A Paper for the Spring 1995
Environmental Law Class of
The Department of Geography and Geology,
Western Kentucky University
Bowling Green Kentucky
By Chris Kozloski
April 1995
After hiring a local hydrologist to survey the area, it was found that the swallet that drained the lake did, indeed, drain under Bowling Green, flowing through State Trooper cave to blue hole #1 in the Lost River uvala, joining the Lost River and flowing under the city (Crawford p 2,5). The Lost River cave system was on the opposite side of the pond than the 3 suspect plants, which further increased suspicion on them as sources of the pollution. More importantly, however, the hydrologic report established through Dye tracing, that only Multi-Chem's facility, fell within the drainage basin of the spring that recharged Keith Pond. (Crawford p 2-3,5). Agrico was located down gradient of the pond in relation to the water table and was, therefore, incapable of being the pollution source because water does not flow uphill. (Westlaw, FN 2). Dye traces at FMC's property proved that the runoff from their facility flowed along a route that bypassed Keith Pond to resurge in State Trooper cave downstream. (Crawford p 2, 5). Dye from 3 places on the Multi-Chem property reached Keith pond in 47 hours and 15 minutes after injection. (Crawford p 2).
Other investigations of the sites turned up more information. Upon analysis of water samples taken at each facility, of the twenty-one toxic chemical s found in Keith pond, Agrico had none of them in the soil water at their facility, Agrico had four, and Multi-Chem had eight. (Revell Aff., Paras., 3,4,7). Searches for leaks at the plants turned up contamination at the Multi-Chem facility about its storage tanks, loading docks and the pipes that fed the storage tanks. FMC's paint reclamation tank was tested with Dye to determine if leaks were occurring anywhere in the system. No dye appeared in the ground water so the system was determined to be sound. (Crawford p 3-5).
Finally, Danny L Anderson, a former Multi-Chem employee, gave an affidavit stating that he saw frequent spillage of chemicals on the ground by employees as they worked at the plant. Anderson was also in charge of digging up the old storage tanks at the site and stated that he had seen several quarter inch rust holes in the tanks as he extracted them. (Anderson Aff., paras. 2, 4, 5). When all the above was taken into account the EPA sued Multi-Chem Inc. and its operator Wendell Capps, under the CERCLA regulations, seeking compensation for the costs of cleanup at the Keith pond super fund site.
The case was filed in the US District Court and presided over by Judge Siler. The prosecution first asked for summary judgment. Criteria for Summary Judgment were as follows:
In order to gain compensation under CERCLA, the government had to prove that the companies plant was a "covered person" under the CERCLA guidelines (42 U.S.C. s9607(a)). This meant in order to be liable, Multi-Chem had to meet the definition of a "facility" (42 U.S.C. s9601(9)), that Mr. Capps had to be the "Owner or operator" of the facility. (42 U.S.C. s9607(a)) They also had to prove that a "release" occurred at the facility of the chemicals in the pond (42 U.S.C. s9607(a)(4))and that the release caused the government to incur costs(42 U.S.C. s9607(a)(4)) consistent with the national contingency plan (Artesian Water Co. v. Government of New Castle County, 659 F. Supp. 1269 [18 ELR 20785] (D. Del. 1987), Aff'd, 851 F 2d 643 [18 ELR 21012).
According to the CERCLA guidelines, a facility is "Any site or area where a "hazardous substance" (42 U.S.C. s9601(14)40 C.F.R. part 261 and appendices) has been deposited, stored, disposed of, placed or otherwise come to be located"(42 U.S.C. s9607(a)). As a chemical repackaging company, Multi-Chem sold paint thinners and solvents, storing and mixing the different chemicals necessary for their products. Therefore Multi-Chem meets the criteria as a facility and could be found liable. An Owner or Operator, according to CERCLA is "any person owning or operating an inshore facility" (42 U.S.C. s9601(20)(a)). In addition, the owning stockholder who manages the corporation can be held liable as the "Owner Operator". (State of New York v. Shore Reality Corp., 759 F. 2d 1032 [15 ELR 20 358](2d Cir. 1985)) After a review of records, Mr. Capps, who was the sole shareholder of Multi-Chem, was found to meet these criteria and could be found liable
The final and most complicated step involved was the proof that Multi-Chem was guilty of having a release. A release is defined by CERCLA as "any spilling, leaking, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment of a hazardous substance." (42 U.S.C. s9601(22))The government made its case based on the following facts:
The statement that Multi-Chem. did everything in its power to avoid the spills was invalidated by the simple fact of its release. CERCLA imposes strict liability upon the covered persons if a release occurs and the government incurs costs in cleanups (United States vs. Monsanto Co., 858 F 2d 160 [19 ELR 20085](4th Cir. 985))
In response to defense "The spill was the result of a third party", the court ruled that there was too much evidence of spillage at the site, especially in the soil by the loading docks, storage tanks, and piping , to conclude that the pollution was from a third party source. (Straud Aff., para.14, 15, 19, Revel Aff., paras. 3, 4, 7) In addition, the statement that there was never a spill was given by the operator of the plant, who by nature if his duties did not continuously supervise the employees as they worked. (Capps Aff.) Therefore, his testimony that there was never a leak was invalid, further eroding the argument of a third party cause. Subsequently, since the operation on the plant could not be proven to be totally spill free, the act of god argument was also invalid. The defense that the Government stepped in and cleaned up the site before Multi-Chem had a chance to clean it themselves was invalidated by CERCLA's guidelines allowing the government to step in immediately with certain types of spills (42 U.S.C. s107 (a)(4)(A)).
The defense that Agrico and FMC were responsible for the spills was repudiated by the scientific evidence presented in the Hydrologic investigation of Dr. Crawford and the site inspections by the EPA. Agrico was vindicated due to its position down gradient of Keith Pond, and by the fact it did not use the chemicals present in the pond. FMC did have high levels of four of the twenty-one pollutants found in Keith pond, but was proven to have a drainage route for its runoff that was hydrologically separate from the spring that fed Keith Pond. Therefore, neither Agrico nor FMC could have been the source of the pollution (Crawford).
The argument that Multi-Chem's was located down slope of the Keith pond and therefore could not be responsible for its pollution because water does not flow up hill was repudiated again by the testimony of Dr. Crawford through the conclusive evidence of the dye traces from Multi-Chem's facility to the spring at Keith pond. (Crawford Aff. p 2-3, 5)
The argument against the witnesses credibility due to the threats was found by the court to be unfounded. However they note that at no time did the defense say that the statement was untrue, (Westlaw) nor would it matter if it was as the evidence corroborating the witnesses allegations of spills and leaks is quite strong and could stand on its own independently. (Westlaw) The testimony of the witness against the integrity of the storage tanks and the evidence of leakage at the site takes into question the accuracy of the pressure test and visual inspection of the underground storage tanks when they were removed from the facility, an examination that is the basis of the defenses argument that the tank did not leak. The evidence of the leak from the EPA investigation of the site overwhelmingly indicated the storage tank leaked (Straud Aff., para.14, 15, 19). Furthermore, even if the integrity of the tank was proven, there is enough evidence of other pollution at the site, that the source if not the tank, was on the site (Straud Aff., para.14, 15, 19). Therefore the argument that the pollution was not from out site because our tank didn't leak was found insufficient.
The argument that the dye test on Multi-Chem property was preformed during a heavy rain which would have washed Agrico and FMC's wastes into the ground was invalidated in light of the evidence that the two facilities were hydrologically unrelated to Keith Pond (Crawford p 3-4, 5). The place the dye was injected on the Multi-Chem site was 100 feet away from the loading dock was invalidated due to the fact that the water from the contaminated storage tanks alone would have been enough to cause the spills. (Westlaw)
When all the facts and testimony were weighed, the court held that Multi-Chem and its operator Wendell Capps, were jointly and severally liable for the release that contaminated Keith Pond. Therefore, the defendants were responsible for reimbursing the government the cost of the cleanup at Keith Pond during March and June 1983. (Westlaw)
Cropper, Carol, M., Pond Reflects Warren's Dumping Problem, "The Courier Journal, Section A1, April 10, 1983.
Westlaw Document, United States Vs. Multi-Chem. Inc. (No. 84-0159-BG(CS) W.D. Ky., Aug. 1,1989.), 20 Environmental Law Reporter, 20053.
Zolvinski, Steve, EPA sues over costs of cleanup, Park City Daily News, Section A1, Aug. 1 1984.