United States v. Wade

• Citation: 577 F. Supp. 1326
• Decision Date: 20 December 1983
• Docket Number: Civ. A. No. 79-1426.
• Parties: UNITED STATES of America v. Melvin R. WADE, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

577 F. Supp. 1326

UNITED STATES of America v. Melvin R. WADE, et al.

Civ. A. No. 79-1426.

United States District Court, E.D. Pennsylvania.

December 20, 1983.

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Kevin Gaynor (argued), Environmental Enforcement Section, Land and Natural Resources Div., Washington, D.C., Joseph J.C. Donovan, EPA, Region III, Philadelphia, Pa., Kermit Rader, EPA, Washington, D.C., for the U.S.

Patrick T. Ryan (argued), Cynthia J. Giles (argued), T. Andrew Culbert, Drinker, Biddle & Reath, Philadelphia, Pa., for Congoleum Corp.

Bertram A. Stone, Stone, Pogrund & Korey, Chicago, Ill., Austin J. McGreal, P.C., McGill & McGreal, P.C., Philadelphia, Pa., for Apollo Metals, Inc.

Henry S. Ruth, Jr., Scott D. Patterson (argued), Saul, Ewing, Remick & Saul, Philadelphia, Pa., Robert A. McTamaney, Carter, Ledyard & Milburn, New York City, for Sandvik, Inc.

Calvin P. Sawyier, Edward J. Wendrow, Sidney Margolis, Winston & Strawn, Chicago, Ill., James D. Wilder, Karen R. Pushaw, LaBrum & Doak, Philadelphia, Pa., for Gould, Inc.

Frank J. Marcone, Media, Pa., for Melvin R. Wade.

Larry H. Slass, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., Trustee in Bankruptcy ABM Disposal Co., Inc.

William J. Winning, Burke Christensen, Curran, Winning & Fioravanti, P.C., Media, Pa., for Ellis Barnhouse.

Franklin P. Tyson, Conshohocken, Pa., Denis L. Brenan (argued), Deborah A. Lefco, Morgan, Lewis & Bockius, Philadelphia, Pa., for J.L. Clark Mfg. Co. and NL Industries, Inc.

David T. Modi, Wilmington, Del., David Richman, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for E.I. duPont deNemours.

John I. McMahon, King of Prussia, Pa., for East Falls Corp.

Albert L. Bricklin, Bennett, Bricklin, Saltzburg & Fullem, Philadelphia, Pa., for Grow Group, Inc. (B.W. Coatings).

Thomas R. Harrington, Kelly, Harrington, McLaughlin & Foster, Philadelphia, Pa., for The Budd Co.

Anthony P. Tinari, Marshall, Dennehey, Warner, Coleman & Goggin, Norristown, Pa., Robert A. Swift, Kohn, Savett, Marion, & Graf, P.C., Philadelphia, Pa., for Diversified Printing.

Kathleen U. Poling, Moraga, Cal., James L. McKenna, Deasey, Scanlan & Bender, Ltd., Philadelphia, Pa., for Electro Coating Division, Electro Coatings, Inc.

William G. Cilingin, Naulty, Scaricamazza & McDevitt, Philadelphia, Pa., for Jordan Chemical Co.

David C. Toomey, Carolyn Mills, Duane, Morris & Hecksher, Philadelphia, Pa., for Texaco, Inc. Donald K. Joseph, Wolf, Block, Schorr & Solis-Cohen, John M. Alivernini, Philadelphia, Pa., for Wyeth Laboratories, Inc.

William Sierks, Asst. Counsel, Com. of Pa., Dept. of Environmental Resources, Harrisburg, Pa., Kenneth Gelburd, Dept. of Environmental Resources Litigation, Asst. Counsel, Philadelphia, Pa., for Com. of Pa., Dept. of Environmental Resources.

MEMORANDUM

NEWCOMER, District Judge.

In response to the well-publicized toxic waste problem Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act of 1980, commonly known as CERCLA or the Superfund Act. 42 U.S.C. § 9601 et seq. The Act's name is derived from its establishment of a $1.6 billion "hazardous substance response trust fund" to finance government clean-up of abandoned hazardous chemical waste dump sites. § 9631. In addition, the Act authorizes the government to undertake emergency clean-up measures when it determines that an abandoned site presents "an imminent and substantial danger to public health" and to seek emergency injunctive relief to abate the danger or threat. §§ 9604 and 9606. Finally, the government is authorized to recover certain costs incurred in clean-up and containment measures from designated classes of persons. § 9607.

This is a civil action brought by the United States against several parties allegedly responsible for the creation of a hazardous waste dump in Chester, Pennsylvania. The government seeks injunctive relief against Melvin R. Wade, the owner of the dump site, ABM Disposal Service, the company which transported the hazardous substances to the site, and Ellis Barnhouse and Franklin P. Tyson, the owners of ABM during the time period at issue ("non-generator defendants"). The government also seeks reimbursement of the costs incurred and to be incurred in cleaning up the site from the non-generator defendants as well as from Apollo Metals, Inc., Congoleum Corporation, Gould, Inc. and Sandvik, Inc. ("generator defendants").

The claims for injunctive relief are brought pursuant to § 7003 of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6973, and § 106 of CERCLA, 42 U.S.C. § 9606. The claims for monetary relief are based on § 107(a) of CERCLA, 42 U.S.C. § 9607(a), as well as a common law theory of restitution. Presently before the Court are the government's motions for partial summary judgment on the issue of joint and several liability under § 107(a) against each of the defendants. In addition, each of the generator defendants has moved for summary judgment.

For reasons discussed below, I will grant the generator defendants' motions for summary judgment on counts four and five to the extent those counts are based on a common law theory of restitution. Otherwise, all motions by and against the generator defendants will be denied. Summary judgment as to liability under § 107(a) will be entered against defendants Tyson, Wade and ABM, but I reserve judgment on whether joint and several liability will be imposed in this case. The government's motion for summary judgment against defendant Barnhouse will be denied. I trust that this opinion will provide guidance to the parties in their preparation for trial.

The generator defendants have filed a joint motion for summary judgment addressing issues common to all as well as individual motions addressing facts unique to each generator's case. The generator defendants first move for summary judgment on counts four and five which seek restitution for amounts expended or to be expended in investigating and abating conditions which present an endangerment to the extent recovery of these sums is based on a federal common law theory. The government opposition to this portion of the motion is based on its argument that § 7003 of RCRA, 42 U.S.C. § 6973(a), provides the government with an implied cause of action in restitution. Given the basis for my earlier dismissal of plaintiff's § 7003 claim against this group of defendants I must grant this portion of the generator defendants' motion for summary judgment. See United States v. Wade, 546 F.Supp. 785 (E.D.Pa.1982). Indeed, the United States concedes my prior ruling is dispositive of this issue.

The generator defendants' motions for summary judgment on the CERCLA claims generally advance two arguments.¹ First, they argue that the government has not and cannot establish the requisite causal relationship between their wastes and the costs incurred by the government in cleaning up the site. Second, assuming the government can establish liability under the Act, the generator defendants argue that it has recovered all costs to which it could possibly be entitled. Both arguments raise difficult questions of statutory interpretation which require some background discussion.

The Superfund legislation presents a relatively complex solution to a complex problem. It leaves much to be desired from a syntactical standpoint, perhaps a reflection of the hasty compromises which were reached as the bill was pushed through Congress just before the close of its 96th Session. Any attempt to divine the legislative intent behind many of its provisions will inevitably involve a resort to the Act's legislative history. Unfortunately, the legislative history is unusually riddled by selfserving and contradictory statements. Few courts have addressed the Act at all, and many of the issues raised in this case have not been litigated previously. What is clear, however, is that the Act is intended to facilitate the prompt clean-up of hazardous waste dump sites and when possible to place the ultimate financial burden upon those responsible for the danger created by such sites. With these thoughts in mind I turn to the generator defendants' causation argument.

A. THE CAUSATION ARGUMENT

In a nutshell, the generator defendants' causation argument is as follows. To establish liability under the Act the government must prove a link, or more specifically a causal nexus, between costs incurred in clean-up and a given generator's waste. The argument is based on traditional tort concepts of proximate causation. The generator defendants first argue that the government has no admissible evidence that their wastes were in fact disposed of at the Wade site. The government agrees that actual dumping of a defendant's waste at the Wade site is an element of its case but urges that its evidence on this issue is not only admissible but also dispositive.

The controversy centers around the admissibility of the so-called ABM grid and the sufficiency of the affidavit of Frank Tyson, one of the owners of ABM Disposal Company prior to its bankruptcy. The generator defendants correctly state in their briefs that evidence offered to support or oppose a summary judgment motion must be admissible and if in affidavit form, it must be non-conclusory and based on the personal knowledge of the affiant. Carey v. Beans, 500 F.Supp. 580, 583 (E.D.Pa. 1980), aff'd, 659 F.2d 1065 (3d Cir.1981).

The generator defendants argue that Mr. Tyson lacks the personal knowledge necessary to state that their wastes were dumped at the Wade site. Clearly the Tyson affidavit is not a model affidavit. Nevertheless, it states that Tyson, as president of ABM, directed the disposal of wastes by his drivers and supervised the day-to-day operations of the company from September, 1976 until January 1, 1979. Prior to that time he was a salesman for the company. This support is adequate to survive defendants' motions for summary judgment;...