EPA v. OLIVER MACHINERY CO.

Case summary

OLIVER IS A POTENTIALLY RESPONSIBLE PARTY (PRP) AT THE FOL KERTSMA REFUSE SITE IN GRAND RAPIDS, MICHIGAN. THIS ACTION IS NECESSARY TO ASSUME CONTROL OF AND TO PRESERVE THE U.S. CLAIM REGARDING THE FOLKERTSMA SITE. A. NATURE OF THE DEBTOR'S INVOLVEMENT AT THE SITE THE DEBTOR'S (OLIVER) PREDECESSOR SENT FOUNDRY SAND TO THE FOLKERTSMA SITE (FACILITY) FOR DISPOSAL. FOUNDRY SAND IS A HAZARDOUS SUBSTANCE. THUS OLIVER MACHINERY ARRANGED FOR THE DISPOSAL OF HAZARDOUS SUBSTANCES AT A FACILITY, WITHIN THE MEANING OF SECT 107(A3) OF CERCLA. B. NATURE OF THE USEPA RESPONSE ACTION USEPA IS IN THE INITIAL STAGES OF THE CERCLA RESPONSE ACTION AT THE FOLKERTSMA REFUSE SITE. AFTER NEGOTIATIONS FOR VOLUN TARY CONDUCT OF AN RI/FS TERMINATED IN LATE SEPTEMBER 1987, USEPA INITIATED A FUND-FINANCED REMEDIATED INVESTIGATION/FEA SIBILITY STUDY (RI/FS). THE SITE IS A CANDIDATE FOR THE NAT'L PRIORITIES LIST (NPL). THE RESPONSE COSTS INCURRED THIS FAR ARE $33,271.95. ANOTHER $100,000 HAS BEEN OBLIGATED C. NATURE OF THE BANKRUPTCY PROCEEDING USEPA FIRST LEARNED OF OLIVER'S CHAPTER 11 BANKRUPTCY IN EAR LY AUGUST 1988, WHEN IS RECEIVED A NOTICE OF AMENDMENTS TO DEBTOR'S SCHEDULES AND MATRIX OF CREDITORS. THIS NOTICE WAS NOT PROPER NOTICE TO THE U.S. SINCE, UNDER THE BANKRUPTCY CODE, THE AUSA MUST RECEIVE NOTICE. OLIVER'S AMENDMENT IN- CLUDED, APPARENTLY FOR THE FIRST TIME, A LIST OF 12 OTHER PRPS A THE FOLKERTSMA SITE, AS WELL AS USEPA AND THE STATE OF MICHIGAN. THE NOTICE STATED THAT THE BAR DATE FOR FILING A PROOF OF CLAIM WAS AUGUST 22, 1988. FOR VARIOUS REASONS, (MAINLY BECAUSE OF THE SMALL AMOUNT OF THE CLAIM), USEPA DID NOT FILE ANY PROOF OF CLAIM. ON AUGUST 22, ANOTHER PRP AT THE FOLKERTSMA SITE, BETZ FOUN- DRY, INC. (BETZ) FILED A CLAIM AGAINST OLIVER ON ITS OWN BE- HALF AND ON BEHALF OF USEPA, PURSUANT TO SECT 3005B OF THE BANKRUPTCY CODE. THE DEBTOR (OLIVER) OBJECTED TO THE BETZ'S AMENDED PROOF OF CLAIM, AND THE BANKRUPTCY JUDGE SET A HEAR- ING FOR AUGUST 24, IN ORDER TO CONSIDER THE OBJECTION AND AL SO TO ESTIMATE THE AMOUNT OF THE CLAIM. ON AUGUST 23, 1988, BETZ ATTEMPTED TO SUBPOENA THE FORMER RPM FOR THE FOLKERTSMA SITE, DOUGLAS BALLOTTI, TO TESTIFY AT THE HEARING ON THE 24TH. BALLOTTI, TESTIMONY WAS ALLEGEDLY NEEDED IN ORDER TO HELP ESTIMATE THE AMOUNT OF THE CLAIM. ON AUGUST 24, THE AUSA APPEARED ON BEHALF OF THE U.S. AT THE BANKRUPTCY HEARING IN GRAND RAPIDS. THE ASST. AUSA WAS SUC- CESSFUL IN ARGUING THAT THE SUBPOENA WAS INVALID. SHE ALSO HAD THE HEARING RESCHEDULED TO SEPT. 28, 1988. BY WHICH TIME THE U.S. COULD DETERMINE WHETHER OR NOT WOULD ASSERT A CLAIM ON ITS OWN BEHALF. THE U.S. AS THE RIGHT TO FILE A PROOF OF CLAIM, SINCE IT NEVER RECEIVED PROPER NOTICE OF THE BANKRUPTCY. ATTORNEYS FOR OLIVER (DEBTOR) AND BETZ (CREDITOR STILL WISH TO DEPOSE BALLOTTI. THE DEPOSITION HAS BEEN TENTATIVELY SET FOR SEPT. 26, 1988. THE ATTORNEYS WILL NOT NEED TO DEPOSE BALLOTTI IF THE U.S. TAKES OVER BETZ'S CLAIM AND FILES ITS OWN CLAIM. THIS APPROACH WOULD ALSO PUT THE U.S. IN CONTROL OF ITS OWN CLAIM, WHICH HAS ITS OBVIOUS BENEFITS. D. CAUSE OF ACTION PURSUANT TO SECT 104 OF CERCLA OF 1980, AS AMENDED BY THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, 42 USC SECT 9601 ET SEQ. (CERCLA), USEPA UNDERTOOK AND CONTINUES TO UNDERTAKE RESPONSE ACTIONS AT THE FOLKERTSMA REFUSE SITE IN GRAND RAPIDS, MI (FACILITY). THE FACILITY IS OR MAY BE CON- TAMINATED BY HAZARDOUS SUBSTANCES RELEASED OR THREATENED TO BE AT THE FACILITY. THE DEBTOR, OLIVER MACHINERY CO., IS A SUCCESSOR CORP. TO GRAND RAPIDS FOUNDRY, WHICH SENT FOUNDRY SAND TO THE FACILITY. PURSUANT TO SECT 107(A3) OF CERCLA, THE DEBTOR IS A PERSON WHO ARRANGED

Defendants (1)

• OLIVER MACHINERY COMPANYNamed in complaintNamed in settlement

Facilities (2)

• OLIVER MACHINERY CO

  1025 CLANCY NE, GRAND RAPIDS, MI, 49505

  Registry ID: 110003584336

• FOLKERTSMA REFUSE

  1426 PANNELL ROAD NORTHWEST, GRAND RAPIDS, MI, 49504

  Registry ID: 110009338154

Statutes cited

• CERCLA 107 — Superfund

Enforcement conclusions (1)

• OLIVER MACHINERY COMPANYentered 1989-01-10

  Primary law: CERCLA

Timeline (7 milestones)

• 1988-08-08Enforcement Action Data Entered
• 1988-09-23Referred To Dept Of Justice
• 1988-09-26Complaint Filed With Court
• 1989-01-10Final Order Lodged
• 1989-01-10Final Order Entered
• 1989-01-10Concluded
• 1989-04-10Enforcement Action Closed