EPA v. MUSSELMAN, SCOTT-PEERLESS PLATING

Case summary

BACKGROUND AND NATURE OF CASE THIS REFERRAL CONCERNS A PROPOSED COST RECOVERY ACTION UNDER SECTION 107 OF CERCLA. PEERLESS PLATING CO., LOCATED AT 2554 GETTY STREET, MUSKEGON, MICHIGAN, WAS CONSTRUCTED IN OR ABOUT 1937 AND ESTABLISHED AS A JOB SHOP PLATING OPERA- TION. THE FACILITY WAS OPERATED UNTIL JUNE 30, 1983, WHEN REGULATORY ACTION, LABOR RELATIONS PROBLEMS, AND FINANCIAL CONDITIONS FORCED IT TO CLOSE. PEERLESS DECLARED BANKRUPTCY IN AUGUST, 1983. THE FACILITY HAD BEEN LEFT IN OPERATIONAL CONDITION, THAT IS, ALL PLATING SOLUTIONS REMAINED IN THE PLATING LINES, RAW MATERIALS WERE STORED IN TANKS AND ORIGINAL CONTAINERS, AND DRUMS OF WASTE MATERIAL WERE STORED THROUGHOUT THE BUILDING. ACCESS WAS GENERALLY UNRESTRICTED. DURING THE WEEK OF AUGUST 22, 1983, LOCAL AND STATE AUTHORITIES DETECTED CYANIDE GASES IN THE FACILITY ATMOS- PHERE. THEY NOTIFIED U.S. EPA'S REGION V SPILL RESPONSE SECTION ON SEPTEMBER 1, 1983. ON SEPTEMBER 2, 1983, AN ON-SCENE COORDINATOR DETERMINE D THAT AN IMMEDIATE REMOVAL PURSUANT TO SECTION 104 OF CERCL A WAS NECESSARY TO ABATE THE HAZARDOUS CONDITIONS AT THE SITE (EXPOSURE TO CORROSIVE AND TOXIC MATERIALS AND POISON- OUS GASES). REMOVAL WORK WAS INITIATED ON SEPTEMBER 6, 1983 AND CONCLUDED ON OCTOBER 7, 1983. APPROXIMATELY 37,000 GALLONS OF HAZARDOUS LIQUIDS WERE REMOVED FROM THE SITE, ALONG WITH 62 DRUMS OF HAZARDOUS MATERIALS. SEVEN THOUSAND GALLONS OF SLUDGE WERE PUMPED AND SECURED, AND THE SITE WAS DECONTAMINATED. COSTS INCURRED BY EPA'S CONTRACTOR FOR THE REMOVAL ACTION AMOUNT TO $130,534.14. THE ESTIMATED TAT COSTS FOR THIS ACTION ARE $11,752.00. REGION V PAYROLL COSTS ARE ESTIMATED TO BE $2988.81. CAUSE OF ACTION EPA AUTHORITY TO BRING THIS ACTION TO RECOVER FUNDS EX- PENDED PURSUANT TO SECTION 104 OF THE COMPREHENSIVE ENVIRON- MENTAL RESPONSE, CONPENSATION AND LIABILITY ACT (CERCLA), 42 U.S.C. SECTION 9604, IS PROVIEDE AT SECTION 107 OF CERCLA 42 U.S.C. SECTION 9607. PROPOSED REMEDY RECOVERY OF FUNDS EXPENDED PURSUANT TO SECTION 104 OF CERCLA. RESOURCE REQUIREMENTS THE REGION EXPECTS THAT PARTICIPATION IN THE PEERLESS PLATING CO. BANKRUPTCY PROCEEDING, AS WELL AS NEGOTIATIONS AND A CIVIL TRIAL WITH RESPECT TO THE CLAIMS AGAINST PEERLES S PLATING, SCOTT MUSSELMAN AND JOHN GIFFORD, WILL BE NECES- SARY TO RECOVER THE GOVERNMENT'S COSTS. ISSUES OF NATIONAL OR PRECEDENTIAL SIGNIFICANCE SCOTT MUSSELMAN, THE SOLE PEERLESS STOCKHOLDER, HAS NOT DECLARED BNAKURPTCY AND IS THE OWNER OF ANOTHER SUBSTANTIAL BUSINESS IN MUSKEGON. BECAUSE OF HIS AWARENESS OF THE STATE OF THE PEERLESS SITE WHEN ABANDONED, HE IS A PERSON WHO AR- RANGED DISPOSAL OF HAZARDOUS SUBSTANCES WITHIN THE MEANING OF SECTION 107(A)(3) OF CERCLA. A RULING TO THAT EFFECT WOULD EXTNED THE DECISION IN U.S. V. NEPACCO (DENNEY FARMS) BEYOND THE WESTERN DISTRICT OF MISSOURI AND WOULD THUS CON- STITUTE A VALUABLE PRECEDENT. IT MAY NOT BE NECESSARY TO REACH THE DENNEY FARMS QUESTION, BECAUSE MUSSELMAN WAS ALSO THE OPERATOR OF THE PEERLESS FACILITY AS DEFINED IN SECTION 101(20), BY VIRTUE OF HIS DAY-TO-DAY CONTROL OF PLANT OPERATIONS. IN THE ALTERNATIVE, WE WILL ARGUE THAT THE CORPORATE VEIL SHOULD BE PIERCED TO FIND MUSSELMAN LIABLE AS AN OWNER UNDER SECTION 107(A)(1) AND (2). JUSTIFICATION MR. JOSEPH HARPER, THE TRUSTEE IN BANKRUPTCY FOR PEERLESS PLATING CO., HAS STATED TH

Defendants (2)

• PEERLESS PLATING CONamed in complaintNamed in settlement
• SCOTT MUSSELMANNNamed in complaintNamed in settlement

Facilities (1)

• PEERLESS PLATING COMPANY INCORPORATED

  2554 GETTY STREET, MUSKEGON, MI, 49444

  Registry ID: 110003583989

Statutes cited

• CERCLA 107 — Superfund

Enforcement conclusions (1)

• MUSSELMAN, SCOTT A.entered 1987-05-18

  Primary law: CERCLA

  Federal penalty: $160,000

Timeline (8 milestones)

• 1984-06-29Referred To Headquarters
• 1984-07-31Referred To Dept Of Justice
• 1985-05-21Referred TO U.S. Attorney
• 1985-05-28Complaint Filed With Court
• 1987-05-18Final Order Lodged
• 1987-05-18Final Order Entered
• 1987-05-18Concluded
• 1987-06-29Enforcement Action Closed