levels to the Rosen Site environment. On this basis generally, the defendant argues that it should not be held liable for any response costs incurred in connection with the Rosen Site.
To establish liability under CERCLA, the plaintiffs must show that PTM is a responsible party as defined under CERCLA, that the Rosen site is a "facility" within the meaning of CERCLA, that hazardous substances were released at the Rosen site, that the plaintiffs have incurred response costs due to the release of hazardous substances at the Rosen site, and that the response costs are consistent with the National Contingency Plan. See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992).
Pursuant to a Memorandum-Decision and Order of this Court, dated August 25, 1995, it is established that: (1) the plaintiffs have incurred response costs due to the release of hazardous substances at the Rosen site; (2) the response costs are consistent with the National Contingency Plan; (3) the Rosen site is a "facility" within the meaning of CERCLA; and (4) hazardous substances were released at the Rosen site. Thus, the remaining issue to be determined with respect to PTM is whether it is a "responsible party."
The plaintiffs have moved for summary judgment on the basis that the evidence conclusively shows (1) that PTM arranged for the disposal of its waste by the Rosen Brothers, the owners of the Rosen site, (2) that PTM waste actually was disposed of at the Rosen site, (3) that PTM's waste contained CERCLA hazardous substances, and (4) that hazardous substances of the kind found in PTM's waste were found at the site.
PTM responds by arguing that it, rather than the plaintiffs is entitled to summary judgment. The first arguments do not deal with the merits of a CERCLA claim. Rather, the defendant argues that the plaintiffs have failed to plead a claim for which relief can be granted, that CERCLA cannot be applied retroactively, and that CERCLA, as applied in this case, violates the Commerce Clause of the United States Constitution. Then, the defendant turns to the merits of the CERCLA claim allegedly asserted against it. PTM argues that the plaintiff's expert affidavit must be excluded, that the affidavits and testimony relied on by the plaintiffs is inadmissible on summary judgment, that the entire argument relied on by the plaintiffs is based on impermissible inferences, and that, with respect to manganese and copper from scrap metal at the Rosen site, PTM's divisible share is zero.
The Court will address each of these arguments seriatim.
A. Motion to Dismiss for Failure to State a Claim, CERCLA Retroactivity, and CERCLA in Relation to the Commerce Clause
These issues were raised before the Court in the summary judgment motions relating to the defendant Mack Trucks, Inc. The Court subsequently heard oral argument and rendered a written decision. See Cooper v. Agway, 1996 U.S. Dist. LEXIS 14196, 1996 WL 550128 (Sept. 23, 1996). The Court held that the plaintiffs' Complaint was viable, that CERCLA applied retroactively, and that CERCLA did not violate the Commerce Clause.
"The law of the case doctrine 'posits that when a Court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" DiLaura v. Power Authority of N.Y., 982 F.2d 73, 76 (2d Cir. 1992), quoting Liona Corp. v. PCH Assocs. (In Re PCH Assocs.), 949 F.2d 585, 592 (2d Cir. 1991) (further citation omitted). As the issues listed above have previously been decided by this Court, they constitute the law of the case, and will not be revisited herein. The defendant PTM is referred to the Court's reasoning in its September 23, 1996 Memorandum-Decision and Order for an extended discussion of these issues.
The defendant PTM's motion to dismiss the Complaint on the aforementioned grounds is denied.
B. Standard For Summary Judgment
The standard for analyzing a summary judgment motion is well-settled. A motion for summary judgment should be granted "if the pleadings... 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. P. 56(c). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In determining whether a genuine issue of material fact has been raised, not only must there be no genuine issue as to the evidentiary facts, but there also must be no controversy regarding the inferences to be drawn from them. Bennett v. New York City Dept. of Corrections, 705 F. Supp. 979, 982 (S.D.N.Y. 1989).
Once the moving party has satisfied its burden, the nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). When "considering a motion for summary judgment, the district court may rely on 'any material that would be admissible or usable at trial.'" Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir. 1994), quoting C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2721 at 40 (2d ed. 1983)). All ambiguities must be weighed in favor of the non-moving party. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). With these standards in mind, the Court now turns to the issues presented.
B. CERCLA Liability
As an initial matter, the defendant strenuously argues that the Court should not consider the affidavit of the plaintiffs' expert, Roy O. Ball. It is the defendant's contention that Mr. Ball's opinions are based on unsupportable inferences. In reply, the plaintiffs sufficiently rebut the defendant's contentions, such that the Court has considered the Ball Affidavit in connection with the present motions.
Liability under CERCLA is imposed where a plaintiff establishes the following five elements: (1) the defendant falls within one of the four categories of "responsible parties" enumerated in § 107(a), 42 U.S.C. § 9607(a); (2) the site of the clean-up is a facility under § 101(9), 42 U.S.C. § 9601(9); (3) there is a release or threatened release of hazardous substances at the facility; (4) as a result of which plaintiff has incurred response costs; and (5) the costs incurred conform to the national contingency plan ("NCP") under § 107(a)(4) as administered by the EPA. See U.S. v. Alcan Aluminum Corp., 990 F.2d 711, 719-20 (2d Cir. 1993), citing B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992). "If the [plaintiffs] establish each of these elements on undisputed facts, and the defendant is unable to demonstrate by a preponderance of the evidence the existence of one of the three affirmative defenses set forth in § 9607(b), then [the plaintiffs are] entitled to summary judgment on the issue of liability, even when genuine issues of material fact remain as to appropriate damages." U.S. v. Alcan Aluminum Corp., supra, at 720, citing Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 668 (5th Cir. 1989).
CERCLA is a strict liability statute, and imposes liability "any person who by contract, agreement, or otherwise arranged for disposal or treatment" of hazardous substances "from which there is a release, or a threatened release which causes the incurrence of response costs." 42 U.S.C. § 9607(a)(3) and (4). As explained by the Second Circuit, "the plain meaning of this language dictates that [a plaintiff] need only prove: (1) there was a release or threatened release, which (2) caused incurrence of response costs, and (3) that the defendant generated hazardous waste at the clean-up site. What is not required is that [a plaintiff] show that a specific defendant's waste caused incurrence of clean-up costs." Alcan, 990 F.2d at 721 (emphasis added).
As to what constitutes a hazardous substance, CERCLA defines the term "by cross-referencing several other environmental statutes.
See 42 U.S.C. § 9601(14). Significantly, the Act expressly refers to any such substance, and imposes no quantitative requirement. 990 F.2d at 720.
The Court need not discuss each element of CERCLA liability at this time. It has already been determined by this Court that: (1) there was a release of hazardous substances at the Rosen site; (2) that the Rosen site is a "facility" within the meaning of CERCLA; (3) that the plaintiffs have incurred response costs due to the release of hazardous substances at the Rosen site; and (4) that the response costs incurred by the plaintiffs are consistent with the National Contingency Plan. See August 25, 1995 Memorandum-Decision and Order of this Court. Accordingly, the Court, for the purposes of deciding the present summary judgment motions, must consider whether the record raises a material factual issue as to whether the defendant PTM is a responsible party.
D. Responsible Party
There are really two issues for the Court to examine: first, whether PTM is a responsible party, and second, to what extent PTM is responsible, if at all.
Pursuant to the express language of the statute, "responsible parties," in relevant part, include:
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
42 U.S.C. § 9607(a)(3). Therefore, to meet their burden, the plaintiffs in this case must show that the defendant arranged in some manner to have its waste transported to the Rosen site, that such waste was transported to the site, that the waste contained hazardous substances, and that those same substances were found at the site.
There are two basic categories of waste material at issue in this case with respect to PTM: (1) scrap metal, which includes metal turnings or scrapings, carbon steel separator sheets, and steel and copper wire scrap, and (2) liquid wastes, such as waste solvents and cutting oils.
1. Scrap Metal
As to the metal turnings or scrapings, PTM admits to having produced this form of scrap metal. More particularly, PTM stated in response to an interrogatory that the scrap metal provided by PTM to Rosen Brothers could have contained cast iron, malleable iron, carbon steel, types 304 and 316 stainless steel, aluminum, inconel, menel, hastelloy, brass, copper, copper-nickel, chromel, alumel, nickel-chromium, and nickel-aluminum.
The plaintiff claims that the deposition testimony of ex-Rosen employees, Linda McCloy, Derl Ross, Elbert Soule, and Michael Scott establishes that such scrap metal was transported by Rosen from PTM to the Rosen site during at least the time period 1971-1974. In particular, McCloy states that PTM was a customer of Rosen Brothers when she worked there, that Rosen Brothers handled the scrap metal turnings, which were "greasy wet," and that they dumped them at the Rosen Site. It was Ms. McCloy who received the calls from PTM when a pick up was needed, and it was she who dispatched an employee to drive a truck to PTM to pick up the scrap turnings. As to Ross, he testified at his deposition that he would go to PTM once a week, pick up the "turning box" that contained scrap metal and cutting oil, take it to the Rosen site, and dump the contents onto the ground. Mr. Soule testified at his deposition that he recalled picking up a box of oily metal turnings about once a month from PTM and dumping the contents on the ground at the Rosen Site. Finally, as to Mr. Scott, he testified that PTM steel and aluminum turnings covered with cutting oil were taken in boxes to the Rosen Site, and dumped. Each testified that they had personal knowledge of the contents of the boxes being picked up and/or dumped.
The defendant's attacks on the testimony of these deponents as statements based on hearsay or lacking personal knowledge. However, this simply is not an accurate assessment of the testimony of the witnesses, and is of no moment. Summary judgment in favor of the plaintiffs is appropriate on CERCLA liability for the dumping of metal turnings or scrapings.
As to the carbon steel separator sheets, the defendant PTM does not oppose the argument of the plaintiffs that such scrap was sold by PTM to Polson Metal Recovery, Inc., resold to Rosen Brothers, and subsequently dumped at the Rosen Site. Carbon steel is a CERCLA hazardous substance. Summary judgment in favor of the plaintiffs is appropriate on the issue of CERCLA liability as to the dumping of carbon steel separator sheets.
As to the steel and copper wire scrap, PTM admits that it generated such scrap. The plaintiffs rely on the testimony of an ex-Rosen Brothers employee for its assertion that such scrap was dumped at the Rosen Site. The employee, Mr. Hollenbeck, testified that he personally viewed metal and copper wire in a "box" at PTM. In addition, he picked up and dumped the "box" at the Rosen site. The defendant states that Mr. Hollenbeck testified that after being dumped at the Rosen Site, the scrap was then separated and taken away. In fact, Mr. Hollenbeck stated only that he assumed that that is what occurred. However, the testimony of Phillip Rosen, indicates that no copper wire ever went to the Rosen site. Rather, it all went to the Cobb Building (off site) and later to another location. Given two diametrically opposed versions of events with respect to the wire scrap, both based on personal knowledge, the Court cannot grant summary judgment on CERCLA liability for the dumping of wire scrap.
2. Liquid Waste
It is not contested that PTM produced waste solvents and cutting oils, and that such liquid waste was stored in 55-gallon drums at PTM. The plaintiff, relying solely on the deposition testimony of an ex-Rosen employee, Glenn Mattoon, claims that at least 200 of these drums were transported to the Rosen Site and buried/crushed, causing an undetermined amount of the solvents and oils inside
to spill out and seep into the ground. On the basis of the Mattoon deposition testimony, based on the personal knowledge of Mr. Mattoon, the plaintiffs have met their burden as to summary judgment in relation to liability.
The defendant attempts to meet its burden in two ways. First, the defendant attempts to discredit Mr. Mattoon as a witness, and second, the defendant claims that those whom Mr. Mattoon claims were with him on the day that the barrels were dumped contradict his testimony.
As to the first basis, PTM recounts an alleged forgery conviction from decades ago, repeats charges of theft, and makes allegations of Mr. Mattoon's "pathetic reputation for dishonesty" in the community. PTM asserts that this is proper, and cites U.S. v. McMurray, 20 F.3d 831, 834 (8th Cir. 1994). McMurray, however, discusses the impeachment of a witness at trial. McMurray does not address the issue of impeachment at the summary judgment stage, and thus, provides little authority for the vitriolic assaults on Mr. Mattoon's character contained in the papers filed in connection with this motion. Nevertheless, summary judgment should be denied in this case if PTM has set forth specific facts that place the credibility of Mr. Mattoon at issue. See County of Orange v. Sullivan Highway Products, Inc., 752 F. Supp. 643, 647 (S.D.N.Y. 1990); Vantage Point, Inc. v. Parker Bros., Inc., 529 F. Supp. 1204, 1214 (E.D.N.Y. 1981), aff'd mem., 697 F.2d 301 (2d Cir. 1982). The specific allegations challenging Mr. Mattoon's credibility are as follows: he is a convicted forger, he is/was a suspect in other crimes, he lied under oath, and the defendant's expert refutes allegations of a large dumping of liquid waste at the Rosen Site. The Court will address each of these allegations seriatim.
Mr. Mattoon's conviction for forgery, although bearing on credibility, occurred in or around 1958. It is clearly inadmissible. See Fed. R. Evid. 609(b). Not only is this prior conviction nearly 40 years old, but, it is of limited probative value in relation to its prejudicial effect. Id. The fact that Mr. Mattoon committed a forgery nearly forty years ago does not raise an issue of fact as to whether he is to be believed today.
The fact that Mr. Mattoon was a suspect in prior crimes is of no moment to the Court at this stage. Allegations of wrongdoing are not facts that bear on Mr. Mattoon's credibility. See Sterling Nat. Bank & Trust Co. v. Federated Dept. Stores, 612 F. Supp. 144, 146 (S.D.N.Y. 1985). Thus, they will not serve to raise a material factual issue.
PTM alleges that Mr. Mattoon lied under oath. Specifically, the defendant alleges that Mr. Mattoon lied about his involvement in an alcohol related automobile accident in April 1994, about past military service, and about certain civil judgments filed against him. A review of the deposition of Mr. Mattoon belies the defendant's desperate attempts to paint Mr. Mattoon as a liar. At best, Mr. Mattoon failed to answer questions directly that in his view, and that of the Court, strayed well beyond matters bearing on this case. As an example, the Court reproduces the following colloquy from Mr. Mattoon's deposition:
Q. Were you in the service?
A. If you say so.
Q. I don't know. I mean were you in the service?