ELR Citation: ELR 21315
No(s). 90-0484 P (D.R.I. Apr 6, 1995)

The court holds that a jet-engine manufacturing company is liable as a generator under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for costs the U.S. Environmental Protection Agency (EPA) incurred cleaning up the Davis Liquid Waste site in Smithfield, Rhode Island. The court first holds that the site owner's testimony supports the government's contention that the company's waste was present at the site. The owner testified that he saw the company's labels on drums of waste at the site and that agents of the company admitted that the drums belonged to the company during a 1985 inspection. Further, the owner's description of the waste is closely similar to uncontradicted evidence about the nature and appearance of the company's hazardous waxy waste and solvent. The court holds that inconsistencies in the owner's testimony are not sufficient to sustain a finding that he lied, made up his evidence, or perjured himself. The court next holds that another witness' testimony that during the cleanup he saw a rotted drum with the company's label on it is not sufficient in and of itself to establish that the company's waste was at the site; however, in conjunction with other evidence, this witness' testimony corroborates the government's version of the facts. The court next holds that testimony regarding whether identification numbers found on some of the drums indicate that the company owned them persuades the court that certainly one, and very likely two, of the drums originated at the company. The court thus holds that the company's waste was present at the site. The court next holds that the waste that the company deposited at the site was hazardous. The company's agents described the waste as looking and smelling very much like the company's hazardous waste stream, and their analysis of two samples of the waste showed solvent levels comparable to those in the company's solvent contaminated waste. The court next holds that for purposes of CERCLA §113(g)(2)(A)" s requirement that a cost recovery action be brought within three years of the completion of the removal action, the removal action did not end until EPA issued the record of decision (ROD) for the site, which was precisely three years before the United States filed suit. To decide that a removal action is over when the physical removal is over, but before the process of monitoring, assessing, and evaluating the damage is complete, violates the clear sense of the statutory language. Courts have overwhelmingly concluded that the removal process does not end until completion of the remedial investigation and feasibility study and the issuance of the ROD. The court rejects the company's argument that because its drums allegedly were not leaking, the statute of limitations should have commenced running when EPA completed removing those drums. The company has failed to indicate any authority for its belief that Congress intended a statute of limitations that dates from a single removal action for a site not to apply when wastes are contained in discrete, intact drums. The court thus holds that the case was timely filed.

[Prior decisions in this litigation are published at 23 ELR 20082 and 24 ELR 20091.

Counsel for Plaintiff
Cynthia Huber
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Tom Angelone
Hodosh, Spinella & Angelone
Shakespeare Hall
128 Dorrance St., Ste. 450, Providence RI 02901
(401) 274-0200