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UNITED STATES v. BURNS

April 14, 1981

UNITED STATES of America, Plaintiff,
v.
Robert J. BURNS; Daniel Dracup; Charlotte Dracup; Daniel S. Dracup and Co.; Robert E. Ward, Jr.; and Ward Transformer Co., Inc., Defendants



The opinion of the court was delivered by: TEITELBAUM

MEMORANDUM OPINION

The Government has brought this action for injunctive and monetary relief alleging the improper handling, storage and disposal of certain hazardous wastes ("PCBs") in violation of three federal environmental statutes. The matter is before this Court on defendants' motions to dismiss.

 Defendant Ward Transformer Co., Inc., a North Carolina corporation, is engaged in the business of buying, selling and rebuilding used electrical transformers. Defendant Robert E. Ward, Jr. is Chairman of the Board of Directors and was the President of Ward Transformer Co. PCBs were used as a lubricant and insulating fluid in electrical transformers. Ward Transformer Co. and Robert E. Ward, Jr. ("the Ward defendants") drained PCBs from electrical transformers and stored them at their facility in North Carolina. The Ward defendants entered into an agreement with defendant Robert J. Burns for the removal of PCB transformer oil which had been stored at their facility.

 Defendant Daniel Dracup and his wife, defendant Charlotte Dracup, are the owners of a warehouse site in Youngsville, Pennsylvania. Defendant Daniel S. Dracup & Co. ("Dracup Co."), a New York corporation, is the corporate entity through which Daniel Dracup conducts his trucking business. Daniel Dracup, Charlotte Dracup, and the Dracup Co. shall be referred to as "the Dracup defendants".

 Burns and Daniel Dracup removed the PCB oil from the Ward facility and transported it to the Dracup warehouse.

 On March 9, 1979 the Government brought a civil action against Burns and the Dracup defendants under the Toxic Substances Control Act ("TSCA"). In that action this Court issued an order, to which the Dracup defendants consented, authorizing the Government to transfer the PCB oil to an appropriate storage facility.

 The Ward defendants filed a motion to dismiss the complaint for failure to state a claim, for lack of personal jurisdiction, and, as to Robert E. Ward, Jr., for improper service. *fn1" At oral argument on their motion the Ward defendants withdrew their objection as to personal jurisdiction. The Ward defendants make the following contentions:

 
1) RCRA, by its terms, does not cover the regulation of PCBs since PCBs are regulated under TSCA. The Government's PCB claim under RCRA must therefore be dismissed.
 
2) CWA is the Government's exclusive means of recovering clean-up costs. The Government's restitution claim under TSCA must therefore be dismissed.
 
3) TSCA and CWA do not apply to them because they are not owner or operators as required by these statutes.

 The Dracup defendants have filed a motion to dismiss the complaint for failure to state a claim and, as to Charlotte Dracup and the Dracup Co., for lack of personal jurisdiction. The Dracup defendants have made contentions similar to those made by the Ward defendants with respect to the statutes involved. The Dracup defendants further contend res judicata bars this action as to them.

 The motions to dismiss raise five separate issues: 1) whether the Government can bring a PCB claim under RCRA; 2) whether CWA is the Government's exclusive means of recovering clean-up costs; 3) whether TSCA and CWA are inapplicable to these defendants; 4) whether this Court has personal jurisdiction over the Dracup ...


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