not that any of that waste contained hazardous substances. That Lakeland's drivers hauled the waste proves neither its character nor its disposal site. The court thus grants the defendant's motion for summary judgment.

Regarding the sixth defendant, the court holds that Lakeland's invoices and accounts-receivable records do not establish that the defendant disposed of hazardous substances at Lakeland. The court holds that the plaintiffs have not established that any of the defendant's waste that was disposed of at Lakeland contained any specific hazardous substances. The only waste of the defendant identified at the site consisted of merchandise and trash that are not hazardous substances under CERCLA §101(14). The court holds that the plaintiffs also have not demonstrated that the defendant generated or disposed of hazardous substances. Although a driver testified that he hauled waste containing paint cans, carburetor cleaner, and "bug bombs," paint cans are not hazardous substances per se and the plaintiffs have failed to identify any specific carburetor cleaner or "bug bombs" or any specific hazardous constituents in them. Further, the driver's testimony is inconsistent and conflicts with other evidence, and even if his testimony is credited, it does not rebut the defendant's explanation of how it segregated hazardous wastes from the trash that he hauled. And there is no evidence that the defendant's waste was taken to Lakeland rather than another facility. The court holds that the plaintiffs must provide evidence of actual disposal of waste containing an identified hazardous substance that is similar to a hazardous substance identified at Lakeland, and that they have not presented such evidence. The court thus grants the defendant's motion for summary judgment.

Regarding the seventh defendant, the court notes that the testimony to which the plaintiffs cite in an effort to create a genuine issue of material fact "seems to be missing from the court's copy of the record." None of the cited testimony supports the plaintiffs' contentions. The court holds that the evidence establishes that the defendant's waste was not disposed of at Lakeland. Lakeland closed shortly after the defendant became a customer and Lakeland's former owner testified that none of the defendant's waste was taken to Lakeland. The court holds that mere generation of waste containing hazardous substances is not sufficient to prove that these wastes were disposed of at a particular site, nor does the fact that Lakeland's drivers may have hauled the waste prove that it was disposed of at Lakeland. The court thus grants the defendant's motion for summary judgment.

Regarding the eighth defendant, the court holds that the roll-offs at its facility that Lakeland's drivers hauled would not have contained hazardous waste because the defendant segregated hazardous wastes from general plant trash. Also, Lakeland's records indicate that it hauled general trash rather than hazardous waste. The court holds that no reasonable fact finder could find by a preponderance of the evidence that the defendant's roll-off waste was disposed of at Lakeland. Lakeland was closed for most of the time its drivers hauled waste for the defendant, and the plaintiffs have not presented any evidence that the five or six roll-offs that Lakeland's drivers hauled were hauled during the six months in which Lakeland was accepting trash, let alone that those roll-offs actually were disposed of at Lakeland. The court holds that none of the deposition testimony supports plaintiffs' contention that the defendant's "mixed wastes" contained the specific hazardous substances alleged. And assuming that some of these substances were disposed of in the roll-off waste, the plaintiffs have not presented evidence from which a jury could find by a preponderance of the evidence that the roll-off or roll-offs into which these hazardous substances were disposed were hauled to Lakeland. Given the testimony showing that the defendant infrequently generated these substances, as well as the testimony that all or almost all of its roll-off waste went to other landfills, it is mere speculation that any of these substances were disposed of at Lakeland. The court next holds that the plaintiffs have not presented any evidence that any of the defendant's construction debris that Lakeland's drivers hauled contained hazardous substances. No evidence indicates that any sections of compressed air piping that might have been in such debris had been used or connected to a functioning air compressor, which might have contaminated them. An expert's opinion that the piping would have been contaminated by air compressor oils is thus inadmissible because it lacks an adequate factual basis. The court next holds that the plaintiffs have not shown that certain "chemicals" that may have been disposed of at Lakeland were CERCLA hazardous substances. And the plaintiffs have presented absolutely no evidence that any waste allegedly hauled from the defendant by another waste hauler was disposed of at Lakeland. The court thus grants the defendant's motion for summary judgment.

The court next turns to the ninth defendant. This defendant regularly placed its general plant trash, including additive packaging that an expert testified would have contained several hazardous substances, into Lakeland's containers. The court first holds that the evidence does not support the plaintiffs' allegation that Lakeland's drivers hauled the defendant's contaminated mold-making shavings. Rather, the record indicates that these savings were collected and taken to a salvage yard for resale. The court next holds that it cannot find anything in the cited materials that could establish that Lakeland's drivers hauled specific other contaminated wastes. Further, the plaintiffs have presented no evidence or any methodology to establish which particular roll-off loads and compactor truck wastes were hauled from the defendant and disposed of at Lakeland. Thus, the record cannot support a finding that even the majority of the defendant's waste was disposed of at the site. The court holds, however, that the record supports a reasonable inference that hazardous waste from the defendant was disposed of at Lakeland. The plaintiffs have presented evidence of a waste stream that consistently and predictably contained hazardous substances, and evidence that Lakeland's drivers took a significant portion of that waste stream to Lakeland. The court notes that how great a portion went to Lakeland is a question of fact, and thus denies the defendant's motion for summary judgment.

Regarding the 10th defendant, the court holds that the evidence could not allow a trier of fact to find by a preponderance that materials that the defendant did not otherwise recycle or reclaim were regularly or consistently placed in the containers that Lakeland's drivers regularly hauled. Moreover, the plaintiffs have offered no evidence to establish that Lakeland's drivers hauled any of the wastes containing allegedly hazardous substances to Lakeland. Although the defendant generated some hazardous substances, mere generation of hazardous substances and mere speculation that materials disposed of contained hazardous substances are not sufficient to establish CERCLA liability. The court holds that the evidence shows that the defendant's waste was equally if not more likely to be hauled to a landfill other than Lakeland. The evidence does not support an inference that any particular load of waste was more likely than not hauled to Lakeland; consequently, the evidence does not support an inference that any load of waste that may have contained hazardous substances was disposed of at Lakeland. The court holds that the evidence unequivocally refutes the testimony of a driver who claimed to have hauled drums of waste sludge in a roll-off to Lakeland. Lakeland did not provide the defendant with roll-off services when the driver worked for Lakeland, and at that time the defendant used only small waste containers that would have been emptied into a compactor, not a roll-off. The court holds that testimony that is implausible given the entire record is insufficient to create a genuine issue of material fact. The court holds that the plaintiffs have failed to establish by a preponderance of the evidence that any hazardous substance the defendant allegedly generated was disposed of at Lakeland. The court thus grants the defendant's motion for summary judgment.

Counsel for Plaintiffs
Daniel F. Stella
400 Renaissance Ctr., Detroit MI 48243
(313) 568-6530

Counsel for Defendants
Stephen J. Butler
Thompson, Hine & Flory
312 Walnut St., 14th Fl., Cincinnati OH 45202
(513) 352-6700