solutions at concentrations even near 50 ppm.
In addition to the Dexsil test, samples from 5% of incoming oil loads were sent to an independent certified laboratory, which examined the materials using a much more accurate technique known as gas chromatography ("GC"). Finally, the EPA required plaintiff to send a sample of its finished oil product each week to the same independent laboratory for GC testing.
On April 8, 1994, a sample from plaintiff's finished oil product was sent to an independent laboratory for testing. Although the prior sample, taken on April 1, had tested within acceptable parameters for PCBs, the April 8 sample reflected PCB levels well in excess of 2,000 ppm. Shocked by this highly unusual result, plaintiff ordered another test, which yielded the same result. When plaintiff's president was informed about this in mid-May, 1994, he had no choice but to cease all sales of oil and disclose all that he knew to the EPA. Plaintiff filed this suit shortly thereafter, alleging that Con Edison had violated the Toxic Substance Control Act by causing oil with high concentrations of PCBs to be delivered to plaintiff on 25 separate occasions between March 29 and May 18, 1994. Plaintiff also alleged that Con Edison was liable for negligence and breach of warranty. Finally, suit was brought against the transporter defendants for negligence, breach of warranty, and fraud.
"Uncertainty as to the true state of any material fact defeats [a summary judgment] motion." Gibson v. American Broadcasting Coms., 892 F.2d 1128, 1132 (2d Cir. 1989). It is not the role of the trial court to weigh the evidence presented or to resolve any factual issue, but rather it is the court's job to determine whether, after the parties have conducted adequate discovery, any such issues remain to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Fed. R. Civ. P. 56(c). A factual issue is unresolved if a reasonable factfinder could determine in favor of either party. Anderson, 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Gibson, 892 F.2d at 1132. Moreover, the court must view the inferences to be drawn from the facts in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987). The non-moving party may defeat the motion for summary judgment by producing sufficient facts to establish a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Con Edison argues that none of the 25 shipments which it sent plaintiff between March 29, 1994 and May 18, 1994 could have caused the PCB contamination. The court agrees with Con Edison on 24 of the 25 shipments but holds that there is a genuine issue of material fact as to one of the shipments, namely the one made on April 6, 1994.
A. Liquid Waste Sent Between April 8, 1994 and May 18, 1994 (22 Shipments)
It is undisputed that the sample which was taken which yielded an abnormally high PCB concentration was taken at 9:30 a.m. on April 8, 1994. Therefore, liquid waste sent by Con Edison after the April 8 sample was taken clearly could not have caused the contamination. Indeed, plaintiff's president seems to admit this in the following passage of his deposition:
Q: Is there any doubt in your mind that by April 8, 1994, the PCB contamination had already occurred at BCF?