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United States v. Burns

Citation: 11 ELR 20831
No. No. 80-1424, 512 F. Supp. 916/15 ERC 2120/(W.D. Pa., 04/14/1981)

The court rules that (1) the government cannot bring an action for improper handling, storage, and disposal of polychlorinated biphenyls (PCBs) under the Resource Conservation and Recovery Act (RCRA), (2) § 311 of the Federal Water Pollution Control Act (FWPCA) is the government's exclusive means of recovering cleanup costs, and (3) under the Toxic Substances Control Act (TSCA) and the FWPCA "owners and operators" include joint venturers. Defendant Burns and the Dracup defendants, owners of a Pennsylvania warehouse, removed PCB transformer oil stored in defendant Ward's North Carolina facility and transported it to the Dracup warehouse, where it has contaminated the site and polluted the groundwater. The court dismisses the government's claim under RCRA, finding that TSCA, under which comprehensive regulations dealing with the disposal, handling, and storage of PCBs have been promulgated, adequately addresses the problems of disposal of PCBs and that allowing the government to proceed under both TSCA and RCRA would be contrary to § 1006(b) of RCRA, which requires the integration of RCRA with the provisions of other environmental statutes. Next, the court dismisses the government's claim for reimbursement of cleanup costs under TSCA since the limited liability provision in § 311 of the FWPCA would be rendered meaningless if the government could obtain an unlimited recovery under other statutes. The court denies certain defendants' motion to dismiss the TSCA and FWPCA claims on the ground that those statutes extend liability only to facility owners and operators, not their joint venturers, finding that claim to involve disputed issues of fact which must be resolved at trial.

Counsel for Plaintiff
William F. Ward, Craig R. McKay, Ass't U.S. Attorneys
633 U.S.P.O. & Cthse., 7th Ave. & Grant St., Pittsburgh PA 15219
(412) 722-3500

Michael Elder, Lloyd S. Guerci
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4170

Counsel for Defendants
James Kuhn
Kuhn, Engle & Stein
1512 Frick Bldg., Pittsburgh PA 15219
(412) 281-4555

P. Christian Hague
Meyer, Unkovic & Scott
1400 Frick Bldg., Pittsburgh PA 15219
(412) 456-2800

Robert Burns
R.D. No. 4, Shadyside Rd., Jamestown NY 14701
(716) 763-1346