United States v. Medley

No. 7-86-252-3 (D.S.C. November 4, 1986)

On a motion for partial summary judgment on the issue of strict, joint, and several liability under § 107(a) of the comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the court holds that the owners of the Medley farm site in South Carolina, who accepted and disposed by commingling in unlined lagoons and storage areas hazardous wastes from numerous manufacturers, are jointly and severally liable to the United States for its past and future response costs. The court first holds that the federal government satisfied its prima facie burden under § 107(a) by showing that the Medley Farm site is a "facility" from which there has been a "release" of a "hazardous substance" which has caused the government to incur response "costs," and that the Medleys are "persons who presently own" or "owned or operated" the site at the time of the disposal, as those terms are defined in CERCLA. The court also holds that the mixing of wastes and storage in deteriorating and leaking 55- gallon drums constituted a release into the air and soil, as well as a threat of a future release of hazardous wastes. The court further holds that consistency or inconsistency with the National Contingency Plan (NCP) is not an element of whether the government has incurred response costs for the purposes of a motion for summary judgment. Consistency with the NCP relates only to the recoverability of various cost items, which the court holds is to be addressed during later proceedings. The court next rules that liability under CERCLA is strict, and where two or more persons have contributed to a single indivisible harm, liability is joint and several. The court then holds that the mixing of wastes in unlined lagoons, the use of unloading procedures that rupture storage drums, and the indiscriminate commingling of wastes constitutes a single, indivisible environmental harm that cannot be rationally apportioned among waste generators, site owners, and site operators, thereby rendering the owners jointly and severally liable.

[Related opinions appear at 17 ELR 20299 [July 1, 1986] [July 6, 1986].]

Counsel for Plaintiff
James D. McCoy, Ass't U.S. Attorney
P.O. Box 10067, Greenville SC 29603
(803) 232-5646

Counsel for Defendants
Wade Weatherford Jr.
P.O. Box 41, Gaffney SC 29340
(803) 498-1500

[17 ELR 20297]

Anderson, J.:

Order Granting Plaintiff's Motion For Partial Summary Judgment of Liability Against Defendants Ralph C. Medley and Clyde Medley Under CERCLA Section 107

Introduction

This matter comes before the Court on plaintiff United States of America's Motion for Partial Summary Judgment against the defendants Ralph C. Medley and Clyde Medley, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the issue of strict, joint and several liability under Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a), for all costs incurred to date and to be incurred in the future by plaintiff in responding to conditions at the Medley Farm site in Cherokee County, South Carolina.

As grounds for this motion, plaintiff asserts that there are no genuine, material issues of fact concerning the liability of the defendants Ralph C. Medley and Clyde Medley for response costs incurred by plaintiff pursuant to CERCLA Sections 104 and 107 and that plaintiff is entitled to a judgment of their liability as a matter of law.

The Court having considered the parties' supporting memoranda and attachments or exhibits thereto, having determined that the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact on the issue of defendants Ralph C. Medley and Clyde Medley's strict, joint and several liability under CERCLA Section 107 for response costs incurred to date and to be incurred in the future by plaintiff in responding to conditions at the Medley Farm site and having concluded that plaintiff is entitled to partial summary judgment on the liability of said defendants as a matter of law, the Court finds that plaintiff's motion should be granted.

Defendants' Liability Under CERCLA Section 107

Section 104(a)(1) of CERCLA authorizes the United States to remove hazardous substances or take appropriate response actions whenever any hazardous substance is released or there is a substantial threat of such release into the environment.

CERCLA Section 107(a), 42 U.S.C. § 9607(a), enumerates and identifies those categories of persons liable for costs incurred by the United States under CERCLA Section 104, 42 U.S.C. § 9604 in responding to actual or threatened releases of hazardous substances from a facility into the environment, and provides:

(a) Notwithstanding any other provision or rule of law and subject only to the defenses set forth in subsection (b) of this section —

(1) the owner and operator of a vessel (otherwise subject to the jurisdiction of the United States) or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for —

(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; and

(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.

Liability under Section 107(a) is subject only to the very limited defenses provided in Section 107(b), that the release or threatened release of hazardous substances was caused solely by an act of God, and act of war or certain acts or omissions of third-parties other than those with a direct or indirect contractual relationship with the defendant. 42 U.S.C. § 9607(b)(3).

Defendants Ralph C. Medley and Clyde Medley have raised no Section 107(b) defenses to liability in their answer to the plaintiff's complaint. Furthermore, the Court finds as matter of law that a substantial contractual relationship existed between the generator defendants and the Medley defendants as owners or operators of the Medley Farm site which would preclude the defendants' use of the "sole cause" third-party defense provided in Section 107(b)(3).

Section 107(a)(2) specifically imposes liability upon "any person who at the time of disposal of any hazardous substance owned [17 ELR 20298] or operated any facility at which hazardous substances were disposed of" and from which there has been a release or threatened release of hazardous substances which causes the incurrence of response costs. Section 101(29) defines "disposal" in accordance with Section 1004 of the Solid Waste Disposal Act, 42 U.S.C. § 6903, as "the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment . . . ." Section 101(9) defines "facility" as "(A) any building . . . or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located . . . ." Section 101(22) defines "release" as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment . . . ."

In order for plaintiff United States to meet its prima facie case under Section 107(a) of CERCLA against these defendants, the following must be established:

1. The Medley Farm site is a "facility";

2. There has been a "release" or "threatened release" of a "hazardous substance" at the Medley Farm site;

3. The government must have incurred "costs" in response to the releases or threatened releases; and

4. Ralph C. Medley and Clyde Medley are persons who presently own the facility or owned or operated the facility at the time when a hazardous substance was disposed of (Section 107(a)(1) and (a)(2)).

Applying the plain language of CERCLA to the undisputed or uncontested facts before the Court it is clear that the Medley Farm site is a facility from which there has been a release or threatened release of a hazardous substance which has caused the incurrence of response costs by the United States.

Defendant Ralph C. Medley has admitted that he is the present owner of the Medley Farm site and was the owner at the time that defendants National Starch and Chemical Corporation, Milliken & Company, Unisphere Corporation, and others stored or disposed of waste in deteriorated drums and unlined lagoons at the site. Further, the Court finds that Defendant Clyde Medley exercised control or authority over waste disposal activities at the Medley Farm site and actively participated in the management and day-to-day operation of the facility at the time that Milliken & Company and others disposed of hazardous substances there. Individuals who have control or authority over the activities of a facility from which a hazardous substance has been released or where there is a substantial threat of release or who participate in the management of such a facility are liable for response costs incurred by the United States. United States v. Carolawn, 21 Envt. Rep. Cas. (BNA) 2124 [14 ELR 20696] (D.S.C. 1984).

During EPA's June, 1983 inspections of the Medley Farm site, analysis of composite water and sediment samples taken from the soil and surface water ponds at the site revealed the presence of aniline oil, methylene chloride, benzene, phenol, toluene and vinyl chloride, all of which are hazardous substances as defined in Section 101(14) of CERCLA, 42 U.S.C. § 9601(14). In addition, analysis of ambient air inside the drum storage air by EPA using an Organic Vapor Analyzer, detected volatile organics at 1,000 parts per million (PPM) as compared to 3.1 ppm off-site. The emitting or release of volatile organics into the ambient air and the storage of hazardous substances in deteriorating or leaking drums and unlined lagoons at the Medley Farm site clearly constituted a "release" or "substantial threat" of release of hazardous substances into the environment. The defendants Ralph C. Medley and Clyde Medley have admitted and the Court finds that the United States has incurred costs for actions taken in response to the release or threatened release of hazardous substances from the Medley Farm site. The defendants, however, deny that the costs were incurred consistent with the National Contingency Plan ("NCP"). The Court has concluded that consistency or inconsistency with the NCP is not a necessary element of the United States' motion for partial summary judgment on liability under Section 107(a) of CERCLA and relates only to the recoverability of various cost items which will be addressed in later proceedings in this case. See, United States v. Wade, 577 F. Supp. 1326, 1336 [14 ELR 20096] (E.D. Pa. 1983); State of New York v. General Electric Co., 592 F. Supp. 291 [14 ELR 20719] (N.D.N.Y. 1984).

Strict, Joint and Several Liability of Defendants Ralph C. Medley and Clyde Medley

Having determined that defendants Ralph C. Medley and Clyde Medley are liable for response costs under Section 107(a) of CERCLA the extent of their liability must now be determined.

Section 107(a) of CERCLA states without qualification that parties "shall be liable" for response costs. Section 101(32), of CERCLA, 42 U.S.C. § 9601(32) defines liability under CERCLA to be "the standard of liability which obtains under Section 311 of the Federal Water Pollution Control Act." Courts have uniformly held that Section 311 of the Federal Water Pollution Control Act imposes strict liability. See, e.g., United States v. Bear Marine Services, 509 F. Supp. 710 [11 ELR 20659] (E.D. La. 1980); rem'd on other grounds, 696 F.2d 1117 (5th Cir. 1983); United States v. Tex Tow Inc., 589 F.2d 1310 [9 ELR 20006] (7th Cir. 1978); United States v. Marathon Pipe Line Co., 589 F.2d 1305 [9 ELR 20004] (7th Cir. 1978); United States v. Hollywood Marine, Inc., 625 F.2d 524 [10 ELR 20718] (5th Cir. 1980), cert. denied, 451 U.S. 994 [11 ELR 20679] (1981). This Court concludes that incorporation by CERCLA in Section 101(32) of the standard of liability set forth in Section 311 of the Clean Water Act requires that strict liability be the standard of liability in actions under Section 107 of CERCLA. See, e.g., United States v. Argent Corp., 21 Env't Rep. Cas. (BNA) 1356, 1357 [14 ELR 20497] (D.N.M. May 4, 1984); United States v. Conservation Chemical Co., 589 F. Supp. 59, 62 [14 ELR 20207] (W.D. Mo. 1984); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 805 [13 ELR 20986] (S.D. Ohio 1983); United States v. South Carolina Recycling and Disposal, Inc., ("SCRDI") 20 Env't Rep. Cas. (BNA) 1753, 1756 [14 ELR 20272] (D.S.C. Feb. 23, 1984); New York v. Shore Realty Corp., 759 F.2d 1032 [15 ELR 20358] (2d Cir. 1985); United States v. Price, 577 F. Supp. 1103, 1133 [13 ELR 20843] (D.N.J. 1983).

The Courts which have addressed the issue have concluded that liability imposed by CERCLA Section 107(a) is joint and several as well as strict in cases where two or more persons have contributed to a single indivisible harm. United States v. Wade, 577 F. Supp. 1326 [14 ELR 20096] (E.D. Pa. 1983); United States v. A&F Materials, Inc., 578 F. Supp. 1249 [14 ELR 20105] (S.D. Ill. 1984); United States v. SCRDI, 20 Env't Rep. Cas. (BNA) 1758, 1759; Conservation Chemical Co., supra, 589 F. Supp. at 63; Chem-Dyne, supra, 572 F. Supp. at 808-10; United States v. Northeastern Pharmaceutical and Chemical Co., ("NEPACCO"), 579 F. Supp. 823, 845 [14 ELR 20212] (W.D. Mo. 1984), app. pend., No. 84-1837-WM (8th Cir.).

This Court concludes that, based on undisputed facts, the harm at the Medley Farm site was indivisible. Hazardous substances and other waste materials were indiscriminately mixed together and commingled in the soil and surface waters. Many of the drums disposed of or stored at the Medley Farm site leaked and were in a deteriorated condition and some of the 55-gallon drums were, at the time of disposal, rolled off the trucks, without the use of ramps, causing the drums to rupture, thereby spilling their contents on to the ground or surface. In addition, the contents of an unknown quantity of drums disposed of at the site were emptied into and commingled with other wastes in the unlined lagoons or holding ponds constructed on-site by defendant Ralph Medley. The mixing of various hazardous substances in the lagoons is indivisible and the environmental harm presented by the Medley Farm site cannot be rationally or reasonably apportioned among waste generators, site owners and site operators in this case. Consequently, the harm suffered in this case was indivisible and defendants, Ralph C. Medley and Clyde Medley are jointly and severally liable for all costs incurred and to be incurred in the future by the United States in addressing the harm.

Conclusion

In summary, the Court finds that defendants Ralph C. Medley and Clyde Medley are each within one of the classes of persons identified in Section 107(a)(1)-(4) of CERCLA as liable for all response costs incurred to date and to be incurred in the future by the United States in responding to conditions at the Medley Farm site and further finds that none of the defenses enumerated in Section 107(b)(3) are available to these defendants. Because the harm at the Medley Farm site was indivisible, the liability of defendants Ralph C. Medley and Clyde Medley is joint and several. Therefore, this Court, grants plaintiff's motion for partial summary judgment on the issue of [17 ELR 20299] Ralph C. Medley and Clyde Medley's strict, joint and several liability under Section 107(a) of CERCLA for all costs, not inconsistent with the National Contingency Plan, incurred by the United States in its response actions at the Medley Farm site. The amount of recovery to which plaintiff is entitled will be resolved in subsequent proceedings.

AND IT IS SO ORDERED.