BF Goodrich Co. v. Murtha

• Decision Date: 08 January 1991
• Docket Number: Civil No. H-87-52 (PCD).
• Citation: 754 F. Supp. 960
• Parties: B.F. GOODRICH COMPANY, et al. v. Harold MURTHA, et al. v. RIDSON CORPORATION, et al.
• Court: U.S. District Court — District of Connecticut

754 F. Supp. 960

B.F. GOODRICH COMPANY, et al. v. Harold MURTHA, et al. v. RIDSON CORPORATION, et al.

Civil No. H-87-52 (PCD).

United States District Court, D. Connecticut.

January 8, 1991.

Louis R. Pepe, David E. Rosengren, James W. Oliver, Bernard A. Pellegrino, Pepe & Hazard, Hartford, Conn., for B.F. Goodrich Co., et al.

Deming E. Sherman, Edwards & Angell, Providence, R.I., Susan H. Shumway, Shumway & Merle, Southport, Conn., for Uniroyal Chemical Co., Inc.

Richard B. Stewart, Asst. Atty. Gen., Environment and Natural Resources Div., H. Michael Semler, Sr. Atty., Environmental Enforcement Section, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., Stanley A. Twardy, U.S. Atty. D. Connecticut, Ruth McQuade, Asst. U.S. Atty., U.S. Attorney's Office, Bridgeport, Conn., Daniel Winograd, Asst. Regional Counsel, U.S. EPA-Region I, Boston, Mass., for the U.S.

William A. Butler, James W. Rubin, John M. Schultz, Dickstein, Shapiro & Morin, Washington, D.C., W. Wilson Keithline, Hartford, Conn., for Municipal Government Agency Collectors Group.

RULING ON MOTION FOR SUMMARY JUDGMENT

DORSEY, District Judge.

The consolidated actions pertain to the cleanup of two landfills, Beacon Heights Landfill ("Beacon Heights") in Beacon Falls, Connecticut, and Laurel Park Landfill ("Laurel Park") in Naugatuck, Connecticut, identified by the Environmental Protection Agency ("EPA") and placed on the National Priority List, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA" or "Superfund"), 42 U.S.C. § 9601, et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"). The consolidated actions involve hundreds of parties which have been organized into groups.¹ Pending is the Municipal/Government Agency Collectors Group's ("municipalities" or "municipal defendants") motion for summary judgment.

PROCEDURAL HISTORY

In 1987, four actions² were filed by EPA, the State of Connecticut Department of Environmental Protection ("DEP"), Uniroyal Chemical Company, Inc. ("Uniroyal"), and B.F. Goodrich Company and other members of its coalition ("B.F. Goodrich" or "Beacon Heights Coalition") against the alleged owners and/or operators of the sites, Harold Murtha, Terrence Murtha, Murtha Trucking, Inc., Murtha Enterprises, Inc., Murtha Waste Control Corporation, Rubber Avenue Enterprises, Inc., Beacon Heights, Inc. and Laurel Park, Inc. (collectively "Murtha") for cleanup costs. Murtha commenced third party actions against approximately two hundred parties, including the municipal defendants,³ seeking indemnification or contribution for cleanup costs, B.F. Goodrich Co. v. Murtha v. Ridson Corp., Civil No. N-87-52 (PCD), Third Party Complaint at ¶¶ 8-19, and statutory and common law relief. Id. at ¶¶ 20-23.

A consent decree proposed by Murtha and EPA, DEP, Beacon Heights Coalition, and Uniroyal to settle all claims against Murtha for $5,375,000 has lodged. Consent Decree, B.F. Goodrich Co. v. Murtha, Civil No. N-87-52 (PCD) (All Cases) at 10 (lodged Feb. 13, 1990).⁴ The decree is not yet court approved.

B.F. Goodrich and Uniroyal, the original plaintiffs against Murtha (hereinafter "plaintiffs"), have added claims against the municipal defendants.⁵ Allegedly, each municipality by contract, agreement or otherwise, arranged for disposal or treatment, or arranged with a transporter for disposal or treatment of hazardous substances at Laurel Park or Beacon Heights. Uniroyal Complaint at ¶¶ 56-57; B.F. Goodrich Complaint at ¶¶ 67, 78. Pursuant to Sections 107(a)(1) to 107(a)(4) of CERCLA, 42 U.S.C. §§ 9607(a)(1)-(a)(4) (1982 & Supp. V 1987), all municipalities are claimed to be jointly, severally and strictly liable for the sites' cleanup costs. Uniroyal Complaint at ¶ 74; and B.F. Goodrich Complaint at ¶ 79. The complaints further allege municipal liability, pursuant to Section 113, 42 U.S.C. § 9613, and federal common law, for contribution. Uniroyal Complaint at ¶¶ 74-77; B.F. Goodrich Complaint at ¶ 80.

The municipalities now move for summary judgment on all counts on the basis that, as a matter of law, the generation and collection of municipal solid waste ("MSW") does not subject them to liability under CERCLA.

DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate only if the record "shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987). The moving party bears the initial burden of demonstrating that no genuine issue of fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 2556, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting). Once that burden is met, the non-moving party must set forth specific facts demonstrating that there is a genuine issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of fact exists, the court must "resolve all ambiguities and draw all reasonable inferences against the moving party." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam).

Where the non-moving party bears the ultimate burden of proof on an issue, the moving party need only demonstrate the absence of evidence to support an essential element of the nonmoving party's claim. Brady v. Town of Colchester, 863 F.2d 205, 210-211 (2d Cir.1988) (citations omitted). Then, "the burden shifts to the non-moving party to come forward with persuasive evidence that his claim is not `implausible'." Id., citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Summary judgment should not be granted where a reasonable inference may be drawn from the record in the non-moving party's favor. Id. (citations omitted).

B. Liability Under CERCLA

CERCLA, enacted in 1980, granted the EPA broad authority to deal with hazardous substances, pollutants, and contaminants released into the environment. A Hazardous Substance Superfund was established, 26 U.S.C. § 9507, to enable the EPA to take response actions, pursuant to Section 104(a)(1), 42 U.S.C. § 9604(a)(1), to abate any such release. Superfund resources are used to address inactive hazardous sites by remedial actions (permanent remedy to prevent or minimize releases) or removal actions (short-term cleanup arrangements). The EPA may recover its response costs from responsible parties. Section 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A). Additionally, the EPA may, by suit or administrative order, compel potentially responsible parties ("PRPs") to take response action when a facility presents "an imminent and substantial endangerment to the public health or welfare." Section 106, 42 U.S.C. § 9606. Private parties who are held responsible may recover their response costs from other PRPs, § 113(f), 42 U.S.C. § 9613(f). Regan v. Cherry Corp., 706 F.Supp. 145, 149 (D.R. 1.1989); see also 40 C.F.R. § 300.71.

Four classes of persons may be liable for cleanup costs under Section 107(a). The first two classes include the present and some past owners and operators of facilities. 42 U.S.C. § 9607(a)(1) & (a)(2). The third class, allegedly including the municipalities, consists of persons who generated or arranged for disposal or treatment of hazardous substances. 42 U.S.C. § 9607(a)(3).⁶ The fourth class includes transporters of hazardous substances. 42 U.S.C. § 9607(a)(4).

Responsible parties are strictly liable under CERCLA. New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985), modified, 648 F.Supp. 255 (1986); United States v. Monsanto, 858 F.2d 160, 167 n. 11 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989); Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir.1988). When the environmental impact is indivisible, responsible parties are jointly and severally liable. O'Neil v. Picillo, 883 F.2d 176, 178-180 (1st Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990); United States v. R. W. Meyer, 889 F.2d 1497, 1506-08 (6th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1527, 108 L.Ed.2d 767 (1990). The reach of CERCLA is broad extending to the several links in the chain of waste disposition, origination through final placement, from which environmental pollution is generated. State of New York v. General Electric, 592 F.Supp. 291, 297 (N.D.N.Y. 1984). An exemption for municipalities would remove one link from the chain in derogation of Congress' broad imposition of responsibility. The following are the only defenses: release of hazardous substances caused by an act of God; an act of war; or certain acts or omissions of third parties other than those with whom the defendant has a contractual relationship. Section 107(b). See also Shore Realty, 759 F.2d at 1048; United States v. Hooker Chem. & Plastics Corp., 680 F.Supp. 546, 557-558 (W.D.N.Y.1988).

1. Elements of Liability under CERCLA

A prima facie case of liability under Section 107 of CERCLA requires that: (1) the site be a facility; (2) there be a release or threatened release of a "hazardous substance" from the site; (3) the release or threatened release caused the plaintiff to incur response costs; (4) the defendants are covered persons within Section 107(a); and (5) the responsive actions taken and costs incurred were consistent with the National Contingency Plan. Shore Realty, 759 F.2d at 1043; United States v. Northeastern Pharm. & Chem. Co., 579 F.Supp. 823, 843 (W.D.Mo.1984); Hooker Chem. & Plastics Corp., 680 F.Supp. at 548-49. The municipalities argue they are not liable under Section 107(a)(3) because MSW is not hazardous and thus not covered by Section 107(a)(3).

2. Designation of a Hazardous Substance Under CERCLA

A "hazardous substance" includes...