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Emhart Industries, Inc. v. New England Container Co., Inc.

United States District Court, D. Rhode Island

September 17, 2015

EMHART INDUSTRIES, INC., Plaintiff and Counterclaim Defendant,
v.
NEW ENGLAND CONTAINER COMPANY, INC; et al., Defendants and Counterclaim Plaintiffs. EMHART INDUSTRIES, INC., Plaintiff and Counterclaim Defendant,
v.
UNITED STATES DEPARTMENT OF THE AIR FORCE; et al., Defendants, Counterclaim Plaintiffs, and Third-Party Plaintiffs,
v.
BLACK & DECKER, INC.; et al., Third-Party Defendants.

PHASE I FINDINGS OF FACT AND CONCLUSIONS OF LAW

Table of Contents

Introduction .......................................................................................................................................... 3

I. Findings of Fact .................................................................................................................. 10

A. Site Description and Operational History ..................................................... 10

B. Overview of Industrial Practices ........................................................................ 16

1. Metro Atlantic’s Main-Building Operations .............................................. 16

a. Destination of Solid Waste .............................................................................. 17
b. Destination of Liquid Waste ............................................................................ 20

2. Metro Atlantic’s Trifluralin Operations ................................................... 26

3. NECC’s Drum-Reconditioning Operations ........................................................ 27

a. Drum Storage ................................................................................................................ 28
b. Drum-Reconditioning Processes ....................................................................... 31
i. Open-Head Drums ..................................................................................................... 31
ii. Closed-Head Drums ................................................................................................ 33
c. NECC’s Use of the WDA .......................................................................................... 37

C. Metro Atlantic’s HCP-Manufacturing Operations ......................................... 38

1. Storage of Crude Na 2, 4, 5-TCP ........................................................................... 39

2. Duration of Metro Atlantic’s HCP-Manufacturing Operations ........ 47

3. Waste Streams of HCP-Manufacturing Process ............................................ 52

a. Destination of Liquid Waste ............................................................................ 54
b. Destination of Solid Waste .............................................................................. 65
i. Lay-Witness Testimony ...................................................................................... 67
ii. Site Data ................................................................................................................... 71

A. HCX ............................................................................................................................. 72

1. Formation of HCX ............................................................................................. 72
2. Location of HCX ................................................................................................ 75
3. Colocation of HCX: Number of Nuchar Treatments ................... 79
4. Colocation with Two Nuchar Treatments ........................................... 91

B. 2, 3, 7, 8-TCDD in the WDA .............................................................................. 97

4. Soil in Vicinity of HCP Building Footprint .......................................... 112

a. Leaks and Spills .................................................................................................... 112
b. Presence of Other Substances ........................................................................ 116
c. NECC as the Source of 2, 3, 7, 8-TCDD in This Area .......................... 118
i. Dioxin-Congener Profile ................................................................................ 119
ii. DOD Drums ................................................................................................................. 129
d. Metro Atlantic is Responsible for 2, 3, 7, 8-TCDD in the Area of the HCP Plant ................................................................................................................ 142

5. Radiometric Dating of Pond Sediments ........................................................ 144

D. Fate & Transport ............................................................................................................ 149

E. Incurrence of Response Costs ................................................................................ 158

II. Conclusions of Law ........................................................................................................... 161

A. Emhart is Liable as a Past Operator under § 9607(a) ......................... 162

B. Emhart Has Not Proven that the Harm at the Site is Divisible ... 165

C. The DOD’s Rule 52(c) Motion .................................................................................. 178

III. Conclusion ........................................................................................................................... 185

Introduction

This environmental case arises from pollution discovered within the Centredale Manor Restoration Project Superfund Site (“Site”) located in North Providence, Rhode Island. Plaintiff and Counterclaim Defendant, Emhart Industries, Inc. (“Emhart”), initiated this case in May 2006, when it asserted cost recovery and contribution claims under §§ 107(a) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), see 42 U.S.C. §§ 9607(a), 9613(f), against New England Container Co. (“NECC”) and its insurers related to the pollution at the Site.[1] (C.A. No. 06-218, ECF No. 1.)[2] In January 2011, Emhart filed suit against the United States Department of the Air Force, the United States Department of the Navy, the United States Department of Defense, the secretaries of each of these departments, and the United States (collectively, “the DOD”), asserting CERCLA claims similar to those asserted in its case against NECC.[3] (Emhart’s Compl. ¶¶ 41-54, ECF No. 1.)

Since that time, the parties have filed a bevy of claims against one another: the DOD filed a CERCLA contribution counterclaim against Emhart (Counterclaim ¶¶ 42-44, ECF No. 32); the United States, on behalf of the Environmental Protection Agency (“the EPA” and, collectively with the DOD, “the Government”), filed a CERCLA cost recovery counterclaim against Emhart (Counterclaim ¶¶ 45-50, ECF No. 32); the Government filed a third-party complaint against Black & Decker, Inc. (“Black & Decker”), Emhart’s successor, asserting the same claims as those asserted in its counterclaim against Emhart (ECF No. 34); Black & Decker filed a third-party counterclaim against the DOD, asserting the same claims that are asserted by Emhart in its claims against the DOD (ECF No. 49);[4] the Government filed a crossclaim against NECC, asserting a CERCLA cost recovery claim and a CERCLA contribution claim on behalf of the DOD (ECF No. 67); NECC asserted CERCLA cost recovery and contribution crossclaims against the DOD (ECF No. 93); and the Government filed a claim against Emhart arising from its failure to comply with a CERCLA cleanup order (Gov’t’s 2d Am. Answer & Counterclaims ¶¶ 53-60, ECF No. 357; Gov’t’s 2d Am. 3d Party Compl. ¶¶ 65-72, ECF No. 358).

This Court set a phased-trial schedule for this case (8th Rev. Case Mgmt. Order 2, ECF No. 295), which was modified multiple times to accommodate the parties’ discovery needs.[5] The first phase was slated to address the liability of Emhart and NECC, including divisibility and the proper allocation of responsibility between Emhart and NECC in the event that both were found jointly and severally liable under CERCLA. (Id.) However, shortly before trial on the first phase commenced, NECC, which had “limited financial ability to pay for response costs incurred and to be incurred at the Site” (Consent Decree 2, ECF No. 375) settled with the Government for $8, 750, 000, the remainder of NECC’s insurance coverage (id. at 2, 5), and a consent decree reflecting this settlement was approved and entered by this Court during trial.[6] (Id.) Therefore, the focus of the first phase of this case was narrowed to the questions of whether Emhart is liable under CERCLA and, if so, whether the harm is divisible. In addition, because of the “somewhat unique” position that the DOD occupied in this case based on the connection between its alleged conduct and Emhart’s defenses (8th Rev. Case Mgmt. Order 2, ECF No. 295), this Court ordered the following:

All evidence pertaining to the [DOD’s] liability for contamination of the Site will be presented during the first phase (the liability phase) of the trial. However, during this phase, the evidence will be used solely to determine the liability of Emhart and NECC and whether this liability (if proven) is divisible among the two parties. The Court will not rule on the liability of the [DOD], or its amount in contribution, if any, until the third phase when it considers the contribution of the Third-Party Defendants.

(Id. at 3.)[7]

As is relevant to the first phase of this case, the Government asserts a CERCLA cost recovery claim (“Count Two”) and, on behalf of the DOD, a CERCLA contribution claim (“Count One”) against Emhart. (See Gov’t’s 2d Am. Answer & Counterclaims ¶¶ 42-52, ECF No. 357; Gov’t’s 2d Am. 3d Party Compl. ¶¶ 53-64, ECF No. 358.) Emhart principally denies any liability under CERCLA. (See Emhart’s Proposed Findings of Fact & Conclusions of Law (“Emhart’s Post-trial Br.”) 150-62, ECF No. 378.) As a fallback, Emhart claims that, even if it is liable under § 9607(a), it is not jointly and severally liable for all response costs because the environmental harm for which it may be responsible is divisible from that caused by NECC. (See id. at 162-77, ECF No. 378.) Finally, Emhart continues to assert a CERCLA contribution claim (“Count Two”) and a CERCLA cost recovery claim (“Count One”) (and an accompanying declaratory-judgment claim relating to those claims) against the DOD.[8] (See Emhart’s 2d Am. Compl. ¶¶ 42-55, 65-68, ECF No. 69; Black & Decker’s Answer & 1st Am. Counterclaim ¶¶ 30-50, ECF No. 367.)

The Court presided over a twenty-day bench trial beginning on May 18, 2015. After trial, the parties submitted post-trial briefs. (ECF Nos. 378-79.) After considering the evidence presented at trial and the pre- and post-trial memoranda submitted by the parties, the Court makes the following findings of fact and conclusions of law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.[9] This Court’s findings of fact have been grouped into the following categories: a brief background of the Site and the relevant operational history of the entities that occupied it; a general overview of the industrial practices of NECC and Metro Atlantic, Inc. (“Metro Atlantic”);[10] an in-depth discussion of Metro Atlantic’s manufacture of hexachlorophene (“HCP”); findings regarding principles of fate and transport of contaminants and their application to the Site; and a brief discussion of the costs incurred by the EPA, as well as future costs, for the remediation of the contamination on the Site. In broad strokes, this Court finds that Metro Atlantic released a hazardous substance - namely, 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin (“2, 3, 7, 8-TCDD”) - to the Site through its manufacture of HCP, that the 2, 3, 7, 8-TCDD was transported to downstream areas, and that the EPA incurred response costs as a result of the release of dioxin.[11] From these findings of fact, this Court ultimately concludes that Emhart is jointly and severally liable under § 107(a) of CERCLA and that Emhart has not proved by a preponderance of the evidence that there is a reasonable basis in this evidentiary record to apportion the harm. This Court also finds that Emhart’s claims against the DOD fail because Emhart did not prove by a preponderance of the evidence that the DOD drums purchased by NECC contained a hazardous substance. The tale follows.

I. Findings of Fact

A. Site Description and Operational History The Site, which is depicted in Appendix A, spans a three-mile stretch of the Woonasquatucket River, [12] and encompasses an area labeled the Source Area (“peninsula”), Allendale Pond, the Oxbow Area, [13] Lyman Mill Pond, Manton Pond, and Dyerville Pond. (Remedial Investigation Report (“RIR”) 1-2, U.S. Ex. 43.) The Site also contains residential areas along portions of the Woonasquatucket River and on either side of the Lyman Mill Dam. (Trial Tr., vol. I, 70:19-71:6, May 18, 2015, ECF No. 383.) The descriptively named Source Area, depicted in Appendix B, is a nine-acre peninsula in the northern portion of the Site that the EPA has identified as the source of the hazardous substances with which the Site is contaminated.[14] (Id. at 71:15-71:20, 72:4-72:10, 92:16-92:19.) The peninsula is bounded to the north by Smith Street, to the south by Allendale Pond, to the west by the Woonasquatucket River, and to the east by the “tailrace, ” a remnant of a narrow body of water used for water power by the mills that used to occupy the peninsula. (Id. at 72:13-73:1; RIR 1-2, U.S. Ex. 43.) There are currently two elderly housing facilities located on the peninsula: Brook Village and Centredale Manor. (Trial Tr., vol. I, 73:13-73:21, ECF No. 383.)

In 1996, dioxin was discovered in fish collected from the Woonasquatucket River. (Id. at 74:14-74:17; RIR 1-4, U.S. Ex. 43.) The EPA investigated the Site and, in 2000, listed it on the National Priorities List (“NPL”) of Superfund sites.[15](Trial Tr., vol. I, 74:23-75:1, ECF No. 383; RIR 1-4, U.S. Ex. 43.) Ultimately, the EPA determined that the Site was polluted by a variety of contaminants, including dioxins, volatile organic compounds (“VOCs”), polychlorinated biphenyls (“PCBs”), semi-volatile organic compounds (“SVOCs”), polycyclic aromatic hydrocarbons (“PAHs”), and various metals. (Trial Tr., vol. I, 83:24-84:9, 85:9-85:12, 95:16-95:19, ECF No. 383; RIR 7-2 to 7-3, U.S. Ex. 43.) The EPA considers dioxins - and 2, 3, 7, 8-TCDD, in particular - to be one of the primary contaminants of concern at the Site.[16] (Trial Tr., vol. I, 96:5-96:12, 105:12-105:20, ECF No. 383; RIR 1-6, 4-1, U.S. Ex. 43.) Although the EPA identified several entities as potentially responsible parties (“PRPs”) (Record of Decision (“ROD”), Part 2, at 7-9, U.S. Ex. 68), its investigation zeroed in on two primary culprits: Metro Atlantic and NECC (see RIR 7-1, U.S. Ex. 43).

Following a period dating back to the 1800s in which the peninsula was occupied by other entities, including textile mills, [17] Metro Atlantic began operating on the peninsula in approximately 1943.[18] (Id. at 1-3.) Metro Atlantic conducted its operations on the peninsula in several different buildings. (Trial Tr. vol. I, 126:19-126:25, ECF No. 383; U.S. Exs. 234-38.) Metro Atlantic’s main building was in the northeast corner of the peninsula.[19] (See U.S. Exs. 234-38; Emhart Ex. 15; Trial Tr., vol. XIV, 8:20-8:24, 9:13-9:23, June 10, 2015, ECF No. 396.) In addition to this facility, Metro Atlantic also conducted two operations for brief periods of time on the western side of the peninsula, along the bank of the Woonasquatucket River, southwest of its main building. (See U.S. Exs. 237-38, 240; Trial Tr., vol. I, 127:18-127:20, 140:25-141:14, 143:24-144:8, ECF No. 383.) For “about a year” in approximately 1962 or 1963, Metro Atlantic manufactured trifluralin, a pesticide, in an approximately thirty-foot high, two-story temporary structure - referred to as the “Texas Tower” by employees who worked there - that it constructed in that area. (Tr. of Deposition of Daniel Paterson (“Paterson Dep. Tr.”) 24:21; see also id. at 23:4-23:11, 24:18-24:22, 25:19-25:25; Trial Tr., vol. I, 140:25-141:14, ECF No. 383; Trial Tr., vol. VII, 48:7-48:13, June 1, 2015, ECF No. 389; U.S. Ex. 237; Emhart Exs. 13, 329.)[20] Later, in the mid-1960s, Metro Atlantic manufactured HCP in a separate building (“HCP building”) located in the same area as Metro Atlantic’s previous trifluralin operation.[21]

NECC began to operate its drum-reconditioning business on the peninsula in approximately 1952. (See RIR Table 1-1, U.S. Ex. 43.) NECC’s buildings were south of Metro Atlantic’s main building on the eastern side of the peninsula. (See Trial Tr., vol. I, 126:25-127:1, ECF No. 383; U.S. Ex. 238.) The area in which Metro Atlantic manufactured trifluralin and HCP was situated to the west of the NECC buildings. (See Trial Tr., vol. I, 126:25-127:1, ECF No. 383; U.S. Ex. 238.) Like Metro Atlantic’s buildings, the NECC buildings also underwent change throughout NECC’s tenure on the peninsula.

An access road ran in a north-south direction on the peninsula, past NECC’s buildings and Metro Atlantic’s main building and HCP building (during the time period in which that building existed). (See Trial Tr., vol. I, 124:1-124:9, ECF No. 383; Trial Tr., vol. VII, 110:4-110:8, ECF No. 389; U.S. Ex. 238.) The road provided unimpeded access from Smith Street at the northern portion of the peninsula to a waste disposal area (“the WDA”) in the southern portion of the peninsula. (See Trial Tr., vol. I, 124:1-124:9, ECF No. 383.) During Metro Atlantic’s and NECC’s time on the peninsula, the WDA increased in size, and the amount of material discarded in the WDA also increased through the years. (See id. at 123:18-123:21, 133:23-134:1, 136:10-136:25, 139:7-139:19, 143:13-143:23, 149:19-149:21; Trial Tr., vol. VII, 34:9, 34:12-34:14, 38:13-38:16, 39:5-39:11, 42:2-42:5, ECF No. 389; U.S. Exs. 234-38, 240, 242; Emhart Exs. 325A, 326A, 327A.)

In 1972, a large fire damaged all of the buildings on the peninsula and, as of March 1974, all of them had been demolished. (See N. Providence Fire Dept. Fire Reports 36-37, U.S. Ex. 16; Trial Tr., vol. III, 141:20-142:8, May 20, 2015, ECF No. 385; Trial Tr., vol. VII, 97:1-97:12, ECF No. 389; Emhart Ex. 24.)

B. Overview of Industrial Practices

1. Metro Atlantic’s Main-Building Operations

In its main building, Metro Atlantic manufactured several textile chemicals, including water repellants, resins, cotton softeners, powdered soaps, reserve salt (an anti-bleeding agent for textile dyes or a metal stripper), and sulfonated tallow for wool. (See Trial Tr., vol. VII, 203:10-203:17, ECF No. 389; Tr. of Deposition of Lawrence R. Bello (“Bello Dep. Tr.”) 9:6-9:13.) In addition, Metro Atlantic received and relabeled packages of dye. (See Tr. of May 13, 2013 Deposition of Joseph Buonanno, Jr. (“J. Buonanno 5/13/13 Dep. Tr.”) 106:19-107:17.) The raw materials used in connection with the manufacture of these products included alcohols, formaldehyde, urea, sulfur trioxide, metal salts, fixatives, melamine, detergents, silicone, nitrobenzene, boric acid, sulfuric acid, citric acid, hydrochloric acid, tallow, methanol, and isopropyl. (See Trial Tr., vol. VII, 203:18-203:22, ECF No. 389; Bello Dep. Tr. 34:16-35:19; Tr. of Jan. 17, 2003 Deposition of Joseph Buonanno, Jr. 17:7-17:21, 84:10-85:20.)

Because the Court finds that Emhart is liable under CERCLA as a result of releases that occurred in connection with Metro Atlantic’s manufacture of HCP (which is detailed below), it need not decide whether Metro Atlantic is liable under CERCLA for a release of a hazardous substance in connection with its main-building operations. However, findings regarding two aspects of Metro Atlantic’s main-building operations - the destinations of solid and liquid waste - bear on critical factual disputes in this case. Therefore, these two aspects are addressed below.

a. Destination of Solid Waste

The evidence demonstrates that, through the years that it operated on the peninsula, Metro Atlantic deposited some of its solid waste from its main-building operations in the WDA in the southern portion of the peninsula. Numerous witnesses recounted observing varying types of Metro Atlantic refuse, including laboratory jars and other glassware (some of which contained residues), galvanized steel 20-gallon or 25-gallon DuPont Chemical cans (some with shipping labels to Metro Atlantic), dyes, barrels, and drums. (Trial Tr., vol. I, 220:13-220:18, 220:21-221:23, ECF No. 383; Trial Tr., vol. II, 10:6-10:20, 11:2-11:15, 11:21-12:7, 12:16-13:2, 38:9-38:16, 42:17-43:4, 48:8-48:10, May 19, 2015, ECF No. 384; Trial Tr., vol. III, 132:6-132:17, ECF No. 385; U.S. Exs. 183-84, 186; Tr. of June 12, 2013 Deposition of Raymond Nadeau (“R. Nadeau 6/12/13 Dep. Tr.”) 78:11-78:14; Tr. of May 16, 2013 Deposition of Vincent Buonanno (“V. Buonanno 5/16/13 Dep. Tr.”) 382:13-382:16, 399:19-400:22, 401:3-401:13, 402:8-402:16; see also U.S. Ex. 34 (minutes from a 1964 meeting of the North Providence Town Council in which a representative of Metro Atlantic acknowledged “years of dumping”).) Don Asselin, who “used to scavenge through the dumpsite looking for lumber to build treehouses” as a child in the early 1960s, recalled seeing Metro Atlantic employees back trucks emblazoned with Metro Atlantic’s name up to the WDA in order to allow them to conveniently dump waste. (Trial Tr., vol. II, 28:18, 32:18-33:5, 36:13-36:14, 40:14-40:17, 47:25-48:5, 50:9-50:17, ECF No. 384.) Similarly, Raymond Nadeau, who worked for NECC from the mid-1950s to 1969, referred to the WDA as “Metro’s dump” and recalled seeing Metro Atlantic employees drive Metro Atlantic trucks down to the WDA to dump waste. (R. Nadeau 6/12/13 Dep. Tr. 78:5-78:7, 78:15-78:25; Tr. of Raymond Nadeau’s Trial Testimony in Home Insurance Case (“R. Nadeau Home Ins. Trial Tr.”) 79:24-80:4; Tr. of Sept. 10, 2008 Deposition of Raymond Nadeau (“R. Nadeau 9/10/08 Dep. Tr.”) 7:4-7:5.) Nadeau testified that Metro Atlantic used the WDA throughout the period of his employment with NECC. (R. Nadeau Home Ins. Trial Tr. 79:16-80:8.)[22]

However, the WDA was not always the exclusive destination for the solid waste generated in Metro Atlantic’s main-building operations. Several former Metro Atlantic employees testified that, during the mid-1960s, there was a dumpster adjacent to the southwest corner of Metro Atlantic’s main building in which the waste generated in that building was deposited. (See Trial Tr., vol. XIV, 4:11-4:13, 17:24-18:23, 21:2-21:17, 24:9-24:13, 33:20-34:12, ECF No. 396; Emhart Ex. 351A; Tr. of John Turcone’s Trial Testimony in Home Insurance Case (“Turcone Home Ins. Trial Tr.”) 47:19-47:22, 49:11-49:20; Tr. of Sept. 12, 2013 Deposition of John Turcone (“Turcone 9/12/13 Dep. Tr.”) 27:18-27:23; Tr. of Dec. 16, 2002 Deposition of John Turcone (“Turcone 12/16/02 Dep. Tr.”) 11:21-12:9, 44:6-45:5, 57:23-58:9; J. Buonanno 5/13/13 Dep. Tr. 118:19-118:25; see also Locke Slide 14, Emhart Ex. 342.) The dumpster was described as a “Truk-Away” or roll-off container. (J. Buonanno 5/13/13 Dep. Tr. 119:12-119:21; see Tr. of Oct. 29, 2008 Deposition of John Turcone (“Turcone 10/29/08 Dep. Tr.”) 18:15-18:25; Tr. of Nov. 30, 1999 Deposition of John Turcone (“Turcone 11/30/99 Dep. Tr.”) 15:2-15:15.) Consistent with this testimony, Robert D. Mutch, an expert in aerial-photographic interpretation, identified a possible roll-off dumpster adjacent to Metro Atlantic’s main building in an April 1965 aerial photograph. (Trial Tr., vol. VII, 12:6, 24:12-24:18, 64:2-64:11, ECF No. 389; Emhart Ex. 336B.)

Therefore, this Court finds that, during the time that it operated on the peninsula, Metro Atlantic disposed of the solid waste generated in its main-building operations in both dumpsters and the WDA.

b. Destination of Liquid Waste

This Court finds that, at some point between 1956 and 1964, Metro Atlantic’s main building was connected to North Providence’s municipal sewer system and that at least some of the chemical waste generated in that building was discharged into this sewer system. An article from the Providence Journal dated November 22, 1956 indicated that, intermittingly, Metro Atlantic’s wastewaters were dumped into the tailrace. (U.S. Ex. 84; see also Trial Tr., vol. X, 89:10-89:12, June 4, 2015, ECF No. 392.) North Providence Town Council meeting minutes from the 1950s and 1960s indicate that Metro Atlantic’s main building connected to the town sewer system at some point between 1956 and 1964. Minutes from October 1, 1956 stated that Metro Atlantic had, by that date, tied its domestic sewage system in with the town’s. (Emhart Ex. 275.) Minutes from November 19, 1956 related that State of Rhode Island health officials had advised Metro Atlantic to cease dumping chemicals into the tailrace under threat of civil or criminal action. (Emhart Ex. 276.) According to the minutes from June 22, 1964, a Metro Atlantic representative told members of the North Providence Town Council that Metro Atlantic’s chemical waste went to the sewer system and not to the tailrace. (Emhart Ex. 277.) At this same meeting, the representative also explained that, after its chemical waste was analyzed, Metro Atlantic was given permission to discharge its chemical waste into the town’s sewer system. (Id.) The November 22, 1956 Providence Journal article quoted Carleton Maine, who worked for the Division of Water Supply and Pollution Control with the Rhode Island Department of Health (“RIDOH”) from the mid- to late-1950s through the mid-1970s (see Tr. of April 29, 2009 Deposition of Carleton Maine (“Maine 4/29/09 Dep. Tr.”) 6:1-6:11; Tr. of May 22, 2013 Deposition of Carleton Maine (“Maine 5/22/13 Dep. Tr.”) 36:3-36:8), as stating that the RIDOH Division of Sanitary Engineering “[had] advised Metro-Atlantic Co. to discharge wash waters into the town sewerage system.” (U.S. Ex. 84; see also Trial Tr., vol. X, 89:10-89:12, ECF No. 392.) Meeting minutes from July 6, 1964 explained that a committee that was formed to tour Metro Atlantic’s facilities concluded after its view of the premises that “nothing . . . [was] going into the water, except water off of drain pipes[, ] and [that] all chemical waste was deposited through the sewer system.” (Emhart Ex. 278.)

Similarly, Maine testified that Metro Atlantic was connected to the North Providence sanitary-sewer system in 1956. (Maine 4/29/09 Dep. Tr. 18:2-18:7, 34:19-34:25, 35:5-36:12; Maine 5/22/13 Dep. Tr. 28:2-28:5, 58:17-58:22, 59:12-59:13.) Maine explained that a representative of Metro Atlantic showed him a concrete pit in the basement of Metro Atlantic’s main building where all the drainage from Metro Atlantic’s main-building operations drained before being pumped to the sewer. (Maine 5/22/13 Dep. Tr. 28:10-30:9, 31:12-32:17, 58:17-58:22, 59:12-59:13.) Maine did not observe any pipes leading to the tailrace at this time. (Id. at 30:18-30:19.) Maine testified that he “found no waste going to the [tailrace] from [Metro Atlantic] . . . . Everything was tied into the sewer system.”[23](Maine 4/29/09 Dep. Tr. 35:16-35:18.)

Based on his review of the town council meeting minutes, the transcripts of Maine’s depositions, and various plans depicting sewer lines in the vicinity of the peninsula, as well as his inspections of sewer lines in the 1970s, L. Robert Smith - an expert in sewer systems and waste disposal practices - concluded that Metro Atlantic’s main building was connected to the sanitary-sewer system for all of its chemical and sanitary waste, beginning sometime between 1942 and 1956.[24] (Trial Tr., vol. X, 3:11, 11:23-12:5, 12:17-15:2, 26:23-27:3, 32:9-32:13, 33:10-33:19, 45:6-45:9, 47:18-47:24, ECF No. 392.) One of the plans reviewed by Smith depicted several wyes connected to the main sewer line on Smith Street.[25] (Emhart Ex. 343B; Trial Tr., vol. X, 19:22-20:4, ECF No. 392.) A notation on this plan states: “Engineer see owner about drains.” (Emhart Ex. 343B; Trial Tr., vol. X, 20:15-21:16, ECF No. 392.) The orientation and location of the wyes on this plan, along with Maine’s testimony about the sewer pit, led Smith to conclude that Metro Atlantic’s sewer connection ran from the sewer pit, through the main building and over the tailrace, and connected to the main sewer line via one of the wyes depicted in the plan. (Trial Tr., vol. X, 47:18-47:24, 48:9-48:22, 53:18-53:23, 134:15-135:1, 135:13-135:17, 136:5-136:16, ECF No. 392.)

Smith’s opinions were also informed by his experience as a part-time sewer inspector for North Providence in the early 1970s. (Id. at 6:12-6:19, 6:25-7:3, 8:8-8:10.) On one occasion during his tenure, the sewer line on Smith Street in the vicinity of the peninsula was inspected and found not to need repair. (Id. at 14:21-15:2, 21:17-21:19, 22:4-22:24.) On another occasion, Smith descended a manhole in an area away from the peninsula and observed a sewer line extending towards the direction of the tailrace and the area where Metro Atlantic’s main building once stood, although he acknowledged that he could not say for certain whether the line extended onto the peninsula. (Id. at 13:16-13:18, 14:10-14:19, 24:14-25:21, 60:17-61:7, 132:6-133:20; Emhart Ex. 344.)

Indeed, Ray K. Forrester - a chemical engineer and the Government’s expert in the fields of chemical process engineering, chemical manufacturing waste handling practices, and environmental forensics - agreed that, at some point between 1956 and 1964, Metro Atlantic began discharging its chemical waste from its main-building operations into North Providence’s municipal sewer system. (Trial Tr., vol. II, 97:9-97:10, 97:17, 107:18-108:11, ECF No. 384; Trial Tr., vol. III, 147:6-147:13, ECF No. 385; Trial Tr., vol. IV, 112:20-113:9, May 21, 2015, ECF No. 386.)

Although this Court finds that Metro Atlantic’s main building was connected to the municipal sewer system, the evidence also suggests that some of the liquid chemical waste that was generated in this building was nonetheless discharged into the tailrace during the time when the building was connected to the sewer system. Joseph Nadeau, who worked as a laborer for Metro Atlantic in the 1964-65 timeframe, recalled washing residual waste from filter presses, leaky drums, and leaky pipes into a drain. (Trial Tr., vol. XIV, 3:11, 4:11-4:13, 4:17-4:20, 17:10-17:11, 17:15-17:19, 37:25-38:12, 40:20-41:3, 43:5-43:13, 43:18-43:22, 44:11-45:4, 55:21-56:2, ECF No. 396.) Nadeau saw the drain discharging liquid wastes into the tailrace. (Id. at 38:13-39:3, 41:2-41:10, 45:5-45:8.) Although Emhart characterizes Nadeau’s testimony in this regard as “based more on assumptions and speculation than actual knowledge” (Emhart’s Post-trial Br. 88, ECF No. 378), Nadeau testified that he personally observed materials discharging from Metro Atlantic’s main building into the tailrace (Trial Tr., vol. XIV, 38:13-39:3, ECF No. 396).

2. Metro Atlantic’s Trifluralin Operations

For approximately one year in 1962 or 1963, Metro Atlantic manufactured trifluralin on the western side of the peninsula in a small temporary structure known as the Texas Tower. (See Paterson Dep. Tr. 12:13-12:21, 23:4-23:11, 24:18-24:22, 25:19-26:11; Tr. of Feb. 10, 2003 Deposition of Thomas F. Cleary (“Cleary Dep. Tr.”) 60:6-61:19; Turcone 9/12/13 Dep. Tr. 26:19-27:11, 56:3-56:7, 60:16-60:22; Turcone 10/29/08 Dep. Tr. 24:21-26:3, 78:25-79:19; Turcone 12/16/02 Dep. Tr. 32:6-32:12, 47:19-47:20; see also Trial Tr., vol. VII, 48:7-48:13, ECF No. 389; Emhart Exs. 13, 329.) The Texas Tower had no drains or troughs; liquid waste was washed out of the building and onto the ground outside. (See Turcone 9/12/13 Dep. Tr. 110:1-110:14; Turcone 12/16/02 Dep. Tr. 32:16-32:21.) Additionally, a pipe ran approximately one foot off the ground from the Texas Tower to the Woonasquatucket River and discharged an unknown clear liquid. (See Turcone 9/12/13 Dep. Tr. 97:13-97:15; Turcone 10/29/08 Dep. Tr. 28:17-29:8, 97:11-97:23.) The liquid corroded the discharge pipe, which needed to be replaced frequently as a result.[26] (See Turcone 12/16/02 Dep. Tr. 19:14-20:8.)

3. NECC’s Drum-Reconditioning Operations

NECC reconditioned 55-gallon drums on the peninsula from approximately the late 1940s or early 1950s until the early 1970s. (See RIR Table 1-1, U.S. Ex. 43; Trial Tr., vol. VII, 195:23-196:9, ECF No. 389.) During its time on the peninsula, NECC received drums from a litany of entities, including Metro Atlantic, the DOD, and a group of unknown drum “peddlers.”[27](Tr. of Feb. 13, 2003 Deposition of Joseph Cifelli (“Cifelli 2/13/03 Dep. Tr.”) 8:5; see Tr. of March 28, 2003 Deposition of Vincent J. Buonanno (“V. Buonanno 3/28/03 Dep. Tr.”) 123:23-135:20; R. Nadeau 6/12/13 Dep. Tr. 22:21-23:7, 72:14-72:25; Tr. of May 21, 2013 Deposition of Joseph Cifelli (“Cifelli 5/21/13 Dep. Tr.”) 28:12-28:14; Trial Tr., vol. VIII, 53:25-54:4, June 2, 2015, ECF No. 390; Trial Tr., vol. IX, 90:10-90:13, 90:20-90:25, 164:21-165:3, June 3, 2015, ECF No. 391; Locke Slide 68, Emhart Ex. 342.) Many of the drums that NECC received contained residues of the substances that were once contained in the drums. (See Tr. of Oct. 1, 2002 Deposition of Raymond Nadeau (“R. Nadeau 10/1/02 Dep. Tr.”) 12:14-12:16; Tr. of Sept. 10, 2008 Deposition of Raymond Nadeau (“R. Nadeau 9/10/08 Dep. Tr.”) 29:21-29:24, 31:25-32:9; Cifelli 2/13/03 Dep. Tr. 41:23-42:11; Turcone 11/30/99 Dep. Tr. 27:5-27:9.) Some of this residual material would leak onto the beds of the NECC trucks, and the drivers would hose these materials onto the ground on the peninsula. (Tr. of Jan. 7, 2003 Deposition of John Priest (“Priest Dep. Tr.”) 24:9-25:5.)

a. Drum Storage

NECC stacked drums in several locations on the peninsula, including to the south of the NECC buildings and to the east and west of the access road. (Trial Tr., vol. I, 130:1-130:6, 133:18-133:19, 136:6-136:7, 157:25-159:2, ECF No. 383; Trial Tr., vol. VII, 33:19-33:21, 38:11-38:12, 41:19-41:25, 54:12-54:15, 69:1-69:2, ECF No. 389; U.S. Exs. 234-35, 239, 242; Emhart Exs. 326-32.) Additionally, there is evidence that NECC routinely stored barrels along the western side of the peninsula, which abuts the Woonasquatucket River. (See Emhart Exs. 10, 329, 330A, 331-33, 340; Locke Slides 80, 82-83, Emhart Ex. 342; Trial Tr., vol. VII, 51:4-51:8, 69:1-69:2, ECF No. 389.) However, although small quantities of drums were sometimes stored in the specific area where Metro Atlantic manufactured trifluralin and HCP along the western side of the peninsula (see Emhart Exs. 330A, 332-33, 340; Locke Slides 80, 82-83, Emhart Ex. 342; U.S. Exs. 241, 243; Trial Tr., vol. I, 147:6-147:11, 151:8-151:11, ECF No. 383; Trial Tr., vol. VII, 69:2-69:8, 71:14-71:20, 91:14-91:16, ECF No. 389), this was not an area of significant drum storage by NECC. (See Trial Tr., vol. XX, 81:15-82:1, 83:5-83:8, 84:6-84:9, June 25, 2015, ECF No. 402.)

The amount of stockpiled drums and the places in which those drums were stored increased during NECC’s tenure on the peninsula. (See Trial Tr., vol. I, 123:12-123:17, ECF No. 383; Trial Tr., vol. VII, 34:7-34:8, 34:12-34:14, 41:25-42:1, 84:13-84:15, ECF No. 389; Emhart Exs. 325A, 333.) Although there is some testimony that NECC took everything away when it left the peninsula in the early 1970s (see, e.g., V. Buonanno 3/28/03 Dep. Tr. 178:8-178:16; Tr. of May 16, 2013 Deposition of Vincent J. Buonanno (“V. Buonanno 5/16/13 Dep. Tr.”) 400:19-400:22), it is clear (and the parties agree) that a significant number of drums remained just to the north of the impoundment, an area of standing liquid discussed in more detail below, see infra Section I.B.3.b.ii. (See Trial Tr., vol. VII, 97:22-97:24, ECF No. 389; Emhart Ex. 24.) An aerial photograph from March 1974 revealed evidence of tracks from earth-moving equipment in the area of the NECC buildings. (Trial Tr., vol. VII, 97:13-97:18, 98:13-98:16, ECF No. 389; Emhart Ex. 24.) Mutch concluded from the orientation of the tracks that material had been pushed into the tailrace. (Trial Tr., vol. VII, 97:15-97:18, ECF No. 389.) Additionally, several drums in this area had found their way into the impoundment. (Id. at 97:24-98:2, 98:23-99:10; Emhart Ex. 24.)

Over the years of NECC’s operations on the peninsula, NECC employees often stacked drums on their sides in pyramids on the ground. (See Cifelli 5/21/13 Dep. Tr. 28:15-29:14, 30:5-30:16; Tr. of Sept. 30, 2002 Deposition of Joseph Cifelli (“Cifelli 9/30/02 Dep. Tr.”) 13:9-13:18; Trial Tr., vol. II, 38:2-38:6, 41:1-41:9, ECF No. 384.) Stacking drums in this fashion caused residual material to leak out of the drums and spill onto the ground. (See Cifelli 5/21/13 Dep. Tr. 29:21-30:1; Cifelli 2/13/03 Dep. Tr. 52:23-53:14; Cifelli 9/30/02 Dep. Tr. 18:7-19:2, 44:7-45:4.) Aerial photography demonstrated significant soil staining near NECC’s buildings. (See, e.g., Trial Tr., vol. I, 129:19-129:24, ECF No. 383; Trial Tr., vol. VII, 45:24-46:2, 84:15-84:16, ECF No. 389; Emhart Exs. 10, 328, 333; U.S. Ex. 239.) Additionally, elevated concentrations of 2, 3, 7, 8-TCDD were found in areas south of the HCP building footprint and north of the WDA on the western side of the peninsula, locations where NECC stored drums that do not appear to be associated with Metro Atlantic’s HCP-manufacturing operations. (See Locke Slide 97, Emhart Ex. 342; Medine Slide 22, U.S. Ex. 501; Andrews Slide 5, U.S. Ex. 542; Trial Tr., vol. XX, 123:10-124:9, 125:15- 125:21, 127:10-127:17, 157:20-159:22, 162:3-162:11, ECF No. 402.)

b. Drum-Reconditioning Processes

NECC reconditioned both open-head drums and closed-head drums, and it employed a separate reconditioning process for each type of drum.

i. Open-Head Drums

NECC reconditioned open-head drums by passing them through a large, open-air incinerator. (See Trial Tr., vol. XIV, 48:25-50:22, ECF No. 396; Cifelli 9/30/02 Dep. Tr. 12:1-12:5, 14:13-15:15.) Before open-head drums could be passed through the incinerator, NECC employees rejected or set aside the drums that could not be reconditioned because of their condition or if they contained too much residue or a product that could not or should not be burned. (See Cifelli 2/13/03 Dep. Tr. 24:19-25:13, 26:13-26:21; R. Nadeau 10/1/02 Dep. Tr. 12:1-12:7; Turcone 10/29/08 Dep. Tr. 48:17-49:4; see also Cifelli 5/21/13 Dep. Tr. 46:14-47:2.) The set-aside drums would eventually deteriorate. (See Cifelli 5/21/13 Dep. Tr. 47:3-47:16.) After unusable drums were rejected or set aside, NECC employees prepared the open-head drums for incineration by burning off any flammable liquids with a match and removing any plastic liners that the drums contained. (See R. Nadeau 6/12/13 Dep. Tr. 105:9-105:20, 205:12-205:24; R. Nadeau 10/1/02 Dep. Tr. 14:15-15:3, 67:20- 69:1; Oct. 27, 2000 Aff. of Raymond Nadeau (“R. Nadeau 10/27/00 Aff.”) ¶ 4, Emhart Ex. 206.)

The drums were fed into the incinerator by a conveyor. (See R. Nadeau 10/27/00 Aff. ¶ 4, Emhart Ex. 206.) The drums were placed upside down onto the conveyor, and any residual material in the drums fell into a concrete pit below the conveyor.[28] (See Cifelli 5/21/13 Dep. Tr. 26:3-26:6; R. Nadeau 10/27/00 Aff. ¶ 4, Emhart Ex. 206.) The conveyor took the drums through the incinerator, and ash and any further residual material dropped into the pit; as the conveyor continued along its route, a chain at the bottom of the conveyor belt scraped into the pit any residual material that fell from the barrels but did not fall directly into the pit. (See R. Nadeau 9/10/08 Dep. Tr. 9:14-13:11; Cifelli 5/21/13 Dep. Tr. 19:22-20:23.) Although the contents of the concrete pit were periodically emptied by “a cesspool-type truck” (Cifelli 5/21/13 Dep. Tr. 26:14-26:18) and by NECC employees shoveling pit contents into empty 55-gallon drums (R. Nadeau 9/10/08 Dep. Tr. 44:19-44:23), the residues in the pit would occasionally overflow and seep into the ground (see Cifelli 5/21/13 Dep. Tr. 26:19-27:10; Cifelli 2/13/03 Dep. Tr. 30:11-30:13). Additional steps in the reconditioning process for open-head drums included sandblasting and painting.[29] (See R. Nadeau 9/10/08 Dep. Tr. 14:12-15:22; R. Nadeau 10/1/02 Dep. Tr. 49:19-50:2; Apr. 2, 2002 Aff. of Raymond Nadeau (“R. Nadeau 4/2/02 Aff.”) ¶ 4, Emhart Ex. 207.)

Incineration creates dioxins, especially octochlorodibenzo-p-dioxin (see Trial Tr., vol. XI, 24:22-25:7, 26:8-26:10, 73:7-73:10, 73:13-73:15, 74:12-74:16, 75:4-75:10, June 5, 2015, ECF No. 393), and a Government expert referred to NECC’s open-head drum reconditioning operation as “a dioxin manufacturing machine.” (Trial Tr., vol. XVIII, 161:18, June 23, 2015, ECF No. 400; see also id. at 161:16-161:24, 162:18-162:22.) In addition to OCDD, ...


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