United States v. Tyson

No. 84-2663 (E.D. Pa. August 21, 1986)

The court holds that the past and present owners of the Tyson's Lagoons dumpsite in Pennsylvania and companies that disposed of industrial wastes there are responsible parties (RPs) liable under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107 for the Environmental Protection Agency's (EPA's) response costs incurred in cleaning up the site. The court initially finds that the dumpsite owners disposed of industrial wastes in unlined lagoons in violation of state and federal law and that no attempt had been made to acquire a permit to store, treat, or dispose of hazardous substances under the Resource Conservation and Recovery Act. The court holds that General Devices, Inc., (GD) is liable for response costs as the current owner of the facility. Tyson's Lagoons is a facility, since hazardous substances were dumped at the site. The On-Scene Coordinator's report and remedial investigation report, which are admissible hearsay under Federal Rule of Evidence 803(8)(C), show that hazardous substances have been released from the site through ground- and surface waters. Further, GD is a current owner under CERCLA § 107(a)(1). The court next holds that GD has not asserted a valid defense to liability under § 107. The court holds that GD is not an innocent landowner, that financial benefit from cleanup to the landowner, or lack of it, is not a relevant factor in determining RP status, that GD's de minimis liability is not a defense, and that GD's relative innocence is a "fairness" defense not relevant to assessing potential liability. The court holds that GD is not entitled to assert the third party/due care defense of § 107(b)(3) since the dumping occurred in connection with a direct contractual relationship with the waste generator, and GD did not take any precautions against the dumping of illegal hazardous wastes. The court holds that CERCLA's retroactive application to hold a landowner strictly liable for acts which occurred before the effective date of CERCLA does not violate due process because Congress did not act arbitrarily in enacting CERCLA. The court next holds that the individual who first owned and operated the dumpsite is liable based on stipulations of fact satisfying each requirement of § 107(a)(4). The court holds that another defendant, Ciba-Geigy, also stipulated to facts sufficient to hold it liable as an RP under § 107(a)(3) as a hazardous waste generator. The court holds that the retrospective application of liability does not violate the constitutional guarantees against retroactive and disproportionate punishment in the Ex Post Facto, Bill of Attainder, and Due Process Clauses. The court finally holds that several parties impleaded as third party defendants are RPs under § 107(a)(3) as waste generators whose wastes were disposed of at the Tyson's site from which there has been a release that has caused the incurrence of response costs.

[An EPA Record of Decision for the Tyson's Dump site is digested at ELR ADMIN. MAT. 30022.]

Counsel for Plaintiff
F. Henry Habicht II, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Counsel for Defendants
Joseph A. Ciccitto
P.O. Box A, Collegeville PA 19426
(215) 489-6170

Bradford F. Whitman
Dechert, Price & Rhodes
3400 Center Sq. W., 1500 Market St., Philadelphia PA 19102
(215) 972-3400

[17 ELR 20528]

Broderick, J.:

Memorandum

This action was commenced by the United States pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act [CERCLA], 42 U.S.C. §§ 9601 et seq. The government seeks to recover the costs incurred and to be incurred in removal and remedial action taken by the Environmental Protection Agency [EPA] after its discovery of an alleged public health risk caused by the release of hazardous substances from Tyson's Lagoons in Upper Merion Township, Montgomery County, Pennsylvania. The United States contends that defendants General Devices, Inc. [General Devices], Ciba-Geigy Corporation [Ciba-Geigy] and Franklin P. Tyson are liable for these costs; General Devices as the present owner of Tyson's Lagoons, Ciba-Geigy as a generator of hazardous wastes disposed of at Tyson's Lagoons, and Franklin Tyson as one who disposed of hazardous wastes at Tyson's Lagoons. General Devices and Ciba-Geigy joined Wyeth Laboratories, Inc. [Wyeth], Essex Group, Inc. [Essex], SmithKline Beckman Corporation [SmithKline], and the Budd Company [Budd] as third party defendants. The defendants and third party defendants, with the exception of Frank Tyson, have effectively crossclaimed against each other for contribution.

From June 24, 1986 until July 11, 1986, the Court sitting without a jury heard evidence on the liability issues in this case, i.e., whether any or all defendants or third party defendants are responsible parties under 42 U.S.C. § 9607. The following constitutes the Court's findings of fact and conclusions of law. The parties have stipulated to various facts which have been incorporated where relevant.

CERCLA was enacted "to establish a comprehensive response and liability mechanism to control and cleanup releases into the environment of hazardous substances, and to provide compensation for costs incurred in responding to the releases and for damage to natural resources." United States v. Shell Oil Co., 605 F. Supp. 1064, 1068 [15 ELR 20337] (D. Colo. 1985). Section 104 of CERCLA, 42 U.S.C. § 9604(a) authorizes the President to take removal and remedial action in response to the release of contaminants or hazardous substances into the environment on the perceived threat of such release. The President has delegated this authority to EPA. Executive Order No. 12316, August 14, 1981, 46 F.R. 42237, as amended by Executive Order No. 12418, May 5, 1983, 48 F.R. 20891. The Hazardous Substance Response Fund, or "Superfund," created by 42 U.S.C. § 9631 is the source of the funding for EPA's response action. See 42 U.S.C. § 9611(a)(1). EPA may then recover the costs incurred in response action from the following categories of responsible parties pursuant to 42 U.S.C. § 9607:

(a) Covered persons; scope

Notwithstanding any other provision orrule of law, and subject only to the defenses set forth in subsection (b) of this section —

(1) the owner and operator of a vessel . . . or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated a facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment of hazardous substances owned or possessed by such person, by any other party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for —

A-all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan;

B-any other necessary costs of response incurred by any other person consistent with the national contingency plan; and

C-damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from a release.

(b) Defenses

There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by —

(1) an act of God;

(2) an act of war;

(3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant . . ., if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or

(4) any combination of the foregoing paragraphs.

The National Contingency Plan (NCP), prepared by EPA pursuant to 42 U.S.C. § 9605, establishes procedures and standards for response actions. See 40 C.F.R. § 300.1 et seq. Section 9607 limits EPA's authority to recover response costs to costs which are not inconsistent with the NCP.

Strict liability is imposed by section § 9607(a). New York v. Shore Realty Corp., 759 F.2d 1032, 1042 [15 ELR 20358] (2d Cir. 1985) (citations omitted); United States v. Ottati & Goss, Inc., 23 ERC 1705, 1740 [16 ELR 20763] (D.N.H. 1985); United States v. Ward, 23 ERC 1391, 1396 [16 ELR 20127] (E.D.N.C. 1985); United States v. Argent, 21 ERC 1354, 1356 [14 ELR 20616] (D.N.M. 1984); United States v. South Carolina Disposal, Inc., 20 ERC 1753, 1756 [14 ELR 20272] (D.S.C. 1984); United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1118 [12 ELR 20954] (D. Minn. 1982). The only statutory defenses to liability are those set forth in section 9607(b). In the trial limited to the liability issues, the Court considered the evidence offered by defendants Ciba-Geigy and General Devices against the third party defendants, and the third party defendants' defenses. The Court reserved the issues of contribution, apportionment of responsibility among the liable parties, the costs of response actions, and the consistency of the response costs with the NCP for trial at a future date.

I. United States v. General Devices, Franklin P. Tyson, and Ciba-Geigy

A. Background

In 1960, Franklin P. Tyson was in the business of hauling cesspool and industrial waste. Mr. Tyson purchased Tyson's [17 ELR 20529] Lagoons, a property located off Brownlie Road in Upper Merion Township, Montgomery County, Pennsylvania, in March of 1960. Prior to that time, the property had been used as a sandstone quarry. The Tyson's Lagoons site slopes toward the Schuylkill River. Between the end of the property and the river lie a railroad yard and tracks. Along each side of the property runs a small tributary to the Schuylkill. After acquiring this site, Mr. Tyson dug lagoons, or holes in the ground, for use in waste disposal. The lagoons had no fortification or impermeable layer at the bottom or sides. Mr. Tyson built rims around the lagoons to prevent the flow of rainwater into them and to prevent overflow and runoff of the liquid waste in the lagoons. Mr. Tyson began with two lagoons, one above the other. He ordered wastes to be dumped in the upper lagoon because he expected that any overflow would be contained by the lower lagoon. As a lagoon was filled with liquid waste and sludge, Mr. Tyson would cover the lagoon with dirt and construct a new lagoon. By June 1960, Mr. Tyson had the approval of the Pennsylvania Department of Health and Lower Merion Township to use Tyson's Lagoons as a dumpsite for liquid waste disposal. Mr. Tyson used the lagoons for disposing of sewage or cesspool waste as well as for disposing of chemical or industrial waste.

General Devices is a New Jersey corporation engaged primarily in providing contract technical services of experienced engineering, scientific, and other technical personnel to a wide variety of businesses. Leslie Shaw, the chairman of the board of General Devices for 1967-1969, was a close personal friend of Frank Tyson's. The two met for breakfast or lunch about three to four times each week. Mr. Tyson discussed every aspect of his business with Leslie Shaw: customers, assets, equipment, sewage, waste hauling, industrial waste hauling, and Mr. Tyson's acquisition of Tyson's Lagoons as a dumpsite for both types of waste. Mr. Tyson told Mr. Shaw that Tyson was one of the very few in the waste disposal business to have his own dumpsite. Mr. Tyson also knew other officers and directors of General Devices socially and through civic committee contacts. He discussed his cesspool and industrial waste hauling business freely with these people.

Beginning in the mid 1960's, Upper Merion Township received complaints of bad odors emanating from Tyson's Lagoons, and communicated these complaints to Mr. Tyson. In addition, the Pennsylvania Department of Health []DOH[ later Department of Environmental Resources ]DER[] notified Mr. Tyson that wastes from his lagoons were discharging into the Schuylkill River in violation of Pennsylvania law. Mr. Tyson was cited and fined at least three times between 1964 and 1966 for violations of the Clean Streams Law. These citations were reported in the newspaper. In 1965-66, DOH repeatedly notified Mr. Tyson that the operation of the lagoons caused pollution of the waters of the Commonwealth and ordered him to stop dumping wastes there. In 1966, the Attorney General of Pennsylvania's office requested Mr. Tyson to construct a physical barrier across the entrance to Tyson's Lagoons. Mr. Tyson placed a cable across the entrance to the dumpsite and informed the Attorney General that he was disposing of his wastes elsewhere.

Whenever he was fined, Mr. Tyson would attempt to abate the problem by filling lagoons and building new ones, or by building up the berm around the lagoons. He would also stop using the lagoons temporarily. The berm failed to prevent the leaching of chemicals through the soil. In the hope that a new law would permit him to use Tyson's Lagoons for waste disposal and because it was the most convenient and affordable way to conduct business, Mr. Tyson resumed dumping at Tyson's Lagoons despite the fines and despite his representations to the Attorney General in 1966. Mr. Tyson could generally find alternative disposal sites for cesspool waste in Township sewers or at O'Hara's landfill. However, he could not take any chemical waste to the sewers and he could not take murky or odorous chemical wastes to O'Hara's. When neither the sewers nor O'Hara's was available, he would dump in Tyson's Lagoons.

Around 1966 or later, Mr. Tyson constructed a dirt barrier across the entrance to the lagoons. However, he still was able to gain access to the lagoons for dumping. He continued to dump wastes there on an "as needed" basis despite the existence of the dirt barrier, until November of 1969.

In the beginning of 1968, Mr. Tyson was experiencing some financial difficulties and Les Shaw expressed an interest in going into business with him. Mr. Shaw thought there was a great future in waste disposal and saw the possibility of added profit through reclamation of chemicals from industrial waste. Mr. Shaw offered Mr. Tyson $60,000 to go into business with General Devices. Mr. Tyson and Mr. Shaw met with some of the officers of General Devices to discuss the formation of a corporation to be called Fast Pollutant Treatment, Inc. [FPTI]. Mr. Shaw explained the prospects and the intention to further develop the chemical waste aspect of the business to the Board of Directors of General Devices. General Devices knew or should have known that Mr. Tyson hauled industrial as well as sewage waste, that he had been fined by the DOH, and that he intended to continue to use the lagoons for dumping industrial waste after the formation of FPTI. On June 5, 1986, Mr. Tyson and General Devices agreed in writing to form FPTI, a Pennsylvania corporation incorporated on June 26, 1968. Mr. Tyson's contribution to FPTI was the Tyson's Lagoons property, his tanker trucks, bulldozer, front end loader and other equipment, customer lists, and goodwill. General Devices' contribution was $60,000. After payment of what was owed on Mr. Tyson's equipment and debts of his business, this money went into the capitalization of FPTI.

Title to Tyson's Lagoons was transferred from Mr. Tyson to FPTI on September 25, 1968. General Devices acquired 51% of the stock of FPTI and Mr. Tyson received the remaining 49%. The majority of officers and directors of FPTI were officers, directors, or employees of GDI. FPTI's first directors were Frank Tyson; James E. Meneses, Secretary and General Counsel to General Devices from 1967 to the present; and Gregory J. Dean, then an employee in Mr. Meneses' law firm. At the first FPTI shareholders' meeting, Frank Tyson, William W. Morris, and Gregory J. Dean were elected directors. William W. Morris was Vice President, Finance, of General Devices from 1969-1973 and President of General Devices from 1969-1972. At the first meeting of the FPTI Board of Directors, Mr. Tyson was elected President, Les Shaw was elected Vice President, Gregory Dean was elected Secretary, and William W. Morris was elected Treasurer. John J. Stagliano, the Assistant Treasurer of General Devices from June, 1968 to October 3, 1969, was the Assistant Treasurer of FPTI as of June 9, 1969. A. W. Schemm, a bookkeeper for General Devices, was the Assistant Secretary of FPTI as of June 9, 1969. The registered office of FPTI as stated in the Articles of Incorporation was 611 Swede Street, Norristown, Pennsylvania, the same address used by the law offices of Messrs. Meneses and Dean.

General Devices actively participated in the management of FPTI. A General Devices employee handled FPTI's accounting and bookkeeping, including setting up and maintaining balance sheets and profit and loss statements, paying FPTI's customers, and maintaining an accounts receivable ledger. General Devices' counsel provided legal services for FPTI.

Les Shaw visited Tyson's Lagoons during the period when the lagoons were being used for waste disposal. General Counsel and Secretary of General Devices, Mr. Meneses, visited the site in September, 1968. From the early 1960's until the 1970's, strong unpleasant chemical odors emanated from the property. The liquid in the lagoons was colored rust, black and red at various times. Discharges from the lagoons and surface runoff were obvious to observers in 1969.

It should have been obvious to General Devices in 1968 and 1969 that the lagoons were not being used solely for the disposal of sewage waste. General Devices knew or should have known that FPTI's dumping of industrial wastes at Tyson's Lagoons was in violation of state law. Yet no one affiliated with General Devices did anything to stop the use of the lagoons as a receptacle for industrial waste.

In an agreement dated October 31, 1969, FPTI agreed to transfer title to Tyson's Lagoons to General Devices in exchange for General Devices' stock in FPTI. In addition, FPTI agreed to pay $5,000.00 to General Devices. FPTI assigned its accounts receivable to General Devices in payment of this $5,000.00. In the event General Devices was unable to collect $5,000.00 on these accounts, FPTI agreed to pay the difference in cash to General Devices. On November 14, 1969, FPTI transferred title to Tyson's Lagoons to General Devices pursuant to this agreement. Mr. Tyson ceased dumping at Tyson's Lagoons when General Devices acquired title. General Devices owned Tyson's from November 14, 1969 to the present.

[17 ELR 20530]

In 1973, General Devices received notice that industrial waste impoundments or lagoons on the Tyson's site were in violation of the Pennsylvania Clean Streams Law. General Devices was told to empty the lagoons of polluting substances, backfill, grade and seed the lagoons or otherwise bring them into compliance with DER regulations. General Devices was told that the content of phenols, iron, and pH in the waste impoundments concerned the DER. John L. Smith, then president of General Devices, reported these notices to the General Devices Board of Directors. General Devices hired Ace Disposal Services to pump out the liquid portion of the waste in the impoundments. Ace Disposal, which had no expertise in dealing with industrial waste, did not remove the thick, oily, black substance in the bottom of each lagoon. An excavation contractor then filled the lagoons with dirt. General Devices did not arrange for the removal or disposal of contaminated soils on the property, nor did it investigate what contaminants were present at the site. General Devices notified DER that the "lagoon problem" on the site had been "eliminated." Government Exhibit 81. In fact, the polluting chemicals were not removed from the site, and contaminants were spread when ponding of water occurred and the contaminated surface water ran off the site.

On February 25, 1983, EPA made an oral demand that General Devices undertake response actions at Tyson's Lagoons and further stated that if General Devices did not do so, EPA would undertake these actions and thereafter would seek to recover its expenditures from General Devices under CERCLA. This demand was confirmed by an EPA letter dated March 10, 1983. General Devices did not agree to undertake response actions at the site.

At no time did General Devices apply for or acquire a permit under subtitle C of the Solid Waste Disposal Act, 42 U.S.C. § 6921 et seq., to store, treat, or dispose of hazardous substances at Tyson's Lagoons. At no time prior to 1983 did General Devices notify EPA that hazardous substances had been stored at Tyson's Lagoons.

Frank Tyson disposed of waste trichloropropane, which was generated by the Tom's River Chemical Corp. (now owned by Ciba-Geigy) at Tyson's Lagoons. Some of the waste trichloropropane from Tom's River Chemical Corp. that was disposed at Tyson's Lagoons included the heavy ends (still bottoms) from the purification column in the production of epichlorohydrin. The heavy ends (still bottoms) is listed as a hazardous waste under section 3001 of the Solid Waste Disposal Act, 42 U.S.C. 6921 (waste K-017).

B. United States v. General Devices

The United States seeks to hold General Devices liable under section 9607(a)(1) as the current owner of a facility, Tyson's Lagoons, from which there was a release or a threatened release of a hazardous substance which caused the incurrence of response costs. The United States' burden under section 9607(a)(1) is to prove that (1) Tyson's is a facility within the meaning of section 9607(a)(1); (2) there has been a release or a threat of release of hazardous substance from Tyson's Lagoons; (3) the release or threat of release caused the incurrence of response costs at Tyson's Lagoons; and (4) GDI is the current owner of Tyson's. New York v. Shore Realty Corp., 759 at 1043-44; United States v. Maryland Bank & Trust Co., 24 ERC 1193, 1196-97 (1986).

(1) Facility as defined in CERCLA

A facility is defined in CERCLA as

(A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, oraircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.

42 U.S.C. § 9601(9). Tyson's Lagoons is a facility within this definition by virtue of the existence of a hazardous substance in the wastes hauled from Tom's River Chemical Corp. and other industrial wastes hauled by Mr. Tyson as hereinafter discussed; which wastes were dumped into the lagoons or impoundments at the site. See United States v. Conservation Chemical Co., 619 F. Supp. 162, 184-85 [16 ELR 20193] (W.D. Mo. 1985) (facility includes every conceivable area where hazardous substances have come to be located).

(2) Release or Threat of Release of a Hazardous Substance Which Caused the Incurrence of Response Costs

A release is "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment . . ." 42 U.S.C. § 9601(22) (omitting exclusions not pertinent here). A hazardous substance is. . . .

(A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C.A. § 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C.A. § 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C.A. § 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 15. . . .

See 40 C.F.R. § 3204.

In 1983, EPA investigated complaints of strong chemical odors and a leachate problem at the Tyson's Lagoons site to determine whether response action was necessary. Phillip Retallick was the EPA On-Scene Coordinator assigned to Tyson's Lagoons. In January, 1983 Mr. Retallick noticed areas of discolored soil seeps in the ground generating reddish-brown leachate which ran over the surface toward the Schuylkill River, and partially backfilled lagoons. Mr. Retallick also found a high concentration of organic vapors in the air over the spots where leachate was escaping. Mr. Retallick's crew took samples of the soil, sediment, water, and air, which were secured and sent to EPA's Central Regional Laboratory in Maryland. Based on the results of these samples, Mr. Retallick concluded that emergency removal action should be undertaken. He obtained approval of an EPA Fund Authorization Request and authorization to hire independent contractors to assist him in the emergency removal activity, which took place from March 1-31, 1983. Following the immediate response operations, additional observation, sampling, studies and surveys to determine the extent of contamination continued until September 1983. The emergency response action supervised by Mr. Retallick included collecting and "cleaning" the leachate, diverting a tributary to minimize contamination, filling and capping the lagoons, and fencing off the entire site. Mr. Retallick prepared pollution reports for submission to EPA which summarized the activities of the emergency response team and reported the costs incurred on the project. See Government Exhibit 4 pp. 73-107. The samples taken by Mr. Retallick's team were sent to the EPA Central Regional Laboratory. The analytical chemists at the EPA Central Regional Lab performed a gas chromatograph/mass spectrometer analysis of the samples taken by the emergency response team. This method of analysis of environmental samples is a generally accepted method in the field and reliable for testing complex mixtures. The results of the laboratory analysis and the findings of the On-Scene Coordinator on the basis of the emergency response action are set forth in the On-Scene Coordinator's Report. See Government Exhibit 4 and pp. 181-315 thereof.

Following the emergency removal action, EPA conducted a further investigation to determine the appropriate course of action to effect a permanent remedy of the conditions at Tyson's Lagoon. EPA commonly hires independent contractors to do the field work in this phase of response actions because of a shortage of EPA manpower. EPA hired the NUS Corporation to perform the remedial investigation at Tyson's Lagoons. NUS Corporation developed a work plan which was approved by EPA and then subcontracted the field work to Baker/TSA, a division of Michael Baker Corporation. Both Baker/TSA and NUS Corporation were in the business of performing site characterization investigations, evaluating hazardous substances found on a site, and preparing reports of their findings.

On-site and off-site testing of soil, surface water, groundwater, and sediment was performed by Baker/TSA according to the work plan. The samples were sent to EPA-approved independent [17 ELR 20531] laboratories who participated in the EPA contract laboratory program. Laboratories in the EPA program follow specific analytical and data validation guidelines prepared by an EPA chemist. The lab results on samples from Tyson's Lagoons were sent to Baker/TSA, where the sample numbers and logs were rechecked for verification. Baker/TSA compiled a report of its field work and the results of laboratory analysis and submitted it to NUS Corporation and EPA for review in May 1984. The EPA Remedial Project Manager at that time, Joseph Dugandzic, reviewed the report and requested criticism from an EPA hydrogeologist and an EPA toxicologist. The report was handed back to Baker/TSA for additional data verification and refinement of conclusions. A revised draft report was scrutinized in the same way and approved by EPA as the Remedial Investigation Report. See Government Exhibit 86.

The Court determined to admit the Remedial Investigation Report and Appendices II & VII of the On-Scene Coordinator's Report, despite hearsay objections and objections to lack of personal knowledge. The objections to lab findings in Appendix VII of the On-Scene Coordinator's Report (OSC Report) were met by the government's introduction of the testimony of John Austin, an analytical chemist at the EPA Central Regional Lab, who was involved in the generation of the lab analysis findings in Appendix VII of the OSC Report. The Pollution Reports in Appendix II of the OSC Report were prepared by Phillip Retallick and contain matters observed and factual findings resulting from an investigation he supervised which was made pursuant to authority granted by law. See Fed. R. Evid. 803(8)(c). The report of Baker/TSA was made in the course of Baker/TSA's regularly conducted business, and it was the regular practice of Baker/TSA to make such a report. The findings of the EPA contract labs were recorded in the course of the labs' regularly conducted business, and it was the regular practice for these labs to make such records. The Remedial Investigation Report was compiled by EPA personnel in connection with an investigation made pursuant to authority granted by law. The circumstances under which the Remedial Investigation Report was made are evidence of its trustworthiness and reliability. The inclusion of findings made by independent contractors in the ordinary course of this business does not preclude the Remedial Investigation Report's admissibility under Fed. R. Evid. 803(8)(c) where there is sufficient evidence of the report's trustworthiness and reliability. See U.S. v. Central Gulf Lines, 747 F.2d 315, 319 (5th Cir. 1984).

The On-Scene Coordinator's Report, the Remedial Investigation Report, and the expert testimony establish that the following contaminants were present on the Tyson's Lagoon site in 1983:

1,2,4 Trichlorobenzene

1,2 Dichlorobenzene

Toluene

Ethylbenzene

Xylene

1,2,3 Trichloropropane

Copper

The evidence also shows that in early 1983, at least the following hazardous substances were being released from the site to adjacent property by way of the groundwater and the surfacewater:

1,2,4 Trichlorobenzene

1,2 Dichlorobenzene

Toluene

Ethylbenzene

Xylene

1,2,3 Trichloropropane

The leaching of hazardous substances into soil and ground-water may be a release under CERCLA. Conservation Chemical, 619 F. Supp. at 185 (citing U.S. v. Wade, 577 F. Supp. 1326, 1334 [14 ELR 20096] (E.D. Pa. 1984). Finally, the evidence shows that the release or threat of release of hazardous substances from Tyson's Lagoons caused the incurrence of response costs at that site.

Current Owner of a Facility

General Devices has never contested that it has been the owner of Tyson's Lagoons from November 14, 1969 to the present. (See Stipulation of Facts in Pretrial Order, § 24.) The current owner of a facility is within section 9607(a)(1) even if it never operated the facility as a hazardous waste dumpsite and even if no hazardous wastes were dumped at the facility during its period of ownership. New York v. Shore Realty, 759 F.2d at 1043-45; U.S. v. Maryland Bank & Trust, 24 ERC at 1196-97. See also Conservation Chemical, 619 F. Supp. at 186-87. However, as the Court has already found, General Devices was or should have been aware that industrial/chemical wastes were dumped at Tyson's Lagoons after June or July 1968 and during the period of General Devices' involvement in FPTI. General Devices is a current owner of a facility pursuant to 42 U.S.C. § 9607(a)(1); therefore, the case relied upon by General Devices, Cadillac Fairview/Cadillac, Inc. v. Dow Chemical Co., 14 ELR 20376 (Envtl. L. Inst.) (C.D. Cal., Mar. 5, 1984) (applying § 9607(a)(2)), is inapposite. See New York v. Shore Realty, 759 F.2d at 1044 (distinguishing Cadillac).

General Devices Defenses

General Devices contends that it is relieved of liability under section 9607(a)(1) on the following grounds: (1) it would be unfair to hold General Devices liable for cleanup costs under CERCLA because the cleanup does not benefit General Devices, as General Devices was ready to show through an expert appraiser's testimony; (2) that any liability on the part of General Devices is de minimis; (3) that General Devices should have been able to show its relative innocence by introducing evidence of Ciba-Geigy's reckless disposal of industrial waste at Tyson's Lagoons; (4) that General Devices is entitled to assert the third party/due care defense set forth in 42 U.S.C. § 9607(b)(3); and (5) that the retroactive application of CERCLA to hold an innocent landowner who acquired property 16 years before trial strictly liable for substances placed on that property by others is a violation of the procedural and substantive due process guarantees of the fifth amendment to the Constitution of the United States. For the reasons discussed below, the Court finds no merit in any of these contentions.

General Devices contends that it is proper for the court to balance the equities in each individual case to determine whether it is "fair" to impose liability upon a person who falls within the express coverage of section 107 of CERCLA. Congress intended that responsible parties within the coverage of section 107(a) should be strictly liable subject only to the affirmative defenses relating to causation which are set forth in section 107(b). New York v. Shore Realty, 759 F.2d at 1042 (citing 126 Cong. Rec. 30,932 (statement of Sen. Randolph); id. at 31,964 (statement of Rep. Florio); id. at 31,966 (Department of Justice view of Senate compromise discussing strict liability)): United States v. Ward, 23 ERC at 1396; United States v. Argent Corp., 21 ERC at 1356; United States v. South Carolina Recycling and Disposal, Inc., 20 ERC at 1756; United States v. Reilly Tar & Chemical Corp., 546 F. Supp. at 1118; Developments in the Law — Toxic Waste Litigation, 99 Harv. L. Rev. 1458, 1518-19 (1986).

Section 107 of CERCLA imposes liability upon certain classes of people, including current owners, without further inquiry:

. . . It is quite clear that if the current owner of a site could avoid liability merely by having purchased the site after chemical dumping had ceased waste sites would certainly be sold, following the cessation of dumping, to new owners who could avoid the liability otherwise required by CERCLA. Congress had well in mind that persons who dump or store hazardous wastes sometimes cannot be located or may be deceased or judgment proof. . . . We will not interpret section 9607(1) in any way that apparently frustrates the statute's goals, in the absence of a specific congressional intention otherwise. . . .

Shore Realty, 759 F.2d at 1044-45.

General Devices has cited two cases allowing equitable defenses under CERCLA. See Mardan Corp. v. C.G.C. Music Ltd., 600 F. Supp. 1049 [15 ELR 20370] (D. Ariz. 1984) (private action: settlement andrelease; unclean hands); United States v. Conservation Chemical, supra (discussing waiver, estoppel). In Mardan, the court specifically noted that neither of the defenses it recognized would be available in a suit by the government based on CERCLA section 107(a)(4)(A). Further, the Mardan court was concerned that construing section 107(b)'s defenses as exclusive would prevent a defendant from raising the defenses of res judicata, payment, accord and satisfaction, statute of limitations, waiver and laches. Id. at 1056 n.9. Conservation Chemical stated that a determination of whether the equitable defenses of waiver, estoppel, or laches should be available depends upon a consideration of all of the circumstances of a particular case. 619 F. Supp. at 206.

Neither of these cases supports the general overall fairness determination [17 ELR 20532] which General Devices requests in its first two arguments. Moreover, as to General Devices' first "defense," such a determination would not change the finding of General Devices' liability. The Court has already found that General Devices was or should have been aware that industrial wastes containing hazardous substances were being dumped at Tyson's before and after the formation of FPTI, that this dumping polluted the waters of the Commonwealth of Pennsylvania, and that this dumping was illegal. General Devices is not an innocent and unaware landowner, the picture which General Devices would like to paint. And even if this Court considered financial benefit to General Devices relevant at this segment of the trial, the Court would find that EPA's action in removing a dangerous condition created by the presence of hazardous substances on property owned by General Devices works to General Devices' advantage by reducing its potential liability for harm to third persons caused by the dangerous condition.

As to General Devices' second argument, it suffices to note that even the Conservation Chemical court specifically rejected a de minimis defense to responsible party status under CERCLA. 619 F. Supp. at 233. This Court agrees that the application of a de minimis defense in CERCLA cases would be inconsistent with Congressional intent. And as heretofore pointed out, General Devices was much more than a de minimis contributor to the hazardous condition created on the Tyson's Lagoon site.

To the extent General Devices' third "defense," that it should have been able to show its relative innocence in comparison to the greater culpability of Ciba-Geigy is a branch of the "fairness" defense, it is rejected for the reasons already stated. To the extent this defense seeks to resurrect General Devices' argument made during trial that Ciba-Geigy should be solely liable among all defendants and third party defendants since it willfully caused the release of hazardous substances from Tyson's pursuant to 42 U.S.C. § 9607(c)(2), the Court has already rejected this claim. As stated in the Memorandum and Order of July 1, 1986, section 9607(c)(2) is a qualification of section 9607(c)(1)'s dollar limitations on liability on the case of willful misconduct by a responsible person; it does not absolve any other responsible person of liability.

General Devices' fourth defense is based upon 42 U.S.C. § 9607(b)(3), which provides,

(3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant . . ., if the defendant establishes by a preponderance of the evidence that (1) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions. . . .

(emphasis added). General Devices' defense based on section 9607(b)(3) must fail for several reasons. First, General Devices entered into an agreement with Frank Tyson to form and incorporate FPTI, a corporation in the cesspool and industrial waste dumping business. In 1969, FPTI entered into a contract to buy back General Devices' FPTI shares and assigned its accounts receivable to General Devices as security for the purchase price. The fact that Tyson or FPTI was responsible for the release of hazardous substances from Tyson's Lagoons is no defense to General Devices where the actions of Frank Tyson or FPTI occurred in connection with a direct or indirect contractual relationship between General Devices and Frank Tyson or FPTI. United States v. Ward, 23 ERC at 1400. See also Conservation Chemical, 619 F. Supp. at 235.

Second, General Devices has failed to show that it exercised due care with respect to the hazardous substances concerned, or to take precautions against the foreseeable dumping of industrial wastes at Tyson's Lagoons by FPTI. Given General Devices' knowledge of Tyson's industrial waste hauling, it should have foreseen that he would take these wastes to Tyson's Lagoons while doing business as FPTI. Since General Devices knew the consequences of such dumping were harmful to the environment and illegal, General Devices should have taken some precautions to prevent this dumping. And in 1973 when General Devices was notified by DER that it should empty the lagoons of polluting substances and fill them, General Devices failed to exercise due care in carrying out these orders. It failed to consult a specialist in industrial wastes, disposed of only the liquid portion of the waste in two impoundments, left the black oily waste in the soil, and covered it over with dirt. Given these facts, it cannot be said that the release of hazardous substances from Tyson's Lagoons and the resultant damages were caused solely by Mr. Tyson or FPTI. See Shore Realty, 759 F.2d at 1048-49; Developments, 99 Harv. L. Rev. at 1545-48 & n.16. For all of these reasons, section 9607(b)(3) does not provide a defense to liability for General Devices.

General Devices' final argument is that the retroactive application of CERCLA to hold an innocent landowner who acquired property 16 years before trial strictly liable for substances placed on that propertyby others for whom the landowner is not responsible is a violation of procedural and substantive due process under the fifth amendment. General Devices is apparently concerned about the fact that CERCLA may impose strict liability based upon mere acquisition of a hazardous waste dumpsite, an activity which was not illegal at the time it took place.

CERCLA necessarily operates retroactively, because it was enacted to specifically deal with the deterioration of the environment caused by dumping of hazardous wastes which took place in the past. United States v. Ottati & Goss, Inc., 23 ERC at 1736. The statute was intended to fill the regulatory gap in coverage of abandoned and inactive hazardous waste disposal sites. New Developments, 99 Harv. L. Rev. at 1540 & n.122 (citing 1980 U.S. Code Cong. & Ad. News 6119, 6125). See also United States v. Northeastern Pharmaceutical and Chemical Company, Inc., 579 F. Supp. 823, 838 [14 ELR 20212] (W.D. Mo. 1984) [NEPACCO].

In NEPACCO, the court rejected the same due process claim raised by General Devices, 579 F. Supp. at 840-43. The NEPACCO court explained that an economic regulation statute which applies retroactively is presumed constitutional and the burden is upon the one alleging a due process violation to show that the legislature has acted arbitrarily and irrationally. 579 F. Supp. at 840 (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S. Ct. 2882, 2892 (1976)). In Turner Elkhorn, the Supreme Court upheld a statute which imposed retroactive strict liability upon employers of coal miners for black lung benefits to diseased former employees or their survivors, stating that

legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. . . . This is true even though the effect of the legislation is to impose a new duty or liability based on past acts. . . .

428 U.S. at 16, 96 S. Ct. at 2892.

Because the Black Lung Benefits Act, 30 U.S.C. §§ 907 et seq., was a rational and nonarbitrary means of allocating the costs of compensating diseased former employees and their survivors, it was upheld. 428 U.S. at 18-19, 96 S. Ct. at 2894. See New Developments, 99 Harv. L. Rev. at 1556-57.

Similarly, the NEPACCO court found that Congress had acted rationally in placing the burden of cleaning up inactive hazardous waste sites upon generators and transporters of hazardous wastes, as well as owners and operators of hazardous waste disposal facilities. 579 F. Supp. at 8410. Transporters, generators, and operators of hazardous waste sites are appropriately held accountable because they profited from past disposal practices. Owners are appropriately held liable for cleanup of their sites even if the hazardous wastes were dumped under prior ownership. If purchasers of these sites are not required to clean up these sites, it would be too easy for owners to sell their sites and become unavailable for suit. New Developments, 99 Harv. L. Rev. at 1546. Those who were involved in the hazardous waste industry knew of the heavy regulation of the industry prior to CERCLA and the predictable extension of liability. Id. at 1558-59.

The Court's holding that retroactive liability under CERCLA [17 ELR 20533] does not offend due process is consistent with the conclusion reached by several federal courts in addition to the NEPACCO court. See Conservation Chemical, 619 F. Supp. __ Shell Oil, 605 F. Supp. at 1072-73; United States v. South Carolina Recycling & Disposal, 20 ERC at 1760-61.

General Devices has made a variety of somewhat repetitive contentions, which the Court has attempted to capsulize and discuss. Although each and every contention has not been set forth above, the Court has considered each and every contention and finds that none of them individually or collectively is of sufficient substance to provide a defense to General Devices' liability under section 9607(a) in this case.

In light of the foregoing finding that General Devices has not asserted a valid defense to liability under section 9607(a)(1), the Court has not found it necessary to discuss whether General Devices has waived its statutory defenses either by failure to specially plead them or by failure to notify the Administrator of EPA of the existence of Tyson's Lagoons as required by 42 U.S.C. § 9603(c).

C. United States v. Franklin P. Tyson

On October 31, 1984, the Clerk of the Court entered a default against defendant Franklin Tyson in this lawsuit. The Court denied the United States' motion for a default judgment on June 21, 1985, on the ground that the amount of damages to be awarded against Mr. Tyson would have to be proved before a default judgment could issue. Prior to trial, Mr. Tyson obtained counsel who entered into a stipulation with the United States in which Mr. Tyson admits that he accepted industrial wastes containing hazardous substances for transport to Tyson's Lagoons, transported these wastes to Tyson's Lagoons, and dumped them there; that Tyson's Lagoons is a facility under CERCLA from which there has been a release of hazardous substances; and that this release has caused the incurrence of response costs under CERCLA. The Court has already made these findings on the basis of the evidence presented at trial. Therefore, the Court finds that Franklin Tyson is liable as a responsible party under 42 U.S.C. § 9607(a)(4).

D. United States v. Ciba-Geigy Corporation

Ciba-Geigy has stipulated that it is a responsible party pursuant to section 107 of CERCLA, 42 U.S.C. § 9607(a)(3) because Ciba-Geigy arranged for the disposal of hazardous substances which were disposed of at Tyson's Lagoons, where there are now contained the same sort of hazardous substances, and from which there have been releases of some hazardous substances causing the incurrence of response costs. This satisfied the requirements for imposing liability upon a generator of hazardous wastes under CERCLA. United States v. Wade, 577 F. Supp. 1326, 1333 [14 ELR 20096] (E.D. Pa. 1983). Ciba-Geigy also stipulated that it has no statutory defenses under 42 U.S.C. § 9607(b).

However, Ciba-Geigy contends that the retroactive imposition of liability on Ciba-Geigy for conduct which was lawful when done in the past violates the constitutional guarantee against retroactive and disproportionate punishment in the ex post facto, bill of attainder, and due process clauses.

Insofar as Ciba-Geigy's argument is based on the due process clause, the Court has already rejected the claim that CERCLA's retroactive application is unconstitutional. The Constitution allows Congress some authority to legislate retroactively in order to adjust the burdens and benefits of economic life. Republic Industries, Inc. v. Teamsters Joint Council No. 83 of Virginia Pension Fund, 718 F.2d 628, 635 (4th Cir. 1983) (citing Usery v. Turner Elkhorn, supra), cert. denied, 467 U.S. 1259 (1984).

A bill of attainder is a legislative enactment which determines guilt or inflicts punishment upon an identifiable individual or group without a judicial trial. See U.S. Const. Art. 1 cl. 3, Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S. Ct. 2777, 2803 (1977). "Forbidden legislation is not involved merely because [an act] imposes burdensome consequences." 433 U.S. at 472-73, 97 S. Ct. at 2805. The prohibition against bills of attainder is applicable only to legislation which imposes punishment. Legislative sentences of death and imprisonment, punitive confiscation of land, and legislative enactments barring designated individuals or groups from participation in specified employments or vocations for reasons of disloyalty, have been held to be punishment within the meaning of the bill of attainder clause. 433 U.S. at 473-75. 97 S. Ct. at 2805-06. CERCLA clearly does not fall within an established category of punishment. In determining whether legislative enactments imposing new burdens and deprivations are inconsistent with the bill of attainder clause, the Supreme Court

has looked beyond mere historical experience and has applied a functional test of the existence of punishment, analyzing whether the law under challenge, viewed in terms of the type and severity of burdens imposed reasonably can be said to further nonpunitive legislative purposes. . . .

Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers.

433 U.S. at 475-76, 97 S. Ct. at 2806-07 (citations omitted). There is no question that CERCLA furthers a legitimate and important nonpunitive legislative purpose: to clean up hazardous waste disposal sites which pose a threat to human life.

CERCLA was not designed to identify a particular group of individuals or companies as blameworthy and to punish them. However, Congress did make a determination that certain individuals or corporations should bear the cost of cleanup on the basis of their having profited from disposal of hazardous waste at the site or because they were in a position to prevent or to remedy the release of hazardous substances into the environment. This is merely an adjustment of the burdens of economic life for the protection of the public safety, legitimate nonpunitive legislative policymaking.

Similarly, the protection of the ex post facto clause is applicable only to punitive legislation. Galvan v. Press, 347 U.S. 522, 531, 74 S. Ct. 737, 743 (1954). It is applicable only to criminal laws and to disabilities imposed upon citizens which are determined to be criminal penalties for which the civil form was a disguise. Harisiades v. Shaughnessy, 342 U.S. 580, 595, 72 S. Ct. 512, 521-22 (1952) (citations omitted); Burgess v. Salmon, 97 U.S. 381, 385 (1878). The Court has determined that CERCLA is not punishment within the meaning of the prohibition against either ex post facto laws or bills of attainder. United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 17 n.13, 97 S. Ct. 1505, 1515 n.13 (1977); Conservation Chemical, 619 F. Supp. at 214. Therefore, Ciba-Geigy has no defense to liability as a responsible party under 42 U.S.C. § 9607(a)(3).

II. Wyeth, Essex, Budd, and Smithkline

Ciba-Geigy and General Devices filed claims against Wyeth, Essex, Budd, and SmithKline alleging that these four were responsible parties under section 9607(a)(3) of CERCLA and therefore are liable for contribution. In this phase of the case, the Court is concerned only with the question of whether any or all of these third party defendants are responsible parties under section 9607(a). During the trial, the Budd Company was dismissed from the case by agreement of the parties on the ground that there was no evidence that industrial wastes generated by Budd were ever dumped at Tyson's Lagoons.

Section 9607(a)(3) imposes liability upon

any person who by contract, agreement or otherwise arranged for disposal or treatment, or arranged with a transporter for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, . . . .

. . . from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance. . . .

Therefore the statute imposes liability upon a generator if (1) it has arranged for disposal of its hazardous substances; (2) disposal of its hazardous substances took place at a facility which now contains hazardous substances of the sort disposed of by the generator (3) there is a release of that or some other type of hazardous substance from the facility; (4) which causes the incurrence of release costs. United States v. Wade, 577 F. Supp. at 1333. The release need not be of the specific hazardous substance generated by the defendant. Id. at 1332-34. As the Court has previously found, the last two elements have been established.

A. Wyeth

During 1960-1969, Wyeth owned and operated a pharmaceutical [17 ELR 20534] plant in West Chester, Pennsylvania. Wyeth used solvents in its various chemical processes. Wyeth had two storage tanks, one with a capacity of approximately 8000 gallons and one with a capacity of approximately 2000 gallons.

By the fall of 1968, Wyeth used both of these tanks to hold waste solvents referred to as "Burnable Mixed Solvents" or BMS. The solvents sent to the BMS tanks at various times during 1968 and 1969 included xylene and toluene. Toluene was a component of the waste solvent generated by the Fine Chemical Department, which accounted for the largest portion of the waste solvent at the Wyeth plant.

Although Wyeth generally disposed of its burnable waste and spent solvents in a burner, there were several times in 1968 and 1969 when Wyeth engaged FPTI to haul away waste solvents from these tanks. The main reasons for Wyeth's employment of FPTI were inadequate storage and breakdown of the Wyeth waste burner. Frank Tyson or one of his drivers picked up the waste solvent from Wyeth on these occasions and dumped the Wyeth waste at Tyson's Lagoons.

Toluene and xylene are hazardous substances within the meaning of CERCLA. 42 U.S.C. § 9601(14); 40 C.F.R. 302.4. At the time of the investigation conducted by Baker/TSA in 1983 and 1984, and in 1985 during an independent investigation, toluene and xylene were among the chemical substances found at Tyson's Lagoons.

Because Wyeth engaged FPTI to haul away waste containing toluene and xylene, FPTI dumped Wyeth's wastes at Tyson's Lagoons where toluene and xylene have been found, and because there has been a release of hazardous substances from Tyson's Lagoons which caused the incurrence of response costs, Wyeth is a responsible party under 42 U.S.C. § 9607(a)(3).

B. Essex

Beginning in or about February, 1963 through at least 1971, Essex operated a copper wire manufacturing plant in Conshohocken, Pennsylvania, off of Hector Street. Essex' process of manufacturing copper wire at its Conshohocken plant consisted of taking raw copper in the form of rods and drawing or stretching the raw copper by running it through a series of dyes, which were lubricated and cooled by an aqueous solution. The Essex Conshohocken plant had three process stages: first, the copper rod was placed through a rod breakdown machine; second, the product was put through one of three or more intermediate drawing machines, and third, the product was put through one of eight or more fine drawing machines. There were tanks located in the floor of the plant which acted as a reservoir for the drawing solution used at each of the three stages of the process. During each of the production stages, waste consisting of copper particles became suspended in the solution and eventually collected in the bottom of the copper wire drawing tanks. This waste is referred to as "copper mud." As it was used, the solution deteriorated and became very dark, opaque, and emitted an unpleasant odor. When it was no longer usable, the contents of the tanks had to be completely removed.

From time to time between 1964 and 1966, Essex hired Frank Tyson to remove the liquid portion of the waste as well as the copper mud from Essex' copper wire drawing tanks. Most or all of Essex' waste was dumped at Tyson's Lagoons. On at least one occasion, Frank Tyson disposed of Essex' waste in a separate area of the lagoons in an attempt to recapture the copper content for sale.

Copper is a hazardous substance under CERCLA. See 40 C.F.R. § 302.4. Copper was found at the Tyson's Lagoons site in 1983 and 1984. Because Essex hired Tyson to dispose of waste containing copper which Tyson hauled and dumped at Tyson's Lagoons, where hazardous substance copper has been found, and because there has been a release of hazardous substances from Tyson's Lagoons which caused the incurrence of response costs, Essex is liable as a responsible party under 42 U.S.C. § 9607(a)(3).

C. Smithkline

During the period 1960-63, SmithKline owned and operated a pharmaceutical manufacturing facility located at 15th and Spring Garden Streets in Philadelphia, Pennsylvania and another such facility located on Swedeland Road in Upper Merion, Montgomery County, Pennsylvania. From 1960-63, the Spring Garden Street facility produced 2-chlorophenothiazine, which resulted in the generation of liquid wastes, some of which wastes contained toluene and 2-chlorophenothiazine. From 1960-63, the Swedeland Road facility engaged in twelve chemical manufacturing processes which generated liquid wastes, some of which liquid wastes contained trace amounts of toluene, xylene, and 2-chlorophenothiazine.

Frank Tyson hauled liquid wastes from the Spring Garden Street facility for about one year and from the Swedeland Road facility for about two and a half years between 1960 and 1963. Some or most of these liquid wastes contained toluene and xylene.

All of the industrial waste hauled by Frank Tyson for SmithKline was dumped at Tyson's Lagoons. Because SmithKline engaged Tyson to dump wastes containing the hazardous substances toluene and xylene, Tyson dumped these wastes at Tyson's Lagoons, toluene and xylene have been found at Tyson's Lagoons, and there has been a release of hazardous substances from Tyson's Lagoons which caused the incurrence of response costs, SmithKline is a responsible party under 42 U.S.C. § 9607(a)(3).

Conclusion

An order will be entered holding that Franklin P. Tyson, Ciba-Geigy Corporation, General Devices, Inc., Wyeth Laboratories, Inc., Essex Group, Inc., and SmithKline Beckman Corp. are responsible parties pursuant to 42 U.S.C. § 9607(a).

Order

AND NOW, this 21st day of August, 1986 for the reasons stated in this Court's Findings of Fact and Conclusions of Law dated August 21, 1986,

IT IS ORDERED: In this action brought by the United States against Franklin P. Tyson, Ciba-Geigy Corporation and General Devices, Inc., all defendants are responsible parties pursuant to 42 U.S.C. § 9607. In the third party actions by Ciba-Geigy Corporation and General Devices, Inc. against Wyeth Laboratories, Inc., Essex Group, Inc. and SmithKline Beckman Corp. all of these third party defendants are responsible parties pursuant to 42 U.S.C. § 9607.