958 F.2d 1192 (2nd Cir. 1992), 375, B.F. Goodrich Co. v. Murtha

Docket Nº:375, Docket 91-7450.
Citation:958 F.2d 1192
Party Name:B.F. GOODRICH COMPANY; Upjohn Company; Dow Corning Corporation; Reynold Aluminum Building Products Company; Uniroyal Chemical Company, Inc. and Hoechst Celenese Corporation, Plaintiffs-Appellees, v. Harold MURTHA; A.C. Hampson Printing; A.W. Sandora & Sons; Action Refuse; Action Moving Co., Defendants, and Town of Beacon Falls; Town of Bethany; Con
Case Date:March 12, 1992
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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958 F.2d 1192 (2nd Cir. 1992)

B.F. GOODRICH COMPANY; Upjohn Company; Dow Corning

Corporation; Reynold Aluminum Building Products

Company; Uniroyal Chemical Company,

Inc. and Hoechst Celenese

Corporation,

Plaintiffs-Appellees,

v.

Harold MURTHA; A.C. Hampson Printing; A.W. Sandora & Sons;

Action Refuse; Action Moving Co., Defendants,

and

Town of Beacon Falls; Town of Bethany; Connecticut

Resources Recovery Authority; Town of Hamden; Town of

Killingworth; Town of Middlebury; City of Milford; City

of New Haven; Town of Orange; Town of Plymouth; Town of

Seymour; Town of Stratford; Town of Thomaston; City of

Waterbury; and Town of Westport, Defendants-Appellants.

UNIROYAL CHEMICAL CO., INC., Plaintiff,

v.

Harold MURTHA; Murtha Trucking, Inc.; Murtha Enterprises,

Inc., Defendants,

and

City of Ansonia; Town of Beacon Falls; Town of Bethany;

Town of Killingworth; Town of Middlebury; Borough of

Naugatuck; New Haven Housing Authority; Town of Orange;

Town of Plymouth; Town of Seymour; City of Shelton; City

of Stamford; Town of Stratford; Town of Thomaston; Town

of Watertown; Watertown Housing Authority; Town of

Westport and Town of Woodbury, Defendants-Appellants.

STATE OF CONNECTICUT, Plaintiff,

v.

Harold MURTHA; Murtha Trucking, Inc.; Murtha Enterprises,

Inc., Defendants.

UNITED STATES of America, Plaintiff,

v.

Harold MURTHA; Terrance Murtha; Murtha Trucking, Inc., Defendants.

UNITED STATES of America, Plaintiff,

v.

ARMSTRONG RUBBER COMPANY; Eastern Company; Primerica

Corporation, Defendants.

No. 375, Docket 91-7450.

United States Court of Appeals, Second Circuit

March 12, 1992

Argued Oct. 2, 1991.

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William A. Butler, Washington, D.C., (Patricia Ross McCubbin, Angus E. Crane, Dickstein, Shapiro & Morin, Washington, D.C., W. Wilson Keithline, Hartford, Conn., of counsel), for appellants Town of Beacon Falls, et al.

Louis R. Pepe, Hartford, Conn. (Pepe & Hazard, Hartford, Conn., Deming E. Sherman, Edwards & Angell, Providence, R.I., Susan H. Shumway, Shumway & Merle, Southport, Conn., for appellees B.F. Goodrich Co., et al.

Peter H. Lehner, Asst. Corp. Counsel, Environmental Law Div., New York City (Victor A. Kovner, Corp. Counsel, City of New York, Christopher A. Amato, Susan E. Amron, of counsel), for The City of New York as amicus curiae, in support of appellees.

Patrick W. Hanifin, Boston, Mass. (Stephen S. Ostrach, New England Legal Foundation, of counsel), filed a brief on behalf of The Connecticut Business and Industry Ass'n as amicus curiae.

Rena I. Steinzor, Washington, D.C. (David Kolker, Matthew F. Lintner, Spiegel & McDiarmid, of counsel), filed a brief on behalf of American Communities for Cleanup Equity as amicus curiae.

Paul G. Wallach, Washington, D.C. (Mark Atlas, Bennet L. Heart, Hale and Dorr, Washington, D.C., Jan S. Amundson,

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General Counsel, Nat. Ass'n of Mfrs., David F. Zoll, Vice President and General Counsel, Dell E. Perelman, Sr. Asst. Gen. Counsel, Chemical Mfrs. Ass'n, G. William Frick, Susan Schmedes, American Petroleum Institute, of counsel), filed a brief on behalf of Nat. Ass'n of Mfrs., Chemical Mfrs. Ass'n, and American Petroleum Institute as amici curiae.

Julie Harrison, New Haven, Conn. (Mark Mininberg, Mininberg & Associates, Frank B. Cochran, Cooper, Whitney, Cochran & Francois, of counsel), filed a brief on behalf of Joseph Kriz and Trowbridge House Apartments as amicus curiae.

Before CARDAMONE, WALKER and McLAUGHLIN, Circuit Judges.

CARDAMONE, Circuit Judge:

This appeal deals with the disposal of municipal solid waste that contains hazardous substances and as such is one piece of the national environmental problem. The problem is precipitated by the presence of over 200 municipal landfills, comprising about 20 percent of the more than 1,000 sites, that pose sufficient environmental concerns to warrant priority in federal cleanup efforts. See generally Interim Municipal Settlement Policy, 54 Fed.Reg. 51,071 (1989). Whether, when, and at what cost this environmental muddle will be resolved is unknown; but to maintain Congress' comprehensive statutory chain of responsibility it is essential that one step at a time be taken.

To take that step on this appeal we must carefully analyze the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Act), 42 U.S.C. § 9601, et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 (Superfund Amendments), Pub.L. No. 99-499, 100 Stat. 1613 et seq., and while remaining aware of the interaction of CERCLA with other federal environmental statutes--in this case primarily the Resource Conservation and Recovery Act (Resource and Recovery Act or RCRA), 42 U.S.C. § 6901, et seq.--determine what CERCLA defines as hazardous substances, and whether CERCLA imposes liability on a municipality which arranges for the disposal or treatment of municipal solid waste that contains primarily household waste.

BACKGROUND

At the center of this litigation lie the Beacon Heights and Laurel Park landfills, both located in Connecticut, designated as Superfund sites on a National Priority List by the Environmental Protection Agency (EPA). Four actions, now consolidated, were commenced separately in 1987 by the EPA, the State of Connecticut Department of Environmental Protection, Uniroyal Chemical Company, Inc., and a coalition of corporations led by B.F. Goodrich Company (collectively, plaintiffs). Plaintiffs sought reimbursement for past and future cleanup costs from the owners or operators of the landfills, including Terrence and Harold Murtha and their several corporations (collectively, Murtha).

In turn, Murtha commenced third-party actions seeking contribution or indemnification and other statutory and common law relief against approximately 200 third-party defendants. Among the third-party defendants are the Connecticut municipal appellants. They include the cities and/or towns of Ansonia, Beacon Falls, Bethany, Hamden, Killingworth, Middlebury, Milford, New Haven, Orange, Plymouth, Seymour, Shelton, Stamford, Stratford, Thomaston, Waterbury, Watertown, Westport, Woodbury, the borough of Naugatuck, the Housing Authorities of New Haven and Watertown, and the Connecticut Resources Recovery Authority.

In 1988 the district court permitted plaintiffs to amend their complaints and add the third-party defendants as defendants in the original action. Fundamental to both the original and the third-party actions are the allegations that the municipal defendants arranged for the disposal and/or treatment of hazardous substances at the two landfills and are therefore subject to liability under § 9607 of CERCLA for a share of past and future cleanup costs, now estimated to exceed $47.9 million.

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After serving answers denying liability, the municipal defendants as a group moved for summary judgment arguing that, as a matter of law, their generation and collection of municipal solid waste did not subject them to liability under CERCLA. The United States District Court for the District of Connecticut (Dorsey, J.) denied this motion in a judgment dated January 8, 1991. B.F. Goodrich Co. v. Murtha, 754 F.Supp. 960 (D.Conn.1991). It held that CERCLA does not contain any exemption for municipal waste, and that the exclusion for household solid waste found in the Resource and Recovery Act is not incorporated into the CERCLA definition of hazardous substances. It held further that a municipality disposing of hazardous substances at a site where there is a release or threatened release of such substances may be liable under § 9607 and that plaintiffs had raised genuine issues of material fact as to whether the municipal defendants' waste contained hazardous substances covered by CERCLA. The municipalities appeal from the judgment denying them summary judgment. We affirm.

DISCUSSION

The focus of our inquiry is the question of municipal liability under CERCLA for arranging for the disposal or treatment of municipal solid waste. Procedurally, we review a denial of appellants' motion for summary judgment; summary judgment may appropriately be granted only if the record demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Fed.R.Civ.P.Rule 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 2556, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting). Appellants do not seriously dispute the district court's finding that genuine issues of material fact exist, i.e., that plaintiffs raised a genuine issue, unrefuted by the municipalities, as to the existence of CERCLA-defined hazardous substances in the municipalities' solid waste. See 754 F.Supp. at 968-72. Rather the municipal defendants argue that CERCLA provides plaintiffs no grounds for relief and, as a result, the municipalities are entitled to judgment as a matter of law.

At the center of our discussion is the subject of municipal solid waste which, while possibly containing material from commercial and industrial sources, is primarily composed of household waste. See 54 Fed.Reg. at 51,075. Despite the tremendous volume of household waste, surveys generally reveal that it contains very low concentrations--less than 1 percent by weight--of substances the EPA considers hazardous to the environment or to public health. See Ferrey, The Toxic Time Bomb: Municipal Liability for the Cleanup of Hazardous Waste, 57 Geo.Wash.L.Rev. 197, 200-10 (1988). Yet, even though household waste has a low concentration of hazardous substances, when the EPA determines that a cleanup under CERCLA is warranted the costs of cleanup at municipal landfills...

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