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February 14, 1997

B.C.F. OIL REFINING, INC., Plaintiff, against CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., et al., Defendants.

The opinion of the court was delivered by: MOTLEY

 Plaintiff BCF Oil Refining, Inc., formerly an oil refining company, brings this action against defendant Consolidated Edison Company of New York, Inc., ("Con Edison") alleging that Con Edison distributed contaminated oil to plaintiff. Plaintiff has also brought claims against defendants Miller Environmental Group, Inc. and ABC Tank Repair & Lining, Inc. (collectively, the transporter defendants) for allegedly transporting such contaminated oil from Con Edison and delivering it to plaintiff.

 Con Edison has filed a motion for summary judgment, and the transporter defendants have filed derivative motions for summary judgment in the event that the court grants Con Edison's motion. For the reasons explored infra, Con Edison's motion is granted in part and denied in part. Furthermore, ABC's motion for summary judgment is granted and the motion of Miller Environmental Group is denied.


 A. Plaintiff's Operating Procedure

 Plaintiff owned a facility for the receipt and disposal of liquid wastes. Plaintiff's primary business objective was to extract the waste oil portion of any delivery and, after reprocessing, sell it as heating oil.

 Liquid waste was brought to plaintiff's facility by independent transporters who collected the liquid waste from numerous sources. When a transporter's truck arrived, plaintiff first determined how much water was contained in the liquid waste by drawing a sample of the waste and placing it in a centrifuge, where the oil and the water would separate. If the waste oil had a concentration less than 5% by volume, it was considered waste water. Since plaintiff derived little economic benefit from waste water (given the low concentration of oil), plaintiff would charge waste water originators a fee in order to dispose of the liquid waste, which would then be off-loaded to one of plaintiff's "water tanks." If the concentration of waste oil was greater than 5%, plaintiff would pay the liquid waste originator, since this was the material plaintiff used to manufacture reprocessed heating oil. In such cases, when the waste water and waste oil were already separated into relatively distinct strata within the truck, the waste water would be placed in one of plaintiff's "water tanks" and the waste oil would be placed in an "oil tank." However, if the waste water and waste oil had been mixed due to vibrations in transit (much like oil and vinegar salad dressing are mixed when shaken), the contents were emptied either into a water tank or an oil tank depending on the relative concentrations of waste oil and waste water. The reprocessing of the oil began after the liquid waste had been deposited into the appropriate tank(s).

 Because plaintiff did not operate as a facility permitted to receive hazardous waste, applicable state and federal regulations prohibited plaintiff from accepting oil which contained polychlorinated biphenyls ("PCBs") in concentrations greater than 50 parts per million (ppm) *fn1"

 In order to insure that plaintiff did not accept oil whose concentration of PCBs exceeded 50 ppm, the EPA required plaintiff to undertake a variety of testing procedures. First, plaintiff was required to test all liquid waste that was not waste water which arrived at its facility using what is known as the Dexsil PCB test kit. Waste water was not tested because PCBs are insoluble in water and cannot therefore be found in aqueous 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.

 B. Contamination

 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 ...

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