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November 10, 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. [BCF], 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 in violation of, inter alia, the Toxic Substances Control Act. 15 U.S.C. § 2619. Plaintiff has also brought state law claims under the doctrine of supplemental jurisdiction, against defendant, Miller Environmental Group, Inc. [MEG], the transporter company which delivered the allegedly contaminated waste oil from Con Edison to BCF. 28 U.S.C. § 1367(a).

 After discovery in this case was completed, MEG filed a motion for summary judgment, arguing there is no genuine issue of material fact as to whether it was negligent or breached any warranties with respect to BCF. After oral argument on the motion on October 30, 1997, this court entered an order granting the motion, noting that this opinion would follow.

 Since this court finds and concludes that no reasonable trier of fact could find that MEG breached its duty of reasonable care to BCF under the circumstances of this case or breached any express or implied warranty, BCF's case against MEG is DISMISSED IN ITS ENTIRETY.


 The following facts are not in dispute: BCF owned and operated a facility in Brooklyn, New York for the receipt and resale of waste oil and the disposal of waste water from its various customers. BCF's primary business objective was to extract the waste oil portion of any delivery and, after reprocessing, sell it as heating oil. Waste oil and water were brought to BCF's facility by independent transporters who collected these liquid wastes from numerous sources. When a transporter's truck arrived, BCF's chemist would test the waste to determine the relative concentrations of oil and water. If the waste oil had a concentration less than 5% by volume, it was considered waste water. BCF would then charge the waste water originator a fee in order to dispose of it. If the concentration of waste oil was greater than 5%, BCF would pay the waste oil originator for the oil, since this was the material BCF used to manufacture reprocessed heating oil.

 BCF did not operate as a facility permitted to receive hazardous waste. Under a federal court consent decree to which BCF and the federal Environmental Protection Agency [EPA] were parties, BCF was expressly prohibited from accepting oil which contained polychlorinated biphenyls [PCBs], a hazardous product, in concentrations greater than 50 parts per million (ppm). Moreover, the EPA required plaintiff to undertake a variety of testing procedures. BCF was required to test all liquid waste oil which arrived at its facility using what is known as the Dexsil PCB test kit. *fn1" Waste water was not tested because PCBs are insoluble in water and cannot, therefore, be found in aqueous solutions at concentrations near 50 ppm.

 In addition to the Dexsil test requirement, samples from 5% or more of incoming oil loads were sent to a certified independent laboratory. The independent laboratory 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, as usual, a sample from BCF'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. In light of this highly unusual result, BCF ordered another test, which yielded the same result. When BCF'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.

 BCF filed this suit alleging that Con Edison had violated the Toxic Substance Control Act by causing oil with high concentrations of PCBs to be delivered to BCF on 25 separate occasions between March 29 and May 18, 1994. BCF also alleged that Con Edison was liable for negligence and breach of warranty. Finally, suit was brought against several transporters, including MEG, for negligence, breach of warranty, and fraud. By Memorandum Opinion dated February 14, 1997, this court granted, in part, and denied, in part, a motion for summary judgment made by all defendants. It ruled that BCF had raised triable issues of fact only as to the April 6, 1994 delivery from Con Edison to BCF via the transporter MEG.

 For purposes of the instant motion the following facts are also not actually disputed: the April 6 shipment was comprised of clean-up from two sites; on April 5, 1994, an MEG employee assisted in the clean-up of a Number 6 fuel oil leak at Con Edison's site at Kent Avenue and Twelfth Street in Brooklyn; on April 6, 1994, another MEG employee cleaned an oil/water separator at Con Edison's site in Astoria, Queens. The court is also presently assuming for the purposes of this motion that in one or both of those shipments there was hazardous waste. However, it is undisputed that No. 6 fuel oil does not contain PCBs *fn2" , and that water cannot contain PCBs in concentrations approaching 50 ppm. It is also undisputed BCF did not perform the required Dexsil test on the materials in the April 6 shipment. *fn3"


 A. Standards for Granting Summary Judgment

 "Uncertainty as to the true state of any material fact defeats [a summary judgment] motion." Gibson v. American Broadcasting Corp., 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. See 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 fact finder could determine in favor of either party. See 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. See 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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