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COOPER INDUS. v. AGWAY

February 26, 1997

COOPER INDUSTRIES, INC.; KEYSTONE CONSOLIDATED INDUSTRIES, INC.; THE MONARCH MACHINE TOOL CO.; NIAGARA MOHAWK POWER CORPORATION; OVERHEAD DOOR CORPORATION, Plaintiffs, against AGWAY, INC.; BMC INDUSTRIES, INC.; BORG-WARNER CORPORATION; ELF ATOCHEM NORTH AMERICA, INC.; MACK TRUCKS, INC.; MOTOR TRANSPORTATION SERVICES, INC.; PALL TRINITY MICRO CORPORATION; THE RAYMOND CORPORATION; REDDING-HUNTER, INC.; ROTELCOM, INC.; SMITH CORONA CORPORATION; SOLA BASIC INDUSTRIES, INC.; WILSON SPORTING GOODS, INC.; PHILIP A. ROSEN; HARVEY M. ROSEN; CITY OF CORTLAND; and NEW YORK STATE ELECTRIC AND GAS CORPORATION, Defendants.


The opinion of the court was delivered by: MC AVOY

 I. BACKGROUND

 The motion before the Court is brought by the above-referenced plaintiffs seeking summary judgment on the issue of liability as against the defendant Pall Trinity Micro Corporation ("PTM") for response costs at the so-called Rosen superfund site. The defendant opposes the motion and has cross-moved for summary judgment in its favor.

 This case is brought under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9657. The facts of this case are well-known to the parties and the Court, and are set forth in the relevant sections of the decision of the Court below.

 By way of an overview, the Court notes that the plaintiffs have and are currently paying the costs of removal and the costs of the remedial investigation at the Rosen Superfund Site, pursuant to a number of Administrative Orders on Consent issued by the EPA. The costs to date exceed $ 1.9 million.

 In brief, the plaintiffs allege that PTM arranged for the removal of certain scrap metal and liquid waste from its facility directly and indirectly through Rosen Brothers. This relationship allegedly occurred intermittently during the nineteen seventies. The plaintiffs further allege that the Rosen Brothers dumped some or all of the waste removed from PTM at their "yard," the so-called Rosen Site. Finally, the plaintiffs allege that the waste from PTM that was dumped at the Rosen Site caused the incurrence of a portion of the response costs associated with the Rosen Site cleanup. On this basis the plaintiffs seek an order imposing CERCLA liability against the defendant PTM.

 Briefly stated, in reply, the defendant argues that there is proof that PTM had a relationship with the Rosen Brothers for only six months in the early seventies. Moreover, the defendant alleges that at best small amounts of scrap metal were dumped at the Rosen Site. Finally, the defendant alleges that these small amounts of scrap metal could have contributed no more than background 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.

 II. DISCUSSION

 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. *fn1" 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 ...


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