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December 20, 1983

MELVIN R. WADE, et al.

The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 In response to the well-publicized toxic waste problem Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act of 1980, commonly known as CERCLA or the Superfund Act. 42 U.S.C. § 9601 et seq. The Act's name is derived from its establishment of a $1.6 billion "hazardous substance response trust fund" to finance government clean-up of abandoned hazardous chemical waste dump sites. § 9631. In addition, the Act authorizes the government to undertake emergency clean-up measures when it determines that an abandoned site presents "an imminent and substantial danger to public health" and to seek emergency injunctive relief to abate the danger or threat. §§ 9604 and 9606. Finally, the government is authorized to recover certain costs incurred in clean-up and containment measures from designated classes of persons. § 9607.

 This is a civil action brought by the United States against several parties allegedly responsible for the creation of a hazardous waste dump in Chester, Pennsylvania. The government seeks injunctive relief against Melvin R. Wade, the owner of the dump site, ABM Disposal Service, the company which transported the hazardous substances to the site, and Ellis Barnhouse and Franklin P. Tyson, the owners of ABM during the time period at issue ("non-generator defendants"). The government also seeks reimbursement of the costs incurred and to be incurred in cleaning up the site from the non-generator defendants as well as from Apollo Metals, Inc., Congoleum Corporation, Gould, Inc. and Sandvik, Inc. ("generator defendants").

 The claims for injunctive relief are brought pursuant to § 7003 of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6973, and § 106 of CERCLA, 42 U.S.C. § 9606. The claims for monetary relief are based on § 107(a) of CERCLA, 42 U.S.C. § 9607(a), as well as a common law theory of restitution. Presently before the Court are the government's motions for partial summary judgment on the issue of joint and several liability under § 107(a) against each of the defendants. In addition, each of the generator defendants has moved for summary judgment.

 For reasons discussed below, I will grant the generator defendants' motions for summary judgment on counts four and five to the extent those counts are based on a common law theory of restitution. Otherwise, all motions by and against the generator defendants will be denied. Summary judgment as to liability under § 107(a) will be entered against defendants Tyson, Wade and ABM, but I reserve judgment on whether joint and several liability will be imposed in this case. The government's motion for summary judgment against defendant Barnhouse will be denied. I trust that this opinion will provide guidance to the parties in their preparation for trial.

 The generator defendants have filed a joint motion for summary judgment addressing issues common to all as well as individual motions addressing facts unique to each generator's case. The generator defendants first move for summary judgment on counts four and five which seek restitution for amounts expended or to be expended in investigating and abating conditions which present an endangerment to the extent recovery of these sums is based on a federal common law theory. The government opposition to this portion of the motion is based on its argument that § 7003 of RCRA, 42 U.S.C. § 6973(a), provides the government with an implied cause of action in restitution. Given the basis for my earlier dismissal of plaintiff's § 7003 claim against this group of defendants I must grant this portion of the generator defendants' motion for summary judgment. See United States v. Wade, 546 F. Supp. 785 (E.D. Pa. 1982). Indeed, the United States concedes my prior ruling is dispositive of this issue.

 The generator defendants' motions for summary judgment on the CERCLA claims generally advance two arguments. *fn1" First, they argue that the government has not and cannot establish the requisite causal relationship between their wastes and the costs incurred by the government in cleaning up the site. Second, assuming the government can establish liability under the Act, the generator defendants argue that it has recovered all costs to which it could possibly be entitled. Both arguments raise difficult questions of statutory interpretation which require some background discussion.

 The Superfund legislation presents a relatively complex solution to a complex problem. It leaves much to be desired from a syntactical standpoint, perhaps a reflection of the hasty compromises which were reached as the bill was pushed through Congress just before the close of its 96th Session. Any attempt to divine the legislative intent behind many of its provisions will inevitably involve a resort to the Act's legislative history. Unfortunately, the legislative history is unusually riddled by self-serving and contradictory statements. Few courts have addressed the Act at all, and many of the issues raised in this case have not been litigated previously. What is clear, however, is that the Act is intended to facilitate the prompt clean-up of hazardous waste dump sites and when possible to place the ultimate financial burden upon those responsible for the danger created by such sites. With these thoughts in mind I turn to the generator defendants' causation argument.


 In a nutshell, the generator defendants' causation argument is as follows. To establish liability under the Act the government must prove a link, or more specifically a causal nexus, between costs incurred in clean-up and a given generator's waste. The argument is based on traditional tort concepts of proximate causation. The generator defendants first argue that the government has no admissible evidence that their wastes were in fact disposed of at the Wade site. The government agrees that actual dumping of a defendant's waste at the Wade site is an element of its case but urges that its evidence on this issue is not only admissible but also dispositive.

 The controversy centers around the admissibility of the so-called ABM grid and the sufficiency of the affidavit of Frank Tyson, one of the owners of ABM Disposal Company prior to its bankruptcy. The generator defendants correctly state in their briefs that evidence offered to support or oppose a summary judgment motion must be admissible and if in affidavit form, it must be non-conclusory and based on the personal knowledge of the affiant. Carey v. Beans, 500 F. Supp. 580, 583 (E.D. Pa. 1980), aff'd, 659 F.2d 1065 (3d Cir. 1981).

 The generator defendants argue that Mr. Tyson lacks the personal knowledge necessary to state that their wastes were dumped at the Wade site. Clearly the Tyson affidavit is not a model affidavit. Nevertheless, it states that Tyson, as president of ABM, directed the disposal of wastes by his drivers and supervised the day-to-day operations of the company from September, 1976 until January 1, 1979. Prior to that time he was a salesman for the company. This support is adequate to survive defendants' motions for summary judgment; however, because Tyson's credibility, as a convicted felon and a defendant in the case, is seriously contested, his affidavit does not suffice to establish the fact of dumping by the defendants. The issue must be resolved at trial. *fn2" I am likewise unconvinced as to the admissibility of the ABM grid at this time. Assuming the government satisfies the requirements of FRE 803(6), because of the critical nature of this piece of evidence and its facial inscrutability I will not admit it at trial without some live testimony to explain it.

 Even assuming the government proves that a given defendant's waste was in fact disposed of at the Wade site, the generator defendants argue it must also prove that a particular defendant's actual waste is presently at the site and has been the subject of a removal or remedial measure before that defendant can be held liable. In the alternative, the generator defendants argue that at a minimum the government must link its costs incurred to waste of the sort created by a generator before that generator may be held liable. This argument in part overlaps the defendants' argument pertaining to recoverable damages. Based on my reading of the Act, I must reject both causation requirements urged by the generator defendants.

 The liability provision of CERCLA provides in relevant part as follows:

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section -- . . .
(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, at any facility owned or operated by another party or entity and containing such hazardous substances . . . (4) . . . 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."

 42 U.S.C. § 9607(a) (emphasis added). At one extreme the Act could be read to impose liability on certain parties who merely arrange for transport of their waste but never actually do so. I do not understand the government to urge such a construction and would reject it. I mention the possibility only to underscore the lack of precision with which the statute was drafted.

 Part of the generator defendants' argument revolves around the use of the word "such" in referring to the "hazardous substances" contained at the dump site or "facility." It could be read to require that the facility contain a particular defendant's waste. On the other hand it could be read merely to require that hazardous substances like those found in a defendant's waste must be present at the site. The legislative history provides no enlightenment on this point. I believe that the less stringent requirement was the one intended by Congress.

 The government's experts have admitted that scientific technique has not advanced to a point that the identity of the generator of a specific quantity of waste can be stated with certainty. All that can be said is that a site contains the same kind of hazardous substances as are found in a generator's waste. Thus, to require a plaintiff under CERCLA to "fingerprint" wastes is to eviscerate the statute. Given two possible constructions of a statute, one which renders it useless should be rejected. Generators are adequately protected by requiring a plaintiff to prove that a defendant's waste was disposed of at a site and that the substances that make the defendant's waste hazardous are also present at the site. *fn3"

 Besides eviscerating the statute the generator defendant's contention would lead to ludicrous results. For example, assuming wastes could be "fingerprinted," once all the hazardous substances in a generator's waste had migrated from the "facility" the generator could no longer be held liable. In fact, one generator makes this argument.

 I turn now to the generator defendants' contention that the government must link its costs incurred to wastes of the sort created by them.

 A reading of the literal language of the statute suggests that the generator defendants read too much into this portion of its causation requirement. *fn4" Stripping away the excess language, the statute appears to impose liability on a generator who has (1) disposed of its hazardous substances (2) at a facility which now contains hazardous substances of the sort disposed of by the generator (3) if there is a release of that or some other type of hazardous substance (4) which causes the incurrence of response costs. Thus, the release which results in the incurrence of response costs and liability need only be of " a " hazardous substance and not necessarily one contained in the defendant's waste. The only required nexus between the defendant and the site is that the defendant have dumped his waste there and that the hazardous substances found in the defendant's waste are also found at the site. I base my disagreement with defendants' reading in part on the Act's use of "such" to modify "hazardous substance" in paragraph three and the switch to "a" in paragraph four.

 Additional support for my reading may also be found in the legislative history of the Act. The original House Committee bill imposed liability on "any person who caused or contributed to the release." H.R. 7020, 96th Cong., 2d Sess., § 3071(a) (1), 126 Cong. Rec. at H9459 (daily ed. September 23, 1980). *fn5" Although the committee bill was changed in several important respects by the full House, this language was also contained in the final House-passed version. Id. at H9479. This language clearly requires a causal nexus between a generator and the release causing the incurrence of response costs, and the House Committee understood it to do so:

"The Committee intends that the usual common law principles of causation, including those of proximate causation should govern the determination of whether a defendant 'caused or contributed' to a release or threatened release. . . . Thus, for instance, the mere act of generation or transportation of hazardous waste or the mere existence of a generator's or transporter's waste in a site with respect to which clean-up costs are incurred would not, in and of itself, result in liability under § 3071. The committee intends that for liability to attach under this section, the plaintiff [government] must demonstrate a causal or contributory nexus between the acts of the defendant and the conditions which necessitated response action under § 3041."

 U.S. Congress, House of Representatives, Interstate and Foreign Commerce Committee, House Report 96-1016, May 16, 1980, reprinted in 1980 U.S. Code Cong. & Adm. News 6119, at 6136-6137. The problem with the generator defendants' reliance on this report, however, is that the liability provision which was ultimately enacted bears no real resemblance to the House-passed bill to which the report refers. Instead, the legislation enacted specifies certain groups which will be held liable when a release of a hazardous substance causes the incurrence of clean-up costs. One of those groups is those who have disposed of hazardous substances at the site if hazardous substances of that sort are present at the site.

 Deletion of the causation language contained in the House-passed bill and the Senate draft is not dispositive of the causation issue. Nevertheless, the substitution of the present language for the prior causation requirement evidences a legislative intent which is in accordance with my reading of the Act.

 The generator defendants' next argument is based on the § 9607 requirement of a release or threatened release from a facility. In essence they argue that no release or threatened release of their hazardous substances has occurred. As found above, the release need not be of a particular defendant's waste for that defendant to be held liable. Nevertheless, a release of someone's hazardous wastes must occur.

 The government advances two arguments in support of its position that a release or threatened release has occurred. *fn6" It first relies on four affidavits of Dr. Eugene Meyer that hazardous substances found in each of the generator defendants' wastes have leached or are leaching into the soil and groundwater at the site. No one contests that such leaching would constitute a "release."

 Instead, some of the defendants have challenged Dr. Meyer's affidavits as conclusory and have questioned his competence to testify on this issue. I reject both challenges. Other defendants have submitted affidavits contesting Dr. Meyer's conclusions. This creates ...

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