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B.C.F. Oil Ref., Inc. v. Consolidated Edison Co. of N.Y., Inc.

ELR Citation: 27 ELR 21027
Nos. 94 Civ. 8565 (CBM), 955 F. Supp. 33/(S.D.N.Y., 02/14/1997)

The court holds that genuine issues of material fact exist as to whether a waste oil shipment to an oil refining company may have contained polychlorinated biphenyls (PCBs) in violation of the Toxic Substances Control Act. The oil refining company alleged that a utility company sent 25 shipments of contaminated oil to it after a sample taken on April 8, 1994, undisputedly yielded an abnormally high PCB concentration. The court first grants summary judgment to the utility company as to the 22 shipments it made after April 8, because there is no evidence that indicates further contamination after that date. A later sample indicated a significantly reduced PCB concentration that tends to show that the oil subsequently sent to the oil refining company was PCB-free. The court then grants summary judgment as to two of the three shipments made before April 8. The court holds that no genuine issue of material fact exists because the oil refining company's unloading tickets clearly indicate that the waste contained in the shipments was nonhazardous wastewater. The court, however, refuses to grant summary judgment as to a shipment made on April 6. The oil refining company proffered enough contradictory evidence to create a genuine issue of material fact. The oil refining company's April 6 unloading ticket is ambiguous and the manifests of the transporter indicate that the material shipped that date was a "waste combustible liquid." Because water is not combustible, the waste must have included some oil. Further, the source of the April 6 shipment was a power station that is the utility company's central receiving point for PCB-contaminated material and the type of PCBs found in the contaminated sample are the type that the utility uses. The court finally holds that, because summary judgment is granted as to all the other shipments, summary judgment will be granted to the transporter who was not involved in the April 6 shipment. The court, however, denies summary judgment to the transporter that made the April 6 shipment.

Counsel for Plaintiff
Michael J. Grudberg
Stillman & Friedman
425 Park Ave., New York NY 10022
(212) 223-0200

Counsel for Defendants
Robert F. Roarke
Wilson, Elser, Moskowitz, Edelman & Dicker
150 E. 42d St., New York NY 10017
(212) 490-3000