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FISHEL v. WESTINGHOUSE ELEC. CORP.

May 23, 1986

Douglas Fishel, Sr., et al., Plaintiffs,
v.
Westinghouse Electric Corporation, et al., Defendants


William W. Caldwell, United States District Judge.


The opinion of the court was delivered by: CALDWELL

William W. Caldwell, United States District Judge

 I. Introduction.

 Plaintiffs have filed a motion for partial summary judgment against defendant, Frederick Shealer, seeking to establish that he: (1) violated the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6901 et seq., by disposing of hazardous wastes without a permit and by maintaining an open dump; (2) violated the Clean Water Act of 1977 (CWA), 33 U.S.C. § 1251 et seq., by discharging pollutants into the navigable waters of the United States from a point source without a permit; and (3) is responsible for certain plaintiffs' response costs under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA). 42 U.S.C. § 9601 et seq. Defendant opposes the motion.

 II. Discussion.

 The claims arise from Shealer's disposal of chemical wastes in the Gettysburg, Pennsylvania area during an approximate ten year period. Shealer hauled such waste for various industrial companies, including defendant Westinghouse, to four sites in the area. These sites are: (1) a property owned by defendant Shealer (the Hunterstown Road site); (2) a lagoon across the road from the Hunterstown Road site; (3) a property owned by defendant near his son's house (the "Shealer property") and; (4) a property owned by William and/or Sarah Culp (the "Culp property"). The plaintiffs are residential neighbors of these four sites who have been affected by environmental contamination resulting from Shealer's dumping activity. *fn1"

 
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, Adickes v. Kress & Co., 398 U.S. 144 [90 S. Ct. 1598, 26 L. Ed. 2d 142] (1970) and must resolve all reasonable doubts as to the existence of a genuine issue of material fact against the movant.

 Hersh v. Allen Products Company, Inc., 789 F.2d 230, 232 (3d Cir. 1986).

 A. The RCRA Provisions.

 1. Plaintiffs Have Not Shown That Shealer Violated the RCRA Bar on Open Dumping.

 Plaintiffs contend that Shealer has violated 42 U.S.C. § 6945(a) by dumping waste at all four sites. Section 6945(a) provides, in pertinent part, as follows:

 
Upon promulgation of criteria under section 6907(a)(3) of this title, any solid waste management practice or disposal of solid waste or hazardous waste which constitutes the open dumping of solid waste or hazardous waste is prohibited . . . .

 This subsection deals with the disposal of solid waste and hazardous waste and prohibits their open dumping only upon promulgation of criteria under section 6907(a)(3). Those criteria for solid waste disposal, 40 C.F.R. § 257.1 et seq., were promulgated on September 13, 1979, and for hazardous waste disposal, 40 C.F.R. § 260.1 et seq., on May 19, 1980.

 Shealer maintains that the records relied upon by plaintiffs to support the section 6945(a) claim deal with the EPA's and Pennsylvania Department of Environmental Resources's (Pa Der) investigation of his disposal of Westinghouse waste. Shealer stopped hauling that waste in December of 1979. Hence, plaintiffs have not shown a violation because the hazardous waste regulations had not yet been promulgated. Also, while the solid waste regulations had been promulgated by that time, *fn2" there is no evidence to show the number of times he may have violated the regulations and the extent of his violations in the brief period before ...


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