U.S. v. Union Corp.
| Decision Date | 20 June 2003 |
| Docket Number | No. CIV.A.9-01589.,CIV.A.9-01589. |
| Citation | 277 F.Supp.2d 478 |
| Parties | UNITED STATES of America v. UNION CORP.; Metal Bank of America; Irvin G. Schorsch, Jr.; and John B. Schorsch v. Consolidated Edison Co. of New York; Public Service Electric & Gas Co. of New Jersey; and Monsanto Co. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
In 1980, the United States ("Plaintiff" or "the Government") sued individual defendants Irvin G. Schorsch, Jr. and John B. Schorsch, and corporate defendants Union Corporation and Metal Bank of America, Inc. (collectively "the Metal Bank defendants" or "third-party plaintiffs"), seeking reimbursement for past and future response costs to investigate the Cottman Avenue Superfund site ("the Site") in Philadelphia and for enforcement pursuant to section 107 of the Comprehensive Environmental, Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607. The Government also sought injunctive relief and remediation of the site pursuant to section 7003 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973. The defendants filed a third-party complaint against Consolidated Edison Company ("ConEd"), Public Service Electric & Gas Company of New Jersey ("PSE & G") and against the Monsanto Chemical Company ("Monsanto"). Monsanto's subsequent motion to dismiss was not ruled upon pursuant to the court's order of March 30, 1981 which stayed all deadlines in the third-party action. This matter was placed in suspense in 1983 pending attempted remediation of the Site but was restored to the court's active trial docket in 1998, upon the Government's claim that remediation had failed or had not addressed all contamination concerns.
On September 22, 1999, the Metal Bank defendants filed a Second Amended Third-Party Complaint against ConEd, PSE & G and Monsanto. In November 1999, the City of Philadelphia ("the City") was permitted to intervene as plaintiff on the condition that the United States file an amended complaint. On March 1, 2000 defendants filed an Amended and Restated Counterclaim seeking, inter alia, contribution from the City toward response costs pursuant to CERCLA and the Pennsylvania Uniform Contribution Among Tortfeasors Act ("PUCTA"), 42 Pa. Cons.Stat. Ann. § 8321 et seq. That filing was stricken by the court's order of June 13, 2000.
On May 4, 2000, a number of utility companies ("the utilities") sought leave to intervene as third-party defendants and on July 26, 2000, filed their claims against the Metal Bank defendants in a pleading styled as a third-party complaint. The Metal Bank defendants answered that pleading and on December 6, 2000, filed another third-party complaint ("Third Amended Third-Party Complaint") asserting claims against the utilities and against ConEd, PSE & G, Monsanto and the City.
On June 11, 2002, prior to trial of Phase I issues, defendants filed a motion for summary judgment seeking, inter alia, that 1) the City be stricken as intervenor, and 2) defendants' counterclaims against the City be deemed a third party complaint. On June 19, 2002, the City moved to withdraw as plaintiff intervenor. On July 3, 2002 the court denied defendants' motion and granted the City's motion. However, because of defendants' December 2000 pleading, the City remained a third-party defendant.
Following extensive discovery and pretrial proceedings, trial was phased as follows: Phase One would determine whether defendants were liable and whether response costs were incurred by the Government; Phase Two would determine whether the Government's response costs, if any, were recoverable and reasonable, as well as determine the scope of any further remedial action; and Phase Three would determine the liability, if any, of any third-party defendant.
Following trial in Phase 1, this court resolved Phase One issues in favor of the Government in an opinion issued January 21, 2003. See U.S. v. Union Corp., 259 F.Supp.2d 356 (E.D.Pa.2003). Monsanto and the City requested and were granted leave to file the present motions for summary judgment. For the reasons that follow, the City's motion is denied and Monsanto's motion is granted.
Consistent with the review standards applicable to a motion for summary judgment, Fed.R.Civ.P. 56, the alleged facts, viewed in the light most favorable to the non-moving party, follow. The factual background of the underlying case is outlined in detail in U.S. v. Union Corp., 259 F.Supp.2d 356 (E.D.Pa.2003). The court only relates those facts necessary for an understanding of the instant motions.
The Metal Bank Superfund Site located at 7301 Milnor Street near Cottman Avenue in Philadelphia is contaminated with PCBs and other hazardous substances traceable, at least in part, to Metal Bank's transformer reclamation operations on the Site. The City utilizes a combined sewer system in the neighborhood of the Site and has a municipal combined stormwater/sanitary sewer outfall ("CSO") at the foot of Cottman Avenue.
In the late 1800s through the 1940s, engineers designed combined sewers (sewers which carry sanitary sewage and storm runoff in a single pipe) to convey sewage, horse manure, street and rooftop runoff, and garbage from city streets to the nearest receiving body of water. As of the early 1950s, most sewer systems were constructed as separate systems (sanitary sewage in one pipe; storm water sewage conveyed in another pipe). However, in the late 1950s, treating wastewater became the municipal standard. Interceptors were built to transport all wastewater (from either combined or separate systems) to treatment plants. Nevertheless, during heavy storms, the total volume of the wastewater could become too large for the interceptors to handle. To protect treatment plants and avoid sewer back-ups into homes, businesses, and streets, the overflows were discharged into bodies of water like the Delaware River. The City's CSO is the first overflow for the sewage interceptor/ collector serving northeast Philadelphia and empties into the north-eastern corner of the embayment adjacent to the Metal Bank property during periods of heavy rainfall. The Metal Bank defendants assert that the City has thereby discharged waste containing hazardous materials into the mudflat area from the CSO.
Prior to implementation of PCB ban regulations in 1977 pursuant to the Toxic Substance Control Act ("TSCA"), Monsanto was the sole manufacturer and seller of PCBs in the United States. PCBs were utilized for various industrial purposes, including as a constituent of insulating fluid used in electrical transformers and capacitors. Although defendants did not receive PCBs or PCB-laden materials directly from Monsanto, some of the transformers and capacitors purchased by the utility companies and ultimately processed at the Site contained PCBs.
A summary judgment motion should be granted where it is clear 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." FED. R. CIV. P. 56(c).
The City argues that it is entitled to summary judgment because 1) it is not a responsible party within the meaning of CERCLA; 2) there was no release or threatened release at the Site of a hazardous substance from a City of Philadelphia facility; 3) no response costs incurred by the United States can be attributed to the City; 4) the City cannot be held liable for contribution pursuant to the Pennsylvania Uniform Contribution Among Joint Tortfeasors Act, 42 Pa. Cons.Stat. Ann. §§ 8321-27 ("PUCTA") as it is not liable under CERCLA and is therefore not a joint tortfeasor; and 5) the City is immune from liability under the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S. § 541 et seq. ("PSTCA").
In opposition, defendants argue that 1) this court's case management order precluded discovery from third party defendants regarding facts specific to third party claims and, consequently, the record is incomplete; 2) the City is an owner/operator of the CSO and of the beach/ mudflat area which comprises a portion of the superfund site; 3) the CSO is a facility from which releases have occurred and threaten to occur; 4) the City is liable for contribution under RCRA; and, 5) the City is liable for contribution under a state law public nuisance theory.
The RCRA and public nuisance claims were not pled in the third-party complaint. They were advanced in the defendants' response to the City's summary judgment motion. The City's reply brief did not address them. Because they were not claims pled, the court will not address them.
CERCLA was enacted in 1980 in response to serious environmental and health risks resulting from the existence of inactive hazardous waste sites. U.S. v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998); H.R.Rep. No. 1016(I), 96th Cong., 2d Sess. 1 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6119. It encourages the United States to use the "Hazardous Substance Superfund" to finance cleanup efforts. See 42 U.S.C. §§ 9601(11), 9604; 26 U.S.C. § 9507. The fund is replenished by recovery civil actions against responsible parties under § 107 of the Act.
In 1986, Congress passed the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. §§ 9601-9675, amending CERCLA and adding, inter alia, CERCLA § 113(f), which explicitly provides that
Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title,...
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Editor and Contributor Biographies
...per se exempt from CERCLA’s deinition of “facilities,” subject to liability for contribution costs ( United States v. Union Corp. , 277 F. Supp. 2d 478 (E.D. Pa. 2003)). His environment and natural resources blog is available at itzchakkornfeld.com. Clement Yow Mulalap , a native of the isl......