Full opinion text
FINDINGS OF FACT AND RULINGS OF LAW LOUGHLIN, District Judge. The United States of America instituted suit on behalf of the Administrator of the United States Environmental Protection Agency (hereafter EPA) by complaint dated May 15, 1980. This is a civil action instituted pursuant to Section 7003 of the Resource Conservation Recovery Act (“RCRA”) 42 U.S.C. 6973. This is also a civil action under Sections 301 and 309 of the Clean Water Act, 33 U.S.C. §§ 1311 and 1319 against defendant Great Lakes Container Corporation (hereafter GLC). The original suit filed May 15, 1980 was against the following defendants. Ottati & Goss, Inc., a corporation organized and existing under the laws of the State of New Hampshire. Louis Ottati, Jr., president of Ottati & Goss, Inc. Wellington Goss, vice-president of Ottati & Goss, Inc. Senter Transportation Company, Inc., a Massachusetts corporation registered to do business in New Hampshire and the owner and lessor of the Ottati & Goss site at times relevant up to June 29, 1979. On that date, Senter Transportation Company, Inc. sold the site and assigned its interest in the lease to the Concord Realty Trust. The Concord Realty Trust, a trust registered in the Rockingham County Registry of Deeds, Kingston, New Hampshire. The Concord Realty Trust is the owner and lessor of the Ottati & Goss site. Sally E. Senter, a trustee of the Concord Realty Trust. Richard A. French, an operator of the Ottati & Goss site. French Processing, Inc., an operator of the Ottati & Goss site. Great Lakes Container Corporation, a corporation organized and existing under the laws of the State of Michigan and having a branch barrel reconditioning plant at and doing business at the Great Lakes Container Corporation site at Rural Route 125, Hanverhill Road, Kingston, New Hampshire. Subsequently, in October, 1980, the State of New Hampshire was allowed to intervene as a plaintiff. Then, in November, 1980 the Town of Kingston was also allowed to intervene as a plaintiff. On December 2, 1980 the court made the following order on plaintiff’s motion for preliminary injunction. Pending hearing on the merits or further order of this court, defendants are ordered to cease storing and disposing of solid and hazardous waste at the Ottati & Goss site. Defendants shall not conduct any activities there without prior approval of EPA and the State, until such time as all solid and hazardous waste is removed from the site. Defendants shall formulate a plan on or before January 6, 1981 relative to fencing, guarding the site area with security personnel, maintaining suitable firefighting equipment on site and in the event the defendants, individually severally or jointly are found liable, specifically set forth remedial measures. Defendants shall formulate a plan for the removal of all solid and hazardous waste from the Ottati & Goss site, such plan to be submitted for approval to the EPA and the State of New Hampshire. On January 20, 1981 the court granted summary judgment as to Sally Senter as an individual. On August 13, 1982 third-party actions were brought against the following defendants: Solvents Recovery Service of New England, Inc. (SRS), General Electric (GE), Lewis Chemical Corporation and Lilly Chemical Products, Inc. Solvents Recovery Service of New England, Inc. is a corporation organized under the laws of the State of Connecticut with a principal place of business in Southington, Connecticut. General Electric is a corporation organized under the laws of the State of Delaware and germane to this case, having a place of business in Chelsea, Massachusetts. Lewis Chemical Corporation is a corporation organized under the laws of the Commonwealth of Massachusetts, having a principal place of business in Hyde Park, Massachusetts. Lilly Chemical Products, Inc. is a corporation organized under the laws of the State of Indiana and germane to this case, having a place of business in Templeton, Massachusetts. On September 14, 1982 a third-party action was brought against International Minerals and Chemicals Corporation (IMC). International Minerals and Chemical Corporation is a corporation organized under the laws of the State of New York with a principal place of business in Northbrook, Illinois. The area involved in this location is located west of Route 125 in Kingston, New Hampshire. One parcel of land consists of approximately 28 acres and is owned by Senter Transportation Company which has leased approximately one acre to the Ottati & Goss corporation. The court after hearing pre-view statements with the assistance of counsel took a view of the premises. The view also included terrain east of Route 125 which consisted of a wet, marshy area. A view can be considered as evidence. Chouinard v. Shaw, 99 N.H. 26, 104 A.2d 522 (1954). The view was taken while the premises were snow covered and material had been removed from certain areas. While on the view the court saw and noted the area, for the purposes of this litigation, i.e., two brooks given the sobriquet of the North and South Brooks. Also observed were buildings formerly used by the Great Lakes Container Corporation, various wells, a burst trailer, roadways, Hampton Electric Power Company lines, so-called lagoon area, contours of Route 125 on its easterly and westerly bounds, contiguous property lines, wooded areas, set areas, declivities, slopes, depressions and elevations brought to the court’s attention. Additionally, there was a general overall view of the area as demonstrated by counsel. Evidence was adduced during the trial that some 400 million years ago, this area of New Hampshire was part of a large basin of the sea into which a whole series of sands, silts, fine-grain materials, were deposited as sediments. After 30,000 to 40,000 feet of what became sandstones, sand and clays had accumulated, the beds were worked, folded and faulted over 150 million years into a very compact and very hard bedrock, called the Elliot Formation. At a time 50,000 to 60,000 years ago, there was glacial ice two miles high over the area, with its weight pushing down on the bedrock; when the ice melted the pressure was released causing fractures and weaknesses, with erosion, and in those areas valleys developed. At this time, there was a geological-climatological event that changed the surface of the area even more. This large ice sheet pushed down from Canada riding the top of the bedrock and scouring it, scooping it up, digging and depositing, and creating till, a very fine-grain material formed as a blanket at the bottom of the ice sheet. The till is dense, tough and relatively impermeable and exists as a discontinuous blanket over the bedrock at Kingston. The Kingston site is located on two parcels of land, west of New Hampshire Route 125 in Kingston, New Hampshire and of a fresh water marsh east of Route 125 which extends to Country Pond. One parcel of land consists of approximately twenty-eight (28) acres owned by the defendant Senter, who leased approximately one (1) acre of the property to Ottati & Goss Corporation, six (6) acres to Great Lakes Container Corporation and a larger area to the Austin Powder Company. The second parcel consists of approximately five and eighty-eight one-hundredths (5.88) acres owned by Great Lakes Container Corporation. The marsh consists of approximately twenty (20) acres and was purchased by IMC in 1984 during the course of this trial. Maximum land elevation is approximately one hundred forty (140) feet above mean sea level to the north, south, and west of the site and slopes to approximately one hundred twenty-five (125) feet above mean sea level at the eastern edge of the site along Route 125. Two unnamed surface brooks on site were identified as the North Brook and South Brook in the evidence. North Brook flows eastward across the site, passing under Route 125 via a culvert and then into the marsh area west of Country Pond. The South Brook is fed by marsh areas located west and east of Mill Road. The South Brook flows eastward along the southern perimeter of the site, through a culvert under Route 125 and into the Country Pond marsh. Route 125 runs north to south and separates the two parcels on its west from the marsh and Country Pond on its east. The Exeter-Hampton Electric power line easement, running northeasterly-southwesterly, divides the westerly portion into two (2) separate areas. Private residences are located west, south and northeast of the site. As of September, 1978 there were legal facilities outside of New Hampshire where sludge could be hauled as well as caustic waste. One such facility was located in Niagara Falls, New York. New Hampshire would not allow dumping of waste within the state. Procedural History of the Litigation At the risk of some repetition, the chronological procedural history concerning the litigation is as follows. The United States filed its original complaint on May 15, 1980 naming the ten original debtors. Its claim was based on § 7003 of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6973; the United States prayed for an order regarding the Ottati & Goss site against Ottati & Goss, Inc. Louis Ottati, Jr. and Wellington Goss, against Senter Transportation, Concord Realty, Bernard Senter, and Sally Senter, against Richard French and French Processing and against GLC, that would enjoin the defendants from further storage or disposal of hazardous waste at the site, direct them to secure the site and prevent further leaking from drums on the site, and direct them to devise a remedial plan for cleaning up the site. The United States also prayed for an order regarding the Kingston Steel Drum (KSD) site against GLC that would enjoin it from further discharges, direct it to prevent further discharges, direct it to prevent further migration of chemical wastes from the site, and direct it to devise a remedial plan for cleaning up the site. On October 2, 1980, the State of New Hampshire was allowed to intervene as plaintiff against all ten original defendants. Basing its claim on RCRA § 7002 (1978), 42 U.S.C. § 6972 (1978), and N.H. RSA 149 (1973), RSA 147:48 et seq. (1979), RSA 147 (1961), and common-law nuisance, the State prayed for an order that would grant the same relief sought by the United States, enjoin GLC from discharging pollutants at the KSD site without a proper permit from the New Hampshire Water Supply and Pollution Control Commission, assess various civil penalties, order reimbursement of its enforcement costs, and award its litigation costs. On November 25, 1980, the Town of Kingston, through Michael R. Priore, John I. Reinfuss, and Ralph E. Southwick, as citizens and as Selectmen of the Town, was permitted to intervene as plaintiff against all ten original defendants. Basing its claim on N.H.RSA 31:88 (1979 Supp.), which authorizes suits to enforce ordinances and regulations made under RSA 31:60 (1970), the Town prayed for an order that would grant the same relief sought by the United States and the State of New Hampshire, enjoin the defendants from violations of § 6.17 and § 7.40 of the Town’s Zoning and Building Code, assess various civil penalties, enjoin defendants from activities that would constitute a nuisance at common law or under RSA 147:3, 4 (1977), order defendants to pay the cost of eliminating any such nuisance under RSA 147:7 (1977), and award its ligitation costs. On January 9, 1981, the three plaintiffs were each permitted to file a First Amended Complaint. The United States added a common-law nuisance claim against the Senter defendants. The State of New Hampshire and the Town of Kingston amended their complaints to maintain consistency with the pleadings of the United States. On January 25, 1983, the United States filed a Second Amended and Supplemental Complaint, adding seven new defendants and new claims under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601 et seq. The United States asserted claims under CERCLA § 106(a) and § 107(a) against the ten original defendants and against the generator defendants (GE, Lewis, Lilly, Geochem, Quinn, and SRS) and IMC. In addition to the relief sought in its earlier complaint, the United States in the Amended and Supplemental Complaint prayed for an order regarding the Ottati & Goss site that would hold “defendants” jointly and severally liable and direct “defendants to reimburse plaintiff for all costs of removal and remedial action____” and for an order regarding the KSD site that would hold IMC liable along with GLC for all remedies, assess a civil penalty for unauthorized discharges into waters of the United States, and order “Defendants to reimburse Plaintiff for all costs of removal and remedial action____” On June 23, 1983, the United States was permitted to amend 11 84 (mislabeled as 1118 in the proposed order) of its Second Amended and Supplemental Complaint to state that hazardous substances discharged onto the ground at the Ottati & Goss site had entered the groundwater and “are migrating ... in the direction of the groundwater flow, under and into the Great Lakes Container Corporation site [KSD site] ...” The amended 1184 also alleged under CERCLA § 107 that “Defendants are jointly and severally liable to Plaintiff .. .for all costs of removal and remedial action incurred to respond to the release and threatened release of hazardous substances from both sites.” The State moved in July 11, 1983, to amend the corresponding paragraph (H 30) in its Second Amended and Supplemental Complaint. Third party Complaints On July 26, 1982, before the United States had filed its Second Amended and Supplemental Complaint, GLC filed Third Party Complaints against Lilly, SRS, Lewis and GE, as persons who sent waste materials to the Ottati & Goss site, for contribution and/or indemnification should the plaintiffs prevail against GLC for either injunctive relief or damages regarding that site. In January, 1983, SRS, GE and Lilly filed counterclaims against GLC for indemnification and contribution. On March 9, 1983, GLC amended its Third Party Complaint to add a reference to CERCLA and a claim for negligent selection of a waste site operator. GE and Lewis responded with renewed claims for contribution and indemnification. On August 26, 1982, the Senter defendants filed Third-Party Complaints against Lilly, SRS, Lewis, and GE as persons who sent waste material to the O&G site, for contribution and/or indemnification should the plaintiffs prevail against them for either injunctive relief or damages regarding that site. In response, Lilly, Lewis, and GE filed counterclaims against the Senter defendants for indemnification and contribution. On August 27, 1982, GLC filed a Third Party Complaint against IMC, as prior owner of the KSD site, for contribution and joint and several liability should the plaintiffs prevail for either injunctive relief or damages regarding that site. On March 14, 1984, GLC and IMC stipulated to the dismissal of GLC’s Third Party Complaint and IMC’s proposed Counterclaim to that complaint. Crossclaims In their answers to the Second Amended and Supplemental Complaint of the United States and the State of New Hampshire, SRS, GE, Lewis and Quinn added cross-claims for contribution and indemnification against the Ottati & Goss defendants, the Senter defendants, the French defendants, and GLC. GLC filed answers to all these crossclaims, the Senter defendants answered only the crossclaim of Lewis, while the other parties filed no responses. On June 27, 1980, the Senter defendants moved to dismiss. The Court denied this motion on October 20, 1980. On December 2, 1980 the Court granted plaintiff's motion for a preliminary injunction that the ten original defendants should (1) cease storing or disposing of solid and hazardous waste at the O & G site, (2) formulate within thirty days a plan for removal of such waste from the site, (3) remove all such waste from the site within thirty days after approval of the plan by EPA and the State, and (4) cease activities at the site without prior approval, and (5) report weekly to EPA and the State concerning planning the removal activities. On January 9, 1981, the United States, the State of New Hampshire, and the ten original defendants signed an Agreement which, while deferring the issue of liability under trial, stated that if the Court were ultimately to find any of the defendants liable for conditions at the Ottati & Goss site and required to clean up the site, said defendants “shall pay, in accordance with the order of the Court, the reasonable costs incurred by the United States in performing the preliminary clean-up measures____” The Court approved this Agreement on January 15, 1981. On January 20,1981, summary judgment was granted in favor of defendant Sally E. Senter. In the fall of 1982, Lilly, GE, SRS and Lewis moved to dismiss the third-party complaints of GLC and the Senter defendants. The Court denied those motions on January 4, 1983. On March 25, 1983, IMC moved to dismiss or for summary judgment. On September 19, 1983, the Court granted IMC’s motion as to all allegations concerning the Ottati & Goss site and denied the motion as to all other allegations. On June 30, 1983, the Court ordered that the trial be bifurcated into liability and damages phases. The Court also extended the discovery deadline until October 1, 1983. On September 19, 1983, the Court extended the discovery deadline to November 1, 1983, and ordered that all pretrial materials be submitted by November 15, 1983. On September 20, 1983, IMC moved to add a third-party complaint for contribution against 94 corporations which, it alleged, contracted to have drums reconditioned at the facility on the KSD site. The Court denied this motion on October 3, 1983. History of the Ottati & Goss Site The chain of events which occasioned this prolonged, complex and intricate litigation seemed innocuous at the outset. Louis Ottati and his father-in-law Wellington Goss went into the drum reconditioning business which was operated from 1977 to 1979. The business corporate name was Ottati & Goss, Inc. Ottati had prior experience at Kingston Steel Drum from 1969 until 1976. Wellington Goss’ role was a passive one, but he did work on site. The site was leased from Bernard Senter and their equipment consisted of a front loader, mixing bin and a platform truck used as a dock. The processing method was to mix the waste with sawdust and lime. The front end loader was used to turn it over. After mixing, it was put in a dumpster to be transported from the site. Ottati submitted an application to patent this processing of waste method. When drums were emptied they were sold. Their first customer was General Electric. General Electric drums were picked up at its Chelsea, Massachusetts plant and brought on site. Most of them were in relatively poor condition. GLC which was contiguous to the site sent them mostly junk drums which could not be reconditioned. Ronald Boudreaux solicited most of Ottati’s customers such as Lilly Chemical, Solvents Recovery Service, Lewis Chemical, K.J. Quinn and Geochem. Ottati never had any direct contact with Quinn; he went to Massachusetts once to speak to Lilly’s shipper. He also had direct contact with Solvents Recovery Service and Lewis Chemical representatives. Processing commenced on or about April 1, 1978, slowed down in the winter and-ceased in May, 1979. On a good day 90 to 100 drums were processed. In May, 1979, he was negotiating to sell the business to Richard French. With the exception of Solvents Recovery Service none of his customers were notified. Ottati admitted that when he first started processing, half of the drums would be put on the platform truck, half on the ground and he observed spilling of sawdust waste which subsequently was picked up. French who has defaulted in this case started in business in June, 1979 and shortly thereafter had problems both financial and also from a business perspective. The State of New Hampshire wanted an indemnity bond from French as new state regulations were imminent as of July 1, 1979. Ottati & Goss and French both received cease and desist orders from the Town of Kingston on July 30, 1979. When leasing the land from Senter, Ottati agreed not to discharge any material on the ground. In August, 1979, Ottati was asked by the State of New Hampshire to go on site and cover the drums to prevent their leaking. Subsequently both Ottati & Goss were sued in a state court by Senter. The court ordered them to remove waste materials and contaminated soil. The operation started running behind in January, 1979 when they were taking in 250 drums a month. Drums were taken in until May, 1979. Ottati found that K.J. Quinn barrels were in excellent condition and IMC attempted to keep its premises clean. Some of the defendant generators entered into agreements or stipulations with the plaintiffs relative to the number of barrels or drums that they respectively had brought upon the Ottati & Goss site. Waste sent to the site by Quinn was sent in 55 gallon steel drums and 5 gallon steel pails. Approximately 64 drums or pails were deposited on site. Shipments were made between January 24, 1979 and April 18, 1979. There were three categories of industrial waste products generated by Defendant Quinn & Company, Inc. The categories were the solid and semi-solid residues created when solvents were used to rinse or wash equipment, off-specification products that were not sold to Defendant Quinn & Company, Inc.’s customers, and off-specification raw materials. Xylene, methyl ethyl ketone, ethyl acetate, acetone, methyl isobutyl ketone, tetrahydrofuran, toluene diisocyanate, and isopropanol were among the solvents used in the production of Quinn’s products. At all relevant times, the most commonly used solvent in the equipment washing or rinsing process was methyl ethyl ketone. At all relevant times the characteristics of the waste products of Defendant Quinn & Company, Inc. were flammability, toxicity, acidity, or a possible irritant to the skin and eyes. On or shortly before March 6, 1978 General Electric began shipping waste products in 55 gallon steel drums. Four hundred fifty-eight drums were shipped; the last shipment was made before June 2, 1978. General Electric’s Chelsea, Massachusetts facility which shipped waste materials to the Ottati & Goss site purchased acetone, butanol, isopropanol, methyl ethyl ketone, methyl isobutyl ketone, methylene chloride, toluene and xylene to use in the manufacture of its industrial coatings. It also purchased alkyd resin, epoxy resin and acrylic resin for use in the manufacturing of its industrial coatings. The same types of raw materials were used to manufacture paints and lacquers. Some of the waste products were highly flammable and some of the drums were in poor condition. Lilly Industrial Coatings, Inc., formerly Lilly Chemical Products Inc., made ten shipments of waste drums from May 24, 1978 to January 24, 1979 in 55 gallon steel drums. They made ten shipments of waste totalling 670 drums. Their wastes consisted of off-specification paint and spent solvents and were flammable. The waste was shipped in 55 gallon drums, some of which were 17 H drums. The constituents of Defendant Lilly Industrial Coatings, Inc.’s waste included toluene, acetone, methyl ethyl ketone, xylene and methyl isobutyl ketone. Lewis Chemical began shipping wastes during the month of February, 1979 in 55 gallon drums. Shipments were also made in June and July, 1979, which included sludges and liquids. Lewis Chemical agreed that it had sent at least 732 drums of waste to the site. The chemical constituents of the wastes sent to the Ottati & Goss site by Defendant Lewis Chemical Company included, among others, methylene chloride, 1-1-1 trichloroethane, trichloroethylene, methyl ethyl ketone, methyl isobutyl ketone and toluene. Solvents Recovery Service of New England, Inc. shipped waste to the site. This included in 1978 and 1979 solid materials received from customers, “still bottoms” or residues from its solvent reclamation process, and flammable liquid wastes. Waste products from Solvents Recovery Service sent to the Ottati & Goss site contained some or all of the following substances: acetone, butanol, chlorobenzene, cresol, cyclohexanol, hexanol, isopropanol, C-8 ketone, methyl ethyl ketone, methyl isobutyl ketone, methylene chloride, tetrachloroethylene, tetrahydrofuran, toluene, 1-1-1 trichloroethane, trichloroethylend and xylene. The first shipment was on April 26,1978. GLC entered into an agreement with Ottati & Goss to initially send 30 drums of waste monthly to the Ottati & Goss site. They began shipping these drums in March, 1978. These shipments were continued until some time in May, 1979. On some occasions more than 30 drums a month were sent onto the site. Some of the GLC drums were immediately processed and returned to GLC by Ottati & Goss. Drums sent to the Ottati & Goss site by GLC contained solvents which included oil, paints, resins, toluene, methyl ethyl ketone and lacquer thinner. Some of GLC’s drums contained liquid and sludge waste from its drum washing operation and other waste from its manufacturing process. Most of the GLC drums were in poor condition. Louis Ottati was told by the New Hampshire Bureau of Solid Waste Management that there were no permits for operations such as his. The State of New Hampshire was aware that Ottati & Goss was processing waste in March of 1978. During the periodic inspections by representatives of the State of New Hampshire, while Ottati & Goss was processing waste, the site was in a generally good condition. When evidence of any spillage was brought to Ottati & Goss’ attention, it was immediately taken care of. The Ottati & Goss site did not have any buildings on it. Customers sent waste in 55 gallon drums and 5 gallon pails. After the drums were emptied, they were stacked on their sides on the ground. SCA provided Ottati & Goss with dumpsters and would haul full ones away. Forty-five to ninety processed drums, more or less, would fill a dumpster. There is evidence that SCA from May, 1978 to May, 1979 removed 69 dumpsters from the Ottati & Goss site. During this time period at least 6900 drums of waste were sent to the Ottati & Goss site. Especially during the winter months, the drums started to backlog as the drum processing could not keep pace. There were spills of sawdust and waste mixture on site. Liquids were observed leaking from the dumpsters. The State of New Hampshire made a determination that the sawdust waste mixture could not be placed in a domestic landfill and Ottati & Goss were informed of this fact. Shortly after French came on the premises, conditions at the Ottati & Goss site as of July, 1979 exacerbated or deteriorated. During the summer and fall of 1979, there were drums on site without tops or bungs and many were leaking. In the fall of 1979, there were drums in the area under the Hampton and Exeter powerlines. Some of these drums contained lab packs. As the fall and winter of 1979 progressed into the winter of 1980, the site conditions became worse. Soil was discolored in the area of the mixing bin and discolored sawdust was also on the premises. Additionally, drums continued to leak as their condition continued to deteriorate. The site was unsecured and letters were sent to Ottati & Goss, French and Senter directing them to remove contaminated soil by August 5, 1979. This was never done. EPA’S DRUM REMOVAL ACTIVITIES After preliminary planning, EPA from December, 1980 to March, 1981 had 24 hour site security which included observations and reporting of leaks from drums. Drums were identified by numbering them and if necessary they were repacked. Some drums were covered with polyethylene. The drums were staged in four areas and inspected on a periodic basis. Site security and site maintenance was maintained from December, 1980 through July, 1982 except from March 18, 1982 to early May, 1982. In February, 1981 corrosivity, flammability, oxidation reduction, PCB, dioxin, and water reactivity tests were conducted on some of the drums in order to determine how to dispose of the waste. Filter fences were constructed by EPA in April, 1981 to contain leaks and prevent spillage. Absorbent booms were also placed upstream of the filter fences. Absorbent pads were used to absorb chemicals. Removal of waste drums commenced on or about May 21, 1982 ending on or about July 7, 1982. This was done by the utilization of a drum crushing pit. A liner of polyethylene varying from 6 to 8 millimeters of thickness was laid on the ground at the bottom of the pit. It was laid in strips and overlapped. On top of the polyethylene liner was a six to eight inch layer of a clay-sand mixture which was not impermeable. The crushing pit was located generally to the south and east of the Ottati & Goss formation, although the evidence on the issue was conflicting. Berms were made on the outside of the pit from soil procured on site. There was a break in the berm to allow a vehicle or vehicles to enter the crushing pit. Cut drains were constructed around the outside of the crushing pit. The purpose was to divert surface water run-off away from the crushing pit. After the crushing pit was constructed and the original soil was laid over the polyethylene liner no one checked or measured the amount of original soil remaining. This resulted in a marked decrease of covering soil on the liner which contributed to at least two rips in the polyethylene liner. The crushing pit was not monitored on a regular or continuous basis. As constructed, the pit was not environmentally safe for use in solidifying large amounts of liquids. Drums containing liquids were crushed in the crushing pit. The State of New Hampshire was never advised that drums containing liquids in varying amounts were being crushed in the crushing pit, although this was done on practically a daily basis. Conditions at the crushing pit were further exacerbated by rainy weather. A small percentage of the drums crushed in the crushing pit had liquids of varying amounts which spilled into the pit. The drum crushing pit did not have sufficient clayed soil or filler material; there were rips in the polyethylene liner during the processing and spillage of contaminated materials in the crushing pit. The contamination penetrated beneath the polyethylene liner and went into the groundwater. In early July, 1982 after all of the drums were crushed, the polyethylene liner, the silty clay material and solidification material on top of the liner, the berms around the pit, and some of the soil under the liner were removed from the site. After the crushing operation was completed, EPA removed drum covers and rings, polyethylene, and visibly contaminated soil from the staging areas. EPA did not remove all of the contaminated soil observed at the Ottati & Goss site because of budgeting problems and its belief that soil contamination extended to the water table. The Ottati & Goss site from the summer of 1979 until the drums were staged by EPA constituted a fire hazard. Although the site was a fire hazard, no fire actually occurred on the premises. Drums were sampled by EPA in April, 1980. Nine volatile organic compounds were found in those drums — chloroform, trichloroethylene, acetone, toluene, methyl ethyl ketone, methylene chloride, xylene, ethyl benzene and 1.1.1 trichchloroethane. These compounds fall into three categories, chlorinated hydrocarbons, aromatic hydrocarbons and ketones. Nonchlorinated solvents can produce carbon monoxide. Chlorinated hydrocarbons can cause asphyxiation. The primary routes of entry of chemical substances into the body are ingestion, inhalation, injection and absorption through the skin. Chloroform, a chlorinated hydrocarbon compound can cause injury to the central nervous system, and the liver, and can cause cardiac arrhythmia. Trichlorotheylene is a very common solvent. It can produce coma, liver and kidney damage, as well as ventricular fibrillation. Methylene chloride can cause central nervous system depression and cardiac irregularities. 1.1.1 trichloroethane also called methyl chloroform can produce anesthesia, depression of the brain function, cardiac irregularities and transient liver and kidney injury- Toluene can cause anesthesia, liver injury, potassium deficiency and ataxia. Methyl ethyl ketone is an eye and skin irritant. Acetone is an anesthesic agent, skin irritant and can increase one’s susceptibility to liver injury. The Ottati & Goss site constituted a substantial and imminent danger to public health. The soil under the original drum formation and the crushing pit are contaminated. There were more than one hundred drums on the Ottati & Goss site that contained PCB’s. Furthermore, 3,965 drums were analyzed as having contents which were hazardous. Leakage from the drums from June, 1979 into 1980 on the Ottati & Goss site contaminated the ground surface. Soils at the site are very permeable and the groundwater table is not too far from the surface as a result of which the groundwater was contaminated. Drums were deteriorated so that many were leaking at the time they were staged. The drums were staged in four different areas. The surface water on the site ran generally southerly to northerly. The History of the Kingston Steel Drum Corporation (“KSD”), International Mineral (“IMC”) and the Great Lakes Container Corporation (“GLC”) Site The KSD site has a fairly long chronological history. With its successive owners, it was used from approximately the mid-1950’s until GLC ceased operations in 1980. The initial owner operator was an individual named Daniel Conway (now deceased) who operated under the name Conway Barrel until 1967. In 1968 Leroy Boudreaux and Daniel Conway formed KSD. The facility expanded in size as did its operation. The facility was on 5.88 acres of land which consisted primarily of a building which housed a caustic wash operation for removing waste residue from closed head drums and other drum reconditioning machinery, and a nearby incinerator for removing waste residue from open head drums. An unlined lagoon for the disposal of waste residue also was located on the property. As the facility was expanded from approximately 1962 through 1974 the caustic lagoon was moved more towards the westerly area of the KSD site. KSD processed between 500 to 700 barrels daily in 1966 which increased to 1,200 barrels daily prior to IMC purchasing the facility in 1973. IMC was able to increase production to 2,000 barrels per day. IMC purchased the KSD property in May, 1973 and owned and operated it until August, 1976 when it was sold to GLC. IMC was aware that there might be environmental problems with the KSD site at the time that it was purchased but the problems could be solved. After the purchase IMC substantially expanded the operation. Drinking water wells on site had not been used since 1966 because testing of the groundwater indicated that it was contaminated. Holding or evaporating ponds and lagoons were recognized during the period 1973 through 1977 on NPDES (National Pollutant Discharge Elimination System) applications and discharges into such holding or evaporation lagoons and ponds did not require an NPDES permit, at least through 1977. It was generally agreed that the KSD site was not adequate for drum reconditioning as the land was low and drainage was a problem. IMC and subsequently GLC when they purchased from IMC leased land adjacent to the north and northwest of their property line. The land was used to store used drums before being reconditioned by IMC and later by GLC. Route 125 borders the KSD site on the east. South Brook runs along the south side of the property; North Brook’s direction is generally from west to east and it is located north of the KSD property. To the east of Route 125 is a swamp with 10 to 20 feet of peat. The peat acts as a sponge or as a carbon filter. Easterly of the swamp is Country Pond which is 255 acres in size and is used for recreational purposes. Additionally, there are numerous homes contiguous to Country Pond many of which are year round residences. IMC is not responsible for or liable for any releases into the environment or effects upon the health or environment from 1955 until May, 1973. IMC is not responsible for or liable for any releases into the environment or for any effects upon the public health or environment caused by the operation of the Ottati & Goss site, which commenced operations more than two years after IMC had departed from Kingston. The non-liability of the defendant IMC for the Ottati & Goss operation is confirmed by the consent decree of September 19, 1983 by which the plaintiff United States of America stipulated to non-liability. KSD, IMC and GLC had the same customers and handled the same chemicals and chemical product waste, including methyl ethyl ketone, toulene, benxene, solvents, paints, varnishes and different types of hydrocarbons and oils. The amount of wastewater generated increased as the production increased when IMC took over in 1973. Neither IMC nor KSD drilled any test holes around the perimeter of the property for the purpose of sampling and analyzing groundwater. The Lagoon The lagoon area was located west and north of the building and additions thereto located on the KSD site. Aerial photographs taken as long ago as 1962 show the area of the lagoon which grew in size or area until it was finally filled in during the year 1974 by IMC. The lagoon never had a lining. In early 1973 the lagoon was 100 feet by 50 feet and its depth was at least three feet. The oil layer on the caustic lagoon was estimated to be one and a half feet deep. During the latter part of 1973 IMC constructed a three to four foot embankment around the lagoon so it could hold more liquid. IMC filled in the lagoon in the spring of 1974. From 1967 to 1973 a tanker hauled water from the wash room closed head operation to the lagoon in a 500 gallon tanker once a day. Additionally for a period of time wastewater was pumped into the lagoon by means of a pipe. The amount of gallons of waste varied. At the beginning of the operation, it was in the vicinity of 1,000 gallons which later escalated to 3,000 gallons a day. At one point, shortly before the lagoon was filled in, 5,000 gallons per day was pumped into the lagoon. From 1966 to May 1973 paints, solvents, and oils from the caustic wash tank were dumped in the lagoon. The samples analyzed by Defendant IMC in 1973 show that the caustic wastewater discharged into the lagoon was heavily contaminated, and the surface water runoff from the plant was measurably contaminated. The lagoon sample indicated the presence of total dissolved solids at 31,570 parts per million, oil and grease at 28,300 parts per million, PCBs at 11 parts per million, phenols at 93 parts per million, and chloride at 660 parts per million. Waste from the caustic wash did contain dissolved metals. Drums were placed in and were seen floating in the lagoon. Materials would leak out of the lagoon when it rained and proceed northerly to a pond known as the Kingston swamp. Sometimes liquid was removed from the lagoon to prevent an overflow. The lagoon was not pumped out before it was covered over. It was pumped out to prevent any further groundwater damage and to eliminate a potential source of odors. The lagoon and the contamination from the Ottati & Goss site and the exacerbation of conditions at the Ottati & Goss site by the 1982 operation of the crushing pit by the EPA all contributed to the contamination of the groundwater. All are probably a source of contamination at this date. Well P-12 was drilled within the area of the former lagoon. There were organic contaminants to a depth of approximately 19 feet where well P-12 was drilled. At the 10 foot interval, there was a substantial amount of organic contaminants such as tetrachlorethylene and toluene. These tests were taken in September, 1983. An earlier drum rupture had minimal contribution as far as visible soil contamination was concerned regarding the drilling of well P-12. The lagoon was never used for any purpose of disposal of industrial waste by IMC after it was filled in during the spring of 1974. The Kingston Swamp Area The Kingston Swamp Area has also been alluded to as the Kingston Pond. Its location was generally between the lagoon and the access road along the Kingston and Senter property line. In 1966 the swamp area was larger than the lagoon and was a couple of feet deep. The swamp was filled in after the lagoon. Prior to 1967 the swamp area had been generally used as a dumping area and barrels, barrel parts and other debris had been buried in that area. Drums were placed in the swamp. At one time employees washed their hands there until the water became too oily. Liquid wastes were poured into a culvert and then ran into the swamp. Waste was also transported to the area by a backhoe. Some drums were buried, others emptied into the swamp. This practice stopped when IMC bought out Kingston Steel Drum. Drums and waste were buried there after GLC bought out IMC. The Incinerator During the Conway Barrel era and continuing on, an incinerator was used in the cleansing and reconditioning of barrels. The incinerator installed by Conway was replaced in 1966 by an incinerator from Northeastern Barrel. Prior to IMC purchasing the property a Jarvis incinerator was installed in the spring of 1972 and was in operation by January 1, 1973. The incinerator was used to burn the material or wastes in the drums. The Jarvis had the capacity to burn the waste, but in order to eschew an air pollution problem, the after-burner was remodeled by KSD and passed a stack test which was done by IMC in 1973. During the period prior to 1972, a concrete pad for an incinerator was in existence three to four feet below the 1984 ground level and a disposal tank built of concrete was also in use in connection with that earlier incinerator. The incinerator pad itself was connected to the Kingston Steel Drum area by underground pipe. All of the installations were put out of use in 1972 when Kingston Steel Drum extended its plant to the west; increased the grade, and built a new incinerator pad which was still in existence in 1984. A new incinerator stack was installed by Defendant IMC in February 1976 and was tested initially in March 1976 and subsequently in June 1976. The pit in front of the incinerator was three feet deep, four feet wide and four feet long. The incinerator was devised or constructed so that an endless belt took open head drums to the incinerator where any wastes within the drum were incinerated or burnt. The 1972 installation of the new incinerator included the building of a concrete pad for the incinerator and for the burner, including a concrete pad under and extending to either side of the conveyor belting by which the empty open-head drums were carried to the burner of the incinerator. Under that conveyor track, as part of the 1972 installation, a concrete trough was built of reinforced concrete to catch whatever debris or partially burned residue might fall from the burner or from the barrels. That trough was constructed so that a front-end loader or similar equipment could pick up the debris periodically, load it into a dumpster or other vehicle, after which it was deposited off-site. That concrete trough remained intact until it was removed during the IMC clean-up of the site in August of 1984. Most of the sludge would go through the incinerator, be burned, come out the back, dried and then shoveled out. A backhoe was used to remove residue from the bottom of the pit. The pit was completely cleaned out every month and a half to two months and partially cleaned out every other day. Sometimes a truck load of waste would accumulate in the pit before it was cleaned out. In September, 1978 piles of waste material covered the incinerator area, causing a considerable build-up of waste material up to a foot in depth. There was a concrete apron under the incinerator upon which waste materials had accumulated. The apron was not large enough to accommodate all the materials placed on it. In May, June and July of 1980 at the GLC incinerator drums, sludge and pools of liquid were observed and photographed spilling out over the ground. On March 11, 1980 sludge was observed spilled on the ground by the incinerator and conditions there were deplorable. Buried Waste and Drums Drums were buried in an area north of South Brook and other areas on the western most part of the Kingston Steel Drum site. Drums were also buried in the lagoon, swamp area and north of the swamp area or pond and the tree line on the southern line of the property. They were buried on site between the years 1974 and 1979, albeit without top IMC’s management’s knowledge. Drums were buried during Kingston Steel Drum’s, IMC’s and GLC’s ownership. Between 150 to 200 drums were buried on the GLC site between 1975 and 1977. Approximately 200 drums were placed in the lagoon and approximately the same number of drums in the swamp or pond area during GLC’s ownership. Once buried, drums were not removed from the ground. Drums were collected at the incinerator to be buried on the site. The drums were usually full and contained predrained material from drums processed at the incinerator, including liquids and solids. In addition, some of the drums contained material from the caustic wash operation. This practice stopped in 1977 as Ottati & Goss was disposing of the waste. Eastern Ditch Contiguous to the Westerly Side of Route 125 On the easterly side of the buildings at the KSD site is a ditch where water, liquids or other materials flow in a general southerly direction into South Brook. As late as 1979 caustic water was pumped from a holding tank into tank trucks by means of a plastic hose coming from the east side of the building. The tank trucks were originally owned by Kingston Steel Drum and were used to transport caustic water; they were old and most of them leaked. Caustic water would spill very often in the course of pumping it from the washroom into the tank trucks. The gravel was built up to prevent it running down to South Brook. There was a barrel underneath the pipe. Its purpose was to catch any overflow, but it at times overflowed onto the ground. A cement pad was poured at the eastern end of the building which had two catch basins underneath it for overflow in case of a spill. Spill water in 1973 from the IMC plant ran into the ditch on the easterly side of the building and subsequently into South Brook. Discharges from the caustic washroom, oil sheens, stained soil, pools of liquid and stressed vegetation in the ditch along the eastern side of the GLC building were observed in March and October of 1980, September and December of 1982. In December, 1982 discharges from the caustic washroom ran over a retaining structure made of telephone poles in the easterly ditch and then flowed into South Brook. Surface Runoff The subsurface geology and hydrogeology of the valley of the site correspond roughly to the surface topography, which is characterized by a gentle slope eastward toward Country Pond. Most of the surface water runoff would occur in the spring flowing from west to east from the site and towards Country Pond. Soil particle sizes on and around the sites vary widely and include clay, silt, sand, gravel, cobbles, and boulders. The soils are non-homogeneous and the particles are not well sorted. Runoff continued to flow down into the eastern ditch although efforts were made to fill in the area near Route 125. This was a problem from 1966 on. In 1973 at the request of the State of New Hampshire hay was placed in the ditch on the east side of the building to absorb the oil from the wastewater. This was done approximately two or three times in the summertime. The ditch had carried oil and oil spills into South Brook. In a sample taken from the ditch in 1973 by IMC it showed a high level of pH, phenols, oil and grease which indicated pollution of the water. Analysis of samples taken in 1976 by State personnel revealed that runoff on the site was highly contaminated and had contaminated South Brook. One sample showed contamination with phenols. Another sample was very alkaline and had a high chemical oxygen demand which indicates the presence of organic compounds. A further sample had an elevated pH, high concentrations of phenols and an elevated chemical oxygen demand. IMC personnel felt that it was impossible to dike areas to stop surface water runoff coming from the west end of the property towards the easterly end of the property to try to divert it. In March, 1980 standing water was observed on the GLC site. A swale ran from south of the GLC property line north toward North Brook and was located on the GLC site. The drainage swale was observed in March of 1980. The swale was observed to have IV2 feet of standing water and an oil sheen in March, 1980. There were also drums in the swale. The concentration of a chemical spilled on the surface of soil is reduced by the operation of volatilization, vaporization, photodegradation, and biodegradation, the most significant of which is volatilization. Volatilization, biodegradation, retardation, and photodegradation are all “reduction factors” with respect to the concentration of chemical compounds in the environment in that they all, in the ordinary course of natural events, reduce the concentrations of said compounds in the environment. Surface water runoff from the location of the original drum formation is north towards South Brook. The stream flow direction of North Brook and South Brook is west to east. On May 13, 1980 a photograph showed a wisp of sheen near the culvert, under the power line near Ottati & Goss. Another photograph on October 14, 1980 on the GLC property showed stained soil near the incinerator and contiguous areas. In September, 1979, May, 1980 and November, 1980 sediment and/or surface water samples of that portion of South Brook east of monitoring well P-1 and west of monitoring well P-3 were collected and analyzed. Volatile organic compounds were present in the sediment and surface water samples. In 1979 and 1980 the Ottati & Goss site was a source of contamination for South Brook. Drum Storage All drums received at the plant from 1966 through 1979 had some residue in them, although the amount of the residue varied with the customer and the substance in the drum. Between 1966 and 1979 the practice was to accept any drum which was empty enough that it could be cleaned by the operation. Drums with four to ten gallons of residue were regularly received by Kingston Steel Drum and Defendant IMC and Defendant GLC until 1979. As the inventory of barrels increased, the Senter leased property was used to store drums west and north of the access road. This was also done by IMC to rotate their inventory. Some drums were stored vertically and some horizontally. Neither IMC or GLC periodically went through the site to remove leaking drums or check the bottom layer of drums. Drums which were stood on end tended to deteriorate on the end that was placed against the ground, while drums on the bottom tier of the horizontally stacked pyramid deteriorated faster because of the exposure to water and snow. The principal method of storing drums was on their side. When there is liquid in the drums, they were not stored on their sides, they were left on trailers or brought to the incinerator to be processed. In April, 1976 barrels were stacked haphazardly, some standing upright and some on their sides, and others at an angle. Chemicals were leaking and had leaked from these barrels and had contaminated the ground surrounding the drum storage area. The contaminated runoff moved in an easterly direction to the drainage ditch to the east of the plant and subsequently into South Brook. The contaminated runoff originated from the entire site. In 1978 the operation of GLC’s barrel cleaning operation was very messy and there was considerable dumping of waste in the area. In September, 1978 contents of the drum storage area had leaked or had been leaking onto the ground. The ground was discolored and was thoroughly covered with waste material. The area of contamination covered almost the entire Great Lakes yard. State personnel inspections from March, 1978 through July, 1979 failed to disclose an improvement in the GLC operations which would have remedied contamination of the area. Stained soil, black sludge on the ground, pools of discolored water, and containers with materials leaking out of them were observed on the GLC site in 1980. Sawdust - Pile The process of mixing waste with sawdust began on the GLC property in late February, 1979. This continued until the plant closed. Defendant GLC began purchasing sawdust in February, 1979 from Ottati & Goss, Inc. The large accumulation of mixed waste and sawdust, which partially overlapped the location of the former caustic lagoon west of the Kingston Steel Drum plant, was a probable source of groundwater contamination as it exacerbated conditions as they were during the period of time that it was in operation. The sawdust pile was located near the site of the former lagoon. It was located about 200 feet west of the building where the lagoon used to be. The sawdust pile was not as large as the lagoon. The pile became as large as 25 feet wide, 40 to 50 feet long, and about 15 feet high. The GLC sawdust pile was observed in January and March, 1980 to be about 50 yards long by 20 yards wide by 4 yards high and to contain sludge mixed with sawdust. There was no polyethylene lining under the sawdust pile or over the top of the pile. GLC started the process of mixing waste with sawdust when the dumpster service was curtailed and they could not get rid of the waste. The incinerator sludge, the holding tank sludge and the caustic washwater were all mixed with sawdust in the same bin located northwest of the incinerator. Sawdust was also mixed with sludge which came from holding tanks in the washroom area. In March, 1980 samples were taken from the perimeter of the sawdust pile. The sawdust pile was saturated with water which washed volatile organics off the pile. The samples ranged from surface samples to samples taken from a depth of up to 6 inches. Whenever there was a heavy rainfall, the rain would soak through the sawdust pile and different color liquids would emanate from the pile. This would result from all the different chemicals that were mixed in with the sawdust. The GLC sawdust pile area is still an active source of contamination. GLC voluntarily removed 20 truckloads of contaminated sawdust from its site. GLC Cleanup At the request of GLC, P.E. LaMoreaux & Associates in November of 1982 performed a study to determine how best to clean up the GLC site. As a result of its study, LaMoreaux prepared a report dated January 13, 1983 recommending three primary elements: removal or isolation of point sources of contamination, groundwater reformation, and the establishment of a comprehensive and permanent monitoring program. By virtue of GLC’s agreement with IMC, GLC contributed to the efforts and shared in the expense with IMC in further clean-up of the GLC site. After GLC ceased operations in July of 1980, it conducted an extensive clean-up and removal of barrels in the fall of 1980. GLC removed thousands of drums from its site. IMC Cleanup During the trial of this case in the spring of 1984, International Minerals & Chemical Corporation retained Camp, Dresser & McKee to prepare the specifications and drawings to effect a clean-up of the surface and subsurface soils throughout the entire 5.88 acres of the Great Lakes Container Corporation site. The objective of the project was to remove contaminated soils and any other drums or foreign materials on the site. Clean-up operations proceeded from June 26, 1984 through November, 1984. The only materials remaining on-site after November, 1984 consisted of contaminated soils for which there was no EPA approved disposal facility available until the spring of 1985. Approximately 2.8 to 3 million dollars was expended by IMC in its cleanup of the KSD site. During the IMC clean-up of the GLC site, soil excavation in all areas proceeded to a depth of one foot below the deepest soil determined to be contaminated and requiring removal. Test trenching was also done to the south side of the building and along the southeast corner of the building. Part of the site was scarified, that is one foot over the entire area was scraped off. When the concrete apron or trough on the westerly side (input side) of the incinerator was removed, drum debris was found underneath it and a subterranean concrete tank was discovered just northerly of the apron. The soil on top of the tank in the vicinity of an opening into the tank was discolored. There was no evidence that the tank had leaked at anytime. In the process of digging up and removing the incinerator pad, a second concrete slab four feet below the surface was found extending east and north of the original incinerator pad, but also overlapping beneath the surface incinerator pad. There was no apparent connection between the two concrete slabs, nor was any functional relationship apparent. It appeared to be just another slab. The soils throughout this area and the area of the subsurface concrete slab were relatively clean. Any drum found to contain more than three inches of material in it was labeled “full” for purposes of the IMC site cleanup. During the routine trenching and excavation, 326 such drums were found on the Kingston Steel Drum site. Of those drums, only 17 were- found randomly located in the south trenching areas, and only 5 of those were possibly found in the previous location of the caustic wash lagoon. The vast majority of contaminated soil, buried debris, gross chemical and resin contamination, and buried drums containing material found on the Kingston Steel Drum site during the clean-up performed by International Minerals & Chemical Corporation was located in the area previously used and described as the Kingston Swamp, north and northwest of the incinerator constructed in 1972 and south of the access road leading from Route 125 to the power lines. All drums containing material were removed to and handled in the drum staging area which was enclosed with a cyclone fence and had a concrete pad which had been coated to prevent liquid from seeping into the concrete. The cache of staged, deliberately buried drums was uncovered on September 19-20, 1984 in the next northerly trench. The cache contained 61 drums, all of which were intact and in “pretty good condition”. None of the drums in the cache were leaking. The drums in the cache showed Department of Transportation (DOT) date stamps of 1973, 1974, 1975 and possibly 1976. Subsequently, another apparently staged burial of nine full drums was discovered in late November, 1984. Visually contaminated soils, upon excavation, were segregated and later hauled off-site. Also segregated were stained soils which were subsequently aerated. Four thousand eight hundred and thirteen (4,813) tons of contaminated soil, crushed drums, and metal debris were removed from the Kingston Steel Drum site. An additional, estimated four thousand (4,000) tons of soil was staged for excavation but remained on-site through December, 1984, because there was no EPA-approved facility available to receive it. It has now been removed. Approximately 4,500 gallons of bulk liquids were removed from the Kingston Steel Drum site as a result of the International Minerals & Chemical Corporation clean-up. As the 61 dr