these attacks do not deny the existence of the dispute.
These attacks are essentially attacks on the credibility of the former Solvent Savers employees' testimony. However, even if the Court were to accept all of Smith Corona's contentions,
they merely cast doubt on such testimony, they do not eliminate the dispute that exists between such testimony and Smith Corona's contention that Solvent Savers never removed hazardous materials from their plant. This is not "a mere possibility that a factual dispute may exist,"
or a "frivolous or immaterial" issue,
this is an actual and genuine dispute regarding a material factual issue.
Additionally, a former employee of Smith Corona has testified that Solvent Savers picked up full drums of waste material from Smith Corona.
Smith Corona attacks this testimony as coming from a disgruntled former employee who, in a previous questionnaire circulated by Smith Corona in 1987, denied any knowledge of Solvent Savers.
However, such attacks merely go to the weight of the evidence -- a determination not to be made by the Court on a motion for summary judgment. See Anderson, 477 U.S. at 254.
This Court is only to determine if a material factual issue in dispute exists, not to resolve such a dispute. Here, "the moving party [has] not foreclosed the possibility of the existence of certain facts from which 'it would be open to a jury . . . to infer from the circumstances'" that Solvent Savers had received waste solvents from GM. Anderson, 477 U.S. at 249 (quoting Adickes v S.H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)). Therefore, because such a dispute as to a material factual issue exists, Smith Corona's motion for summary judgment is denied.
THE UNITED STATES' MOTION
The United States moves for a partial summary judgment declaring the Big Three liable parties in this action pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607. As above, there is no dispute over whether these sites are "facilities;" whether a hazardous substance has been, or threatens to be, released; or whether response costs have been incurred. Additionally, while the Big Three complain that the United States has not specified which of the two sites each of them arranged to have their hazardous waste treated or disposed,
they do not contest the contention of the United States that they each generated waste which was received by Solvent Savers. As such, all of the requirements for liability under § 107(a) have been met.
The basis of the Big Three's objection to this motion is that the United States has failed to state if it is bringing this motion based on a claim of contribution under Section 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1), or a claim for cost recovery under § 107(a). If it is for contribution under § 113(f)(1), the Big Three claim that the motion is not yet ripe: they contend that until the United States has been found liable it is not entitled to contribution. This may be so. See Alloy Briquetting Corp. v. Niagara Vest, Inc., 756 F. Supp. 713, 718-19 (W.D.N.Y. 1991) (explaining United States v. Seymour Recycling, 686 F. Supp. 696, 700 (S.D.Ind. 1988)). However, the Court reads the United States' motion to be made under § 107(a), and as such there is no need to find that the United States is entitled to contribution from these parties under § 113(f)(1).
Further, because there are no material factual issues in dispute regarding the § 107(a) claim, a declaration that GE and Bristol are liable parties -- to the United States12 -- at the Lincklaen site, and that Stauffer is a liable party -- to the United States -- at the Novak Farm site, is granted.
THE BIG THREE'S CROSS-MOTION
In the event that they are found liable under the above motion, the Big Three move for partial summary judgment declaring the United States to be liable to them in contribution pursuant to § 113(f)(1). Movants have met their initial burden in showing that the United States is a liable party under § 107(a). However, the United States contends that there is a dispute regarding a genuine issue of material fact: i.e., whether the United States arranged for the disposal or treatment of hazardous substances at, or for the transportation of hazardous substances to, either of the two facilities involved. In essence the United States contends that there is a dispute over whether the solvents received by Solvent Savers from the United States Air Force (USAF) actually ended up at either Lincklaen or Novak Farm. The United States claims that the Big Three, as movants, bear the burden to show that a dispute does not exist over this issue.
Initially it should be noted that the United States had previously stated that hazardous waste generated at Griffis Air Force Base was sent to Solvent Savers site at Lincklaen.
The Big Three have also shown that at least two former employees of Solvent Savers have testified that USAF trucks delivered waste directly to the Lincklaen site.
As such, the Big Three have met their summary judgment burden by demonstrating the lack of a dispute regarding this issue.
In response the United States claims that this evidence is in direct conflict with the deposition testimony of James A. Smith that Solvent Savers removed solvents in its own vehicles.
It may be true that Solvent Savers removed solvents from Griffis in its own vehicles -- but that does not thereby contradict the testimony that the USAF delivered waste to Lincklaen in its own vehicles. In other words, there has been no showing that a genuine dispute over a material fact exists: both methods of waste removal could have occurred -- they are not mutually exclusive. The United States also cites the testimony of Bruce H. Mero that USAF vehicles are not used, and to his knowledge have not been used, to transport wastes off-site from Griffis -- however his period of personal knowledge does not span the years relevant to the present action (i.e. the mid to late 1960's and early 1970's).
Therefore, the United States has not shown the existence of a genuine dispute regarding the arrangement by the United States for the disposal or treatment of hazardous substances at, or for the transportation of hazardous substances to, the Lincklaen site. As a result, summary judgment, as to that site, is granted.
For the reasons stated above, Smith Corona's motion for summary judgment is denied; the United States' motion for partial summary judgment declaring GE and Bristol liable parties to the United States for the Lincklaen site, and Stauffer a liable party to the United States for the Novak Farm site, is granted; and the cross-motion of the Big Three for partial summary judgment declaring the United States to be liable to them in contribution for the Lincklaen site, pursuant to § 113(f)(1), is granted.
IT IS SO ORDERED.
CON. G. CHOLAKIS, JUDGE
UNITED STATES DISTRICT COURT
DATED: April 8, 1992
Albany, New York