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Cooper Indus., Inc. v. Agway, Inc.

ELR Citation: 27 ELR 21018
Nos. 92-CV-0748, 956 F. Supp. 240/(N.D.N.Y., 02/27/1997)

The court holds a company liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for arranging for the disposal at a Superfund site of scrap metal and liquid waste that it generated at its facility. The court first denies the company's motion to dismiss the complaint against it on the grounds that plaintiffs failed to state a claim, that CERCLA cannot be applied retroactively, and that CERCLA, as applied in this case, violates the Commerce Clause. The court has previously decided these issues. The court next rejects the company's argument that the court should not consider the affidavit of one of plaintiffs' experts. Plaintiffs sufficiently rebutted the company's contention that the expert's opinions are based on unsupported inferences. The court then notes that it has already determined that there was a release of hazardous substances at the site, that the site is a "facility" within the meaning of CERCLA, that plaintiffs have incurred response costs due to the release of hazardous substances from the site, and that the response costs plaintiffs incurred are consistent with the national contingency plan. The court holds that summary judgment in favor of plaintiffs is appropriate on the company's CERCLA liability for the dumping of metal turnings or scrapings, because the company admits to having produced this form of scrap metal. In addition, plaintiffs claim that the deposition of ex-employees of a waste hauler establishes that the hauler transported such scrap metal from the company to the site. The company's attacks on the testimony of these deponents as based on hearsay or lacking personal knowledge are not accurate. Summary judgment in favor of plaintiffs is also appropriate on CERCLA liability as to the dumping of carbon steel separator sheets. The company does not oppose plaintiffs' argument that the company sold this scrap metal to a metal recovery company that then resold it to the waste hauler, which dumped it at the site. The court cannot, however, grant summary judgment on CERCLA liability for the dumping of wire scrap, given the two diametrically opposed versions of events with respect to that scrap.

The court then grants plaintiffs summary judgment on the issue of the company's liability as to liquid waste solvents and cutting oils, rejecting challenges to the testimony of a witness on whom plaintiffs rely in making this claim. The fact that this witness committed forgery nearly 40 years ago does not raise an issue of fact as to whether he is to be believed today, the fact that he was a suspect in prior crimes does not bear on his credibility, and the company's allegation that he lied under oath is an overstatement. Also, the testimony of the company's expert does not establish that the version of events presented by plaintiffs' witness cannot be believed. The court further rejects the company's argument that the testimony of others allegedly present with plaintiffs' witness on the day of dumping contradicts his testimony. The court next holds that issues of fact preclude summary judgment on the issue of divisibility and, for the same reason, declines to decide the issue of apportionment.

Counsel for Plaintiffs
Thomas F. O'Connor
O'Connor, Gacioch & Pope
One Marine Midland Plaza
E. Tower, 7th Fl., Binghamton NY 13902
(607) 772-9262

Counsel for Defendants
Reed W. Neuman
Weinberg, Bergeson & Neuman
1300 I St. NW, Washington DC 20005
(202) 962-8585