ELR Citation: ELR 20706
No(s). CIV-86-1401-P (W.D. Okla. May 23, 1990)

The court holds that six of the seven remaining defendants are jointly and severally liable to the United States under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs at the Hardage hazardous waste site in Oklahoma. The court holds that the United States has established the site-specific elements for liability under CERCLA §§106 and 107. The court holds that its rulings in a previous decision are not binding under the doctrines of stare decisis, res judicata, and collateral estoppel, since that decision was resolved by dismissal. However, the United States has established that the site is a "facility," that there has been a "release" of hazardous substances, and that it has incurred response costs at the site. The United States has also established that there is an "imminent and substantial endangerment" at the site and has thus established the site-specific elements for injunctive relief under §106. The court next holds that six defendants fall within one of the categories for covered persons under CERCLA §107(a). The court holds that three companies are generators under CERCLA §107(a)(3). The court previously rejected arguments by these companies that it is unconstitutional to apply retroactive, strict, joint, and several liability to conduct that was expressly permitted in Oklahoma. The court holds that a company that disposed of waste oil sludge at the site is also liable as a generator under §107(a)(3). A letter written by a company official verifies that the sludge contains lead, which is listed as a hazardous substance under CERCLA. The court next holds that one company would be liable as a successor by merger if the court finds that the predecessor company is liable as a CERCLA generator. The court then holds that the predecessor company is liable as a CERCLA generator. The United States has established that this company sent some waste containing hazardous substances to the site. CERCLA §107(a)(3) contains no volume amount to establish liability. The court next denies the United States' motion for summary judgment against a company allegedly liable under §107(a)(4) as a transporter. The court rules that a transporter that selected the site is liable regardless of whether it is a common carrier. However, the court holds that a genuine issue of material fact exists concerning whether the alleged transporter selected the site for hazardous waste disposal. The court holds that another company is liable under CERCLA §§106 and 107(a)(3), since it has presented no evidence to support its third-party causation defense under CERCLA §107(b)(3) or its estoppel defense. Finally, the court holds that the six defendants are jointly and severally liable for the United States' past and future response costs. Defendants have not shown that the harm is divisible or that a reasonable basis exists for apportioning liability.

[Previous decisions in this litigation are published at 17 ELR 20242, 20738, 20741, 21082; 19 ELR 20254; 20 ELR 21307. Subsequent decisions are published at 21 ELR 20714, 20721.]

Counsel for Plaintiffs
John R. Barker, Anna Wolgast
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Steven Mullins
Office of the U.S. Attorney
4434 U.S. Courthouse, Oklahoma City OK 73102
(405) 231-5281

Counsel for Defendants
Jerome T. Wolf, Carl Helmstetter
Spencer, Fane, Britt & Browne
1400 Commerce Bank Bldg., 1000 Walnut St., Kansas City MO 64106-2140
(816) 474-8100

Jeffrey N. Martin
Hunton & Williams
2000 Pennsylvania Ave. NW, P.O. Box 19230, Washington DC 20036
(202) 955-1500

Steven K. McKinney
Monnet, Hayes, Bullis, Thompson & Edwards
First National Center West, Ste. 1719, Oklahoma City OK 73102
(405) 232-5481