IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02244-CMA-MJW

UNITED STATES OF AMERICA,

Plaintiff(s),

v.

RICHARD WILMER and

ROCK WEISS,

Defendant(s).

RECOMMENDATION ON 

MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF UNITED STATES 

(DOCKET NO. 40)

MICHAEL J. WATANABE

United States Magistrate Judge

This case was referred to the undersigned pursuant to an Order Referring Case

issued by Judge Christine M. Arguello on September 1, 2011 (Docket No. 2), as

amended on July 2, 2012 (Docket No. 47).

In this civil action, Plaintiff United States of America (hereinafter “Plaintiff”) seeks

recovery of costs pursuant to Section 107(a) of the Comprehensive Environmental

Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9607(a), as amended by

the Superfund Amendments and Reauthorization Act of 1986 (“CERCLA”), and a

declaration of defendants’ liability for all future response costs to be incurred by the

United States in connection with the release or threatened release of hazardous

substances into the environment at and from the Cherokee Print Shop Wastes Site

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[hereinafter “Site”] located at 4411 Cherokee Street, Denver, Colorado. On February 23,

2012, a judgment by default was entered against defendant Richard Wilmer. (See

Docket No. 31). Accordingly, liability has already been determined as to Wilmer and his

ownership and operation of the Site. 

Now before the court for a report and recommendation is a Motion for Summary

Judgment [against co-defendant Weiss] by Plaintiff United States (Docket No. 40). 

Weiss filed a response (Docket No. 41), plaintiff filed a reply (Docket No. 42), and Weiss

filed a sur-reply (Docket No. 45). The court has carefully considered these motion

papers as well as the court’s file and applicable Federal Rules of Civil Procedure and

case law. The court now being fully informed, makes the following findings, conclusions

of law, and recommendation that the motion be denied because there is a genuine

dispute as to whether Weiss is an arranger for the disposal of materials containing

hazardous substances.

Rule 56(a) provides that summary judgment shall be granted “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party seeking summary

judgment bears the initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of the pleadings, depositions, interrogatories, and

admissions on file together with affidavits, if any, which it believes demonstrate the

absence of genuine issues for trial.” Robertson v. Board of County Comm’rs of the

County of Morgan, 78 F. Supp.2d 1142, 1146 (D. Colo. 1999) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986); Mares v. ConAgra Poultry Co., 971 F.2d 492, 494

(10th Cir. 1992)). “Once a properly supported summary judgment motion is made, the

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opposing party may not rest on the allegations contained in the complaint, but must

respond with specific facts showing the existence of a genuine factual issue to be tried. .

. . These facts may be shown ‘by any of the kinds of evidentiary materials listed in Rule

56(c), except the mere pleadings by themselves.’” Southway v. Central Bank of Nigeria,

149 F. Supp.2d 1268, 1273 (D. Colo. 2001), aff’d, 328 F.3d 1267 (10th Cir. 2003). 

However, “[i]n order to survive summary judgment, the content of the evidence that the

nonmoving party points to must be admissible. . . . The nonmoving party does not have

to produce evidence in a form that would be admissible at trial, but ‘”the content or

substance of the evidence must be admissible.”’ . . . Hearsay testimony that would be

inadmissible at trial cannot be used to defeat a motion for summary judgment because ‘a

third party’s description of a witness’ supposed testimony is “not suitable grist for the

summary judgment mill.”’” Adams v. American Guarantee & Liability Ins. Co., 233 F.3d

1242, 1246 (10th Cir. 2000). 

“Summary judgment is also appropriate when the court concludes that no

reasonable juror could find for the non-moving party based on the evidence presented in

the motion and response.” Southway, 149 F. Supp.2d at 1273. “The operative inquiry is

whether, based on all documents submitted, reasonable jurors could find by a

preponderance of the evidence that the plaintiff is entitled to a verdict. . . . Unsupported

allegations without ‘any significant probative evidence tending to support the complaint’

are insufficient . . . as are conclusory assertions that factual disputes exist.” Id.;

Robertson, 78 F. Supp.2d at 1146 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986); quoting White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995)). 

“Evidence presented must be based on more than ‘mere speculation, conjecture, or

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surmise’ to defeat a motion for summary judgment.” Southway, 149 F. Supp.2d at 1274. 

“Summary judgment should not enter if, viewing the evidence in a light most favorable to

the non-moving party and drawing all reasonable inferences in that party’s favor, a

reasonable jury could return a verdict for that party.” Id. at 1273.

Since defendant Weiss is not an attorney, his pleading and other papers

have been construed liberally and held to a less stringent standard than formal

pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). However, “it is [not]

the proper function of the district court to assume the role of advocate for the pro se

litigant.” Id.

In its motion, plaintiff asserts that section 107(a)(3) of CERCLA, 42 U.SC. §

9607(a)(3), imposes liability on a person who arranges with the current owner and

operator of a facility and the owner and operator of the facility at the time of

disposal of hazardous substances. Section 107(a)(3) provides in pertinent part:

(a) . . . Notwithstanding any other provision or rule of law, and subject

only to the defenses set forth in subsection (b) of this section -- 

. . .

(3) any person who by contract, agreement, or otherwise arranged for

disposal or treatment, or arranged with a transporter for transport for

disposal or treatment, of hazardous substances owned or possessed

by such person, by any other party or entity, at any facility . . . owned

or operated by another party or entity and containing such hazardous

substances . . . 

from which there is a release, or a threatened release which causes

the incurrence of response costs, of a hazardous substance, shall be

liable for 

(A) all costs of removal or remedial action incurred by the

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United States Government . . . not inconsistent with the

national contingency plan[.] . . .

42 U.S. C. § 9607(a). Thus, plaintiff asserts that a defendant is liable under this

section if the following elements are established: (1) the Site is a “facility” as defined

in § 101(9) of CERCLA, 42 U.S.C. § 9601(9); (2) there has been a release or

threatened release of a hazardous substance from the Site; (3) the release or

threatened release has caused the United States to incur response costs; and (4)

the defendant is a “covered person” under § 107(a) of CERCLA. (Docket No. 40 at

12-13) (citing United States v. Hardage, 761 F. Supp. 1501, 1508 (W.D. Okla.

1990)). Furthermore, according to plaintiff, among the class of potentially

responsible parties is any person who arranges for disposal of any materials

containing hazardous substances at a facility, as provided under § 107(a)(3). 

(Docket No. 40 at 13, citing id., United States v. Monsanto Co., 858 F.2d 160, 166-

71 (4th Cir. 1988); United States v. Stringfellow, 661 F. Supp. 1053, 1059 (C.D. Cal.

1987); United States v. Bliss, 667 F. Supp. 1298, 1304 (E.D. Mo. 1987); Violet v.

Picillo, 648 F. Supp. 1283, 1289 (D.R.I. 1986)).

Plaintiff asserts all of these elements were met, including the fourth, that

Weiss sent liquids containing hazardous substances to the Site, which were

released into the environment there. (Docket No. 40 at 16). Plaintiff asserts:

[o]n this motion, the Court need not reach any novel issues in

interpreting the scope of arranger liability. Defendant Weiss does not

contest that he sold a semi-trailer, at a discounted price because it

contained numerous containers of print shop liquids, to Defendant

Wilmer, who was the owner of the Site and who unloaded the

containers transported in the semi-trailer to on the Site. Undisputed

Fact Nos. 3, 4, 6, 7. Thus, there is no question about the fact that

during the period when Richard Wilmer owned the Site, containers of

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printing liquids left in the semi-trailer sold by Weiss, were unloaded at

the Site. Many of these containers were damaged and released or

threatened release of the contents into the environment at the Site. 

The contents contained “hazardous substances” under CERCLA, listed

at 40 CFR 302.4 (Table 302.4: List of Hazardous Substances),

including: unlisted hazardous wastes characteristic of corrosivity,

unlisted hazardous wastes characteristic of ignitability, lead and

carbon tetrachloride. See Undisputed Fact Nos. 19 and 20. Therefore,

the defendant is liable under Section 107(a)(3) of CERCLA, 42 U.S.C.

§ 9607(a)(3), and the United States is entitled to judgment as a matter

of law that the defendant is strictly and jointly and severally liable for all

federal response costs incurred in response to the release, or threat of

release, at the Site.

(Docket No. 40 at 16-17). Furthermore, plaintiff asserts in the introduction to its

motion that 

there is no genuine issue of material fact regarding Defendant Rock

Weiss’ liability, as an arranger for the disposal of materials containing

hazardous substances, as prescribed by section 107(a)(3) of

CERCLA, 42 U.S.C. § 9607(a)(3). Mr. Weiss’ Answer and the jointly

prepared Scheduling Order affirm sufficient facts to establish his

liability for all costs incurred and to be incurred in connection with the

Site. Furthermore, in recent testimony, Mr. Weiss admitted sending

liquids in numerous containers to the Site, in a semi-trailer that he

sold at a discounted price to Defendant Richard Wilmer. The

discounted price reflected Mr. Weiss’ willingness to pay for the

disposal of the liquids. As a result of this disposal, hazardous

substances were released and threatened to be released into the

environment at the Site.

(Docket No. 40 at 1-2) (footnote omitted) (emphasis in bold added). 

Plaintiff has submitted only one page of the transcript of Weiss’s bankruptcy

deposition in support of its contention that Weiss admitted sending liquids in

numerous containers to the Site. In that one transcript page, however, Weiss did

not make such an admission, and plaintiff has submitted no evidence that Weiss

sent the liquids to the Site. Instead, the transcript page merely shows that Weiss

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testified that he “sold a trailer to a schmuck, so I’m in trouble,” knew Wilmer for

“about five minutes,” entered into this transaction with Wilmer after Wilmer saw

Weiss’s ad on Craigslist that said “Trailer for sale, with or without contents” – which

he thought “was 900 without contents and 300 with – or 600 with” – less with

contents. (Docket No. 40-2 at 3). Weiss is then asked why he would take less with

contents, but the one transcript page does not contain the answer to that question. 

Plaintiff has submitted no evidentiary support for its inference regarding the

purported reason plaintiff sold the trailer and offered to do so at a reduced price if

the contents were included. 

In his Response, Weiss asserts that plaintiff’s arguments are “acts of poetic

license” that “are clearly an attempt by Plaintiff to frame [him] forthright and

innocently unassuming statements and admissions in such a way as to not only

strip them of his true meaning and intent in making them, but to impart meaning,

intent and culpability that serve the interests and agenda of Plaintiff in its efforts to

impose a crippling and totally unwarranted economic burden upon [him].” (Docket

No. 41 at 2). Weiss further argues:

In point of fact, as evidenced by documents filed with the Court

to date by Defendant Weiss, as well as testimony given during the

discovery phase of these proceedings, he has admitted no such

things. What he has admitted is that in 2006 he sold a trailer

containing inks and other materials used in screen and offset printing,

to a person previously unknown to him who not only indicated that he

had a background in and/or a strong interest in the printing trades, but

who also stated to Defendant Weiss that it was his intention to

transport and store said materials in full compliance with applicable

law, and to either use them himself in future lawful printing-related

endeavors or lawfully sell them and reap a financial reward on his

investment. At no time during the course of the discussion that took

place between Defendant Weiss and the buyer of the trailer prior to the

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sale, was there any discussion of or agreement pertaining to disposal

(which in this context Defendant Weiss understands to mean

‘discarding’ or ‘throwing away’) of the materials in question. Nor, has

there been one iota of independently verifiable evidence presented in

this case to date, to the effect that Defendant Weiss has at any time

prior or subsequent to the sale of the trailer, had knowledge or

expectation of any intent, design or plan on the part of the buyer, to

dispose of the materials that were purchased along with the trailer, buy

any means whatsoever ... lawful or unlawful.

Plaintiff also alleges in its Motion that the fact that the trailer in

question was sold at a discounted price ‘reflected Mr. Weiss’

willingness to pay for disposal of the liquids’. Not only is this a patently

and demonstrably false assumption on the part of Plaintiff, it flies in the

face of factual accounts of the sale of the trailer and its contents,

repeatedly provided to date by Defendant Weiss, in which he has

made it perfectly and plausibly clear that his motivation for discounting

the trailer was to effect a quick sale that would enable him to comply

with the pressing demands of the management of the storage facility in

which it was located and to whom he was substantially delinquent in

storage payments; and, to provide a meaningful financial or ‘use value’

incentive to the new owner of the trailer in consideration of him (the

new owner) doing the work that might be necessary to remove the

materials from the trailer and lawfully store them at a place of his

choosing, for future lawful use or sale.

(Docket No. 41 at 2-3). Weiss asserts that plaintiff’s assertion that he was an

“arranger” in connection with the unlawful disposal of hazardous materials at the

Site is a “grandiose distortion of the facts in this case,” claiming he did not “‘arrange’

for anything other than the perfectly lawful sale of a trailer and certain materials

used in the printing trades, to an interested buyer who stated his seemingly sincere

intention to take possession of, transport, store and use said materials in a lawful

fashion. Plaintiff has not presented any independently verifiable evidence

whatsoever that the transaction in question was not effected in the exact manner

and with the exact understandings repeatedly articulated to date by Defendant

Weiss.” (Docket No. 41 at 4). 

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Weiss also notes that the “environmental incident” plaintiff is seeking to hold

him financially responsible for occurred approximately 3.5 years after he sold the

trailer, and during that interim time, he had no contact with the buyer of the trailer

and did not exercise any knowledge or control over the buyer’s decisions or actions

where either the trailer or the hazardous materials were concerned. “Nonetheless,

Plaintiff is going after Defendant Weiss for more than $125,000 on the highly

imaginative theory that he directly and purposefully ‘arranged’ for what happened.”

Weiss asserts that in Burlington Northern & Santa Fe Ry. Co. v. United

States, 129 S. Ct. 1870 (2009), the Supreme Court, inter alia, narrowed the scope of

“arranger” liability by focusing on the intent of the party alleged to be liable. In

addition, plaintiff notes the ruling by the Third Circuit in Morton International, Inc.v.

A.E. Staley Manufacturing Co., 343 F.3d 669 (3rd Cir. 2003), that “the analysis of

‘arranger liability’ under Section 107(a)(3) should focus on these principal factors:

(1) ownership or possession of a material by the defendant; and (2) the defendant’s

knowledge that the processing of that material can or will result in the release of

hazardous waste; or (3) the defendant’s control over the process. A plaintiff is

required to demonstrate ownership or possession, but liability cannot be imposed

on that basis alone. A plaintiff is also required to demonstrate either knowledge or

control.”

In reply, plaintiff contends that Weiss merely offers “unsupported, self-serving

hearsay to dispute the facts of the transaction. . . He does not rely on or refer to

any records or witness statements when asserting that the buyer, Defendant

Richard Wilmer, had agreed to ‘transport and store said [contents] in full

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compliance with applicable law and to either use them himself in future lawful

printing-related endeavors or lawfully sell them and reap a financial reward on his

investment.’” (Docket No. 42 at 2). In addition, plaintiff asserts that Weiss’s

response fails to meet the procedural requirements of Rue 56, D.C.COLO.LCivR

56.1.C.1, and the court’s Civil Practice Standards at 4 requiring that factual disputes

must be supported by reference to record materials. Furthermore, plaintiff contends

that plaintiff has not refuted any of the government’s undisputed facts and has not

offered any record materials or admissible evidence to establish a disputed fact. 

Plaintiff argues that “[i]t is fair to conclude that there is no evidence to support the

defendant’s assertions. He does not suggest that there is or that he could adduce

any relevant, admissible material. Indeed, he has not asserted that further

discovery would, or could, reveal facts, for example, of his claim of a stated, mutual

understanding with Mr. Wilmer regarding the handling, storage and disposal of the

print shop liquids.”” (Docket No. 42 at 2).

This court, however, agrees with defendant Weiss that there is a genuine

dispute of material fact - one that is central to plaintiff’s claim against him but also is

a fundamental element of plaintiff’s motion for summary judgment - namely,

whether Weiss was “an arranger” in connection with the alleged unlawful disposal

of hazardous materials at the Site, including whether he had knowledge or control. 

Plaintiff’s conclusion that Weiss is an “arranger” is based upon its unsupported

assertion that Weiss sent materials to the Site and upon its inference regarding

Weiss’s intent for selling the trailer for less with contents included. Contrary to

plaintiff’s inference about the reason for selling the trailer for less with the contents

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included, Weiss asserts that he was in arrears with a storage facility, was being

subjected to intense pressure over his bill, and in order to comply with the urgent

demands of the facility’s management, he innocently and in good faith sold a trailer

filled with printing inks, offering a price incentive in consideration for completion of

the sale quickly and the buyer doing the work necessary to lawfully remove the inks

from the trailer and lawfully storing them until sold or used. Weiss has submitted a

copy of a Notice and Summons to Appear for Trial to show that he was a defendant

in Small Claims Court action brought by Alpine RV Storage for failure to pay for

storage of his trailer. (Weiss Ex. A, Docket No. 45 at 8). The relief sought was

removal of the trailer and payment of unpaid storage fees and late fees. 

“[O]n summary judgment, the inferences to be drawn from the underlying

facts . . . must be viewed in the light most favorable to the party opposing the

motion.” Colony Ins. Co. v. Burke, 698 F.3d 1222, 1237 (10th Cir. 2012) (quoting

Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007)). Viewing the

underlying facts in such a manner, this court concludes that plaintiff’s summary

judgment motion should be denied.

WHEREFORE, for the foregoing reasons, it is hereby

RECOMMENDED that the Motion for Summary Judgment by Plaintiff United

States (Docket No. 40) be DENIED.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),

the parties have fourteen (14) days after service of this recommendation to serve

and file specific written objections to the above recommendation with the District

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Judge assigned to the case. A party may respond to another party’s objections

within fourteen (14) days after being served with a copy. The District Judge need

not consider frivolous, conclusive, or general objections. A party’s failure to file

and serve such written, specific objections waives de novo review of the

recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985),

and also waives appellate review of both factual and legal questions. Makin v.

Colorado Dep’t of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,

91 F.3d 1411, 1412-13 (10th Cir. 1996).

Date: January 16, 2013 s/ Michael J. Watanabe 

Denver, Colorado Michael J. Watanabe

United States Magistrate Judge

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