US v. Wedzeb Enterprises, Inc.

• Citation: 809 F. Supp. 646
• Decision Date: 09 December 1992
• Docket Number: No. IP 90-1877C.,IP 90-1877C.
• Parties: UNITED STATES of America, Plaintiff, v. WEDZEB ENTERPRISES, INC.; William E. Daniels; Westinghouse Electric Corporation; General Electric Company; Doerr Electric Corporation; Sprague Electric Company; Crouse-Hinds Company; and Federal Signal Corporation, Defendants.
• Court: U.S. District Court — Southern District of Indiana

809 F. Supp. 646

UNITED STATES of America, Plaintiff, v. WEDZEB ENTERPRISES, INC.; William E. Daniels; Westinghouse Electric Corporation; General Electric Company; Doerr Electric Corporation; Sprague Electric Company; Crouse-Hinds Company; and Federal Signal Corporation, Defendants.

No. IP 90-1877C.

United States District Court, S.D. Indiana, Indianapolis Division.

December 9, 1992.

COPYRIGHT MATERIAL OMITTED

Harold Bickham, Asst. U.S. Atty., Indianapolis, IN, Richard Stewart, Thomas P. Carroll, Environmental Enforcement Section, U.S. Dept. of Justice, Washington, DC, Dorothy Attermeyer, Asst. Regional Counsel, U.S. E.P.A., Region V, Chicago, IL, for plaintiff.

Jan Feldman, Joseph A. Strubbe, Pope & John, Ltd., Chicago, IL, Joseph B. Carney, John R. Schaibley III, Baker & Daniels, Michael R. Fruehwald, Sherry W. McGrath, Barnes & Thornburg, Warren D. Krebs, Parr, Richey, Obremskey & Morton, Indianapolis, IN, Kent M. Frandsen, Lebanon, IN, for defendants.

ENTRY

BARKER, District Judge.

This matter arises under "CERCLA" (the Comprehensive Environmental Response, Compensation, and Liability Act), 42 U.S.C. § 9601 et seq. (hereinafter "CERCLA" or the "Act"), otherwise known as "Superfund" to those not conversant in the jargon of the nation's environmental laws, which is a scheme to clean up waste sites that imminently threaten the public's health and wellbeing. The incident which brings these parties before the Court is the release of PCBs into the environment more than a decade ago at a warehouse in Lebanon, Indiana.

This Entry disposes of five (5) pretrial motions. First, the United States seeks summary judgment as concerns the CERCLA liability of William E. Daniels and Wedzeb Enterprises, Inc. Second, General Electric Company, Doerr Electric Corporation, Sprague Electric Company, Crouse-Hinds Division of Cooper Industries, and Federal Signal Corporation (collectively the "Manufacturer Defendants"), move for summary judgment on the issue of their CERCLA liability. Third, these same defendants move the Court to strike Exhibits 6 and 7 of the declaration of Thomas P. Carroll, plaintiff's counsel. Fourth, the United States asks the Court to strike various defenses of Westinghouse, Inc., and finally, Westinghouse moves for summary judgment on the question of its CERCLA liability. For the reasons set forth below, the Government's motion for summary judgment is denied, the Manufacturer Defendants' motions are denied, the Government's motion to strike defenses of Westinghouse is granted in part, and the motion of Westinghouse for summary judgment is denied.

BACKGROUND

William E. Daniels ("Daniels") is the President of Wedzeb Enterprises, Inc. ("Wedzeb") (collectively the "Defendants"), a concern which he formed in 1974. Daniels has remained Wedzeb's President from the time of its incorporation until present, as well as its sole shareholder since 1975. Wedzeb distributes air conditioning, heating and refrigerating component parts. Beginning in the early 1980s, it amassed large quantities of electrical gear from the General Electric Company, Doerr Electric Corporation, Sprague Electric Company, Crouse-Hinds Division of Cooper Industries, Federal Signal Corporation, and Westinghouse. Much of the inventory that Wedzeb collected from these parties contained hazardous substances, including polychlorinated biphenyls ("PCBs"), dioxin, and chlorinated furans.

In February 1981, Daniels entered into a contract to purchase a warehouse on 312 Ballard Street in Lebanon, Indiana ("the site"). Starting on or about April 1, 1981, Daniels leased the warehouse to Wedzeb, which began to move electrical components into the warehouse, including tens of thousands of PCB-laden capacitors. In all, seventy-seven tons of material was stored at the Ballard Street property. Apparently, Daniels did not directly supervise storage activities at the site, as this was the responsibility of Wedzeb employees. See Daniels Deposition, April 29, 1992, at 58; James Cleary Deposition, January 30, 1992, at 33.

On May 2, 1981, a fire completely destroyed the warehouse, resulting in the release of hazardous substances into the environment. In January, 1984, EPA notified Wedzeb and Daniels of their liability for response costs under CERCLA, and requested that they pay the costs that the United States had incurred for its clean-up activities. In October, 1985, EPA issued an Administrative Order requiring Wedzeb to complete clean-up at the Site, though Wedzeb informed EPA three months later that it could not comply with the Administrative Order. See On-Scene Coordinator's Report, CERCLA Removal Project, at 5. In 1987, EPA conducted a removal action and incurred costs at the site to abate the immediate threat from contamination.

DISCUSSION

I. Summary Judgment Standards

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Proc. 56(c). In passing on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or determine the truth of the matter, but it is instead to decide whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The burden rests squarely on the party moving for summary judgment to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). If doubts remain as to the existence of a material fact, then those doubts should be resolved in favor of the nonmoving party and summary judgment denied. See Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12; Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir.1989).

While the initial burden rests squarely on the party moving for summary judgment, the nonmoving party responding to a properly made and supported summary judgment motion still must set forth facts showing that there is a genuine issue of material fact and that a reasonable jury could return a verdict in its favor. See Wolf, 870 F.2d at 1329; Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Denials contained in the pleadings or bald allegations that an issue of fact exists are insufficient to raise a factual issue. See Shacket v. Philko Aviation, Inc., 681 F.2d 506, 513 n. 8 (7th Cir.1982), rev'd on other grounds, 462 U.S. 406, 103 S.Ct. 2476, 76 L.Ed.2d 678 (1983). "The moving party is `entitled to a judgment as a matter of law' if the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.

II. The Government's Motion for Summary Judgment Against Wedzeb and Daniels

The United States asks the Court to enter summary judgment against Daniels and Wedzeb on the issue of their liability for the release of hazardous substances at the site. Under CERCLA, four classes of persons may be held liable for the release of hazardous substances into the environment:

(1) the owner and operator¹ of a vessel or a facility²,

(2) any person who at the time of disposal³ of any hazardous substance⁴ owned or operated any facility at which such hazardous substances were disposed of,

(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 or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release⁵, or a threatened release which causes the incurrence of response⁶ costs, of a hazardous substance....

42 U.S.C. § 9607 (footnotes added). Liability under CERCLA is without regard to fault. See U.S. v. Monsanto Co., 858 F.2d 160, 167 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989); Levin Metals Corp. v. Parr-Richmond Terminal Co., 799 F.2d 1312, 1316 (9th Cir.1986); New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985).

Liability under § 9607(a) may be avoided, however, if the defendant is able to invoke one of the defenses provided in § 9607(b). That section provides:

There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by —

(1) an act of God;

(2) an act of war;

(3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or

(4) any combination of the foregoing paragraphs.

42 U.S.C. §...