Advance Circuits, Inc. v. Carriere Properties

Nos. 84-3316; -4591 (Minn. Dist. Ct. February 18, 1987)

In a contribution action under the Minnesota Environmental Response and Liability Act, the court holds the owners and operators of two contaminated recycling facilities liable for 70 percent of the costs incurred by 13 generators in cleaning up the sites. The court finds that defendants' actions were the substantial cause of the release, and that defendants were completely responsible for the care of the wastes, were uncooperative with the government, and were aware of the hazardous nature of the substances accepted for treatment. The court also finds that plaintiff generators contributed to the release only by relying on defendants' representations and cooperated fully with the government. The court concludes that plaintiffs have incurred response costs, that these costs have been authorized by the state, that defendants are responsible parties liable for plaintiffs' response costs, and that plaintiffs have a right of apportionment and contribution from defendants. Based on the equitable factors, the court holds defendants liable for 70 percent of the cleanup costs and plaintiffs liable for 30 percent.

[The Minnesota Environmental Response and Liability Act is described at 15 ELR 10109.]

Counsel for Plaintiffs
Robert E. Cattanach Jr.
Oppenheimer, Wolff & Donnelly
1700 First Bk. Bldg., St. Paul MN 55101
(612) 223-2500

Counsel for Defendants
Brian W. Carriere, pro se
765 Front Ave., St. Paul MN 55103

[17 ELR 20959]

Odland, J.:

Findings of Fact, Conclusions of Law and Order

The above-entitled matter came on for hearing before the undersigned, one of the Judges of the above-named Court, most recently on October 27, 1986. Lisa R. Tiegel, Esq., appeared on behalf of the State of Minnesota and its Pollution Control Agency. Robert E. Cattanach, Esq., appeared on behalf of the plaintiffs. Brian W. Carriere appeared pro se on behalf of the defendants. The purpose of the hearing was to establish the existence, or not, of disputed issues of fact and the basis for entering final judgment in this action as set forth below.

The Court, based upon all of the files, records and proceedings herein, makes the following:

Findings of Fact

The Court adopts its earlier Findings of Fact set forth in its September 18, 1984, Order, except to the extent that they are in any way inconsistent with the Findings, Conclusions and Order set forth herein. (Relevant portions of this earlier Order will be referred to in this Order as "Findings," "Conclusions of Law" or "Order" as appropriate.)

II.

Defendants are owners and operators of the Ecolotech facilities located at 765, 769 and 775 Front Avenue, St. Paul, Minnesota, and 2619-28th Avenue South, Minneapolis, Minnesota (Findings II).

III.

Defendants operated on those facilities a recycling operation, and accepted for treatment from the plaintiff generators various materials which the Court ruled hazardous within the meaning of Minn. Stat. § 115B.02, subds. 8 and 9 (Conclusion of Law V).

IV.

While at the outset of this litigation the defendants took the position that no cleanup or response action at the site was necessary, [17 ELR 20960] during the course of the litigation it became clear to all concerned, and defendants conceded, that some sort of cleanup should be conducted. After substantial negotiations and discussions preliminary to and during the initial trial of this matter failed to produce an agreement by the defendants to take some action at the site, the Court ordered that the sites be cleaned up under a structure which would allow defendants to take maximum advantage of whatever economic value there might be in the materials in question, and minimize the costs of cleanup (Conclusions of Law VIII, IX).

When defendants failed to comply with the provisions of this Court's Order allowing them to submit a plan for the sale of materials and transportation of such materials (Order II), this Court ordered that the plaintiff generators commence the cleanup (Order of October 5, 1984).

VI.

Plaintiffs, after much delay, and added expense in attempting to accommodate defendants' proposals for recycled material that ultimately was determined not to be recyclable by all vendors, ultimately successfully implemented a comprehensive cleanup plan for the two facilities.

VII.

The costs of this cleanup action were significantly greater than originally estimated by any of the parties or their consultants, due principally to the fact that the material to be disposed of contained contaminants which substantially increased the expected cost of its treatment and disposal, as well as the fact that the materials were in different condition, and there were considerably more materials at the site, than had been represented by the defendants.

VIII.

Subsequent to the cleanup, further tests at the St. Paul site disclosed the presence of additional contamination in the soil and possibly the groundwater, necessitating even further testing, excavation of contaminated soil and at a minimum long-term monitoring.

IX.

The additional contamination discovered in St. Paul appears to be the result of intentional dumping or negligent spilling of materials by the defendants.

Pursuant to Minn. Stat. § 115B.08, subd. 1, the Court makes the following Findings:

(a) Defendants' actions and inactions were the substantial and material contributing cause of the release and threat of release of hazardous substances at the site.

(b) Defendants were principally responsible for all hazardous materials remaining at the Ecolotech facility at the time of cleanup; almost all of the materials were the byproducts of defendants' activities.

(d) Defendants were completely and uniquely responsible for the care exercised in the treatment and storage of materials at the two sites in question.

(e) Defendants were generally uncooperative with the responsible authorities in addressing the problem created by defendants.

(f) Defendant Brian Carriere represented himself as well-trained and expert in the area of recycling and metallurgy and implicitly aware of the hazardous nature of the substances which he was accepting and treating at the Ecolotech facilities.

XI.

The Court also makes the following Findings with regard to the plaintiff generators pursuant to Minn. Stat. § 115B.08, subd. 1:

(a) The generators contributed to the release or threatened release only in the sense that they relied upon defendants' representations concerning proper handling of the materials that the generators delivered to the defendants for recycling.

(b) Collectively, the generators entrusted to the defendants the materials ultimately found at the Ecolotech facilities.

(c) The generators have cooperated fully and completely with all government officials to prevent any harm to the public health and the environment.

XII.

In comparing the statutory criteria for the respective parties, the Court finds that the plaintiff generators, as responsible parties under the meaning of the statute, bear some portion of responsibility for the cleanup of this site because they were the originators of the materials. The Court also believes, however, that the substantial costs of the cleanup, as well as the time and expense of litigation for all concerned, were primarily the result of defendants' conduct in the care, storage and treatment of the materials.

XIII.

Plaintiff generators have submitted Affidavits to support the expenditure of costs in excess of $1 million to date. Affidavits submitted by the MPCA state that additional expenses will also be necessary for continued monitoring.

XV.

Plaintiff generators have incurred costs to date of $1,068,971.66 in the cleanup of this facility.

Conclusions of Law

Plaintiff generators have incurred response costs within the meaning of Minn. Stat. § 115B.04, and such response costs have been authorized by the State of Minnesota and its Pollution Control Agency within the meaning of Minn. Stat. § 115B.17, subd. 12.

II.

Defendants are responsible parties liable for the costs incurred by plaintiff generators pursuant to Minn. Stat. § 115B.04.

III.

Plaintiff generators also have a right of apportionment and contribution from defendants pursuant to Minn. Stat. § 115B.08. In examining the relative positions of the parties in the context of the criteria enumerated in that section, the Court finds that an appropriate distribution of liability would be 70 percent to defendants, and 30 percent to plaintiff generators.

IT IS HEREBY ORDERED:

1. That all earlier Orders of this Court are hereby modified in accordance with this Order.

2. That the respective allocation for costs incurred in connection with the response actions at the Ecolotech facilities shall be borne in the percentages set forth above, with the following provisions:

(a) For all costs incurred by plaintiff generators in excess of One Million Dollars, plaintiffs shall submit to the Court appropriate Affidavits and backup documentation substantiating such claimed expenses, with copies provided simultaneously to the defendants, along with a proposed Order for additional entry of judgment.

(b) Plaintiff generators shall be given immediate possession of all monies in escrow for the sale of the gold, in partial satisfaction of and to be credited against defendants' share of the cleanup in this action as allocated above.

3. That plaintiff generators are entitled to Judgment against defendants in the amount of $748,280.16.

4. That the Court will retain jurisdiction in this matter pending a final resolution of the remedial and response activities at the site and continued monitoring and access.

LET JUDGMENT BE ENTERED ACCORDINGLY.