United States v. Wade

No. 79-1426 (E.D. Pa. March 8, 1984)

The court in its discretion declines to grant the United States summary judgment on defendant generators' Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107 counterclaim against a U.S. agency even though defendants have only proved that the agency's wastes were transported by a hauler that took wastes to that site. The court notes that evidence that a party dealt with a suspect waste hauler and cannot prove that all its wastes were delivered to other sites is insufficient to prove liability under CERCLA § 107; establishing CERCLA liability requires proof that the party's wastes were sent to the site. However, the court refuses to grant summary judgment to the government on the counterclaim, allowing defendants an opportunity to come forward with stronger evidence linking the U.S. Naval Air Development Center to the Wade site.

[Related decisions are published at 12 ELR 21051, 13 ELR 20815, 14 ELR 20096, 14 ELR 20435, 14 ELR 20437, 14 ELR 20439, 14 ELR 20440, and 14 ELR 20441 — Ed.]

Counsel are listed at 14 ELR 20096.

[14 ELR 20436]

Newcomer, J.:

Memorandum

Before me is the United States' motion for summary judgment on the counterclaim asserted against the United States Naval Air Development Center (NADC). For reasons discussed below the motion is DENIED.

The sole basis for the summary judgment motion is the alleged failure of the generator defendants to produce any evidence that the hazardous wastes generated by the NADC were disposed of at the Wade site. At issue are several loads of NADC waste given to ABM Disposal Company for removal. In support of its motion the United States relies on two letters from ABM stating that two loads of NADC ferrous cyanide waste were disposed of at a landfill in New Jersey. A third load of ferrous cyanide waste is unaccounted for as are an unspecified number of loads of water and petroleum sludges.

In response the generator defendants do not point to any evidence that any NADC wastes were disposed of at the Wade site. Instead they argue that the letters relied upon are hearsay and therefore are an inadequate basis for summary judgment. In addition they contend that an entry on the ABM grid reflects that one of the loads referred to in the disputed letters was in fact disposed of at yet a third site, the Enterprise Avenue landfill, thereby undermining the credibility of the author of the letters. Of course, assuming the letters are inadmissible hearsay, and assuming the ABM grid is admissible and accurate — an issue not yet resolved — the generator defendants still have failed to link NADC waste to the Wade site.

Ultimately the generator defendants' basis for resistance to summary judgment on the counterclaim is contained in the following sentence from their brief:

As long as the United States takes the position with regard to the generator defendants that transfer of waste to ABM from a generator is sufficient to permit the fact finder to infer that the wastes were deposited at the Wade site if another location of disposal cannot be shown, the generator defendants are entitled to the benefit of the same presumption against the Naval Air Development Center.

Perhaps this position has been advanced to the generator defendants during the course of litigation but I do not recall its being advanced to me. Certainly I have never adopted it. To the contrary, my December 20, 1983 opinion reflects quite clearly that to establish liability the government will have to show that a given defendant's waste was in fact disposed of at the Wade site. The same is true for the generator defendants with respect to their counterclaim and third party complaint

I will refuse to grant summary judgment on the counterclaim solely to enable the generator defendants to come forward with some credible evidence linking NADC waste to the Wade site. [14 ELR 20437] Liability simply cannot be imposed in the absence of such evidence.¹

Order

AND NOW, this 8th day of March, 1984, upon consideration of the United States' motion for summary judgment on the counterclaim, it is hereby Ordered that the motion is DENIED.

AND IT IS SO ORDERED.

1. The generator defendants also argue that of the settling companies, generator defendants, and third-party defendants only NADC generated waste containing cadmium or potassium cyanide. Even if this could be established as a fact — and the United States contends it could not — it would not necessarily provide the requisite nexus between NADC waste and the Wade site. Some showing that no other reasonable source of the wastes exists would be necessary.