the government's motion for partial summary judgment against defendants Serafini, Bernabei, Buttafoco and Naples, individually and trading as the Empire Contracting Company ("Empire defendants"), on the issue of liability for response costs under section 107 of CERCLA, 42 U.S.C. § 9607. For the reasons that follow the government's motion will be denied.
The Taylor hazardous waste site is a tract of land consisting of approximately 125 acres located in Taylor Borough, near Scranton, Pennsylvania. In May, 1967, the Parmoff Corporation leased a portion of the site to the City of Scranton for the purpose of dumping garbage and refuse. Until at least March 31, 1968, Scranton operated a sanitary landfill and waste disposal site on the leased premises. On December 12, 1969, the Parmoff Corporation sold all but a small portion of its interest in the Taylor site to the Empire Contracting Company, a partnership wholly owned by the Empire defendants. According to the fictitious name certificate filed in February, 1966, in Lackawanna County, the Empire Contracting Company was created "to buy, sell, manufacture, lease, service any and all kinds and types of real and personal property, to act as contractor, subcontractor and developer with respect to any and all kinds of work, including but not limited to buildings, improvements, roads, bridges, mining, drilling, flushing and otherwise." The Empire defendants are the current owners of a portion of the Taylor site.
Beginning in 1981, the United States Environmental Protection Agency ("EPA") and the Pennsylvania Department of Environmental Resources conducted various surveys and investigations at the Taylor site. According to the uncontested affidavit of Michael Zickler, the EPA on-scene coordinator assigned to the site, in October and November, 1983, EPA conducted an immediate removal action under section 104 of CERCLA, 42 U.S.C. § 9604. Approximately 1,141 fifty-five gallon drums were scattered across and under six separate areas of the site. Many were open, crushed, completely or partially buried, and in various stages of decay. Samples from the drums, as well as soil and water samples, were sent to the EPA laboratory in Annapolis, Maryland. Laboratory analysis revealed that 847 drums contained hazardous substances as defined in section 101(14) of CERCLA, 42 U.S.C. § 9601(14),
105 drums contained non-hazardous substances, and 189 were contaminated with residues.
The government instituted this action on November 10, 1986, seeking injunctive relief and recovery of response costs. On July 20, 1987, the court entered a consent decree negotiated between the United States and four defendants requiring the defendants to complete the remedial work at the Taylor site. On September 25, 1987, the court granted the United States' motion for partial summary judgment on liability for federal response costs against the City of Scranton. The government has filed a similar motion now against the Empire defendants.
A. The Summary Judgment Standard
A court shall render summary judgment only "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). A material fact is one which might affect the outcome of a suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211 (1986). Factual disputes that are irrelevant or unnecessary are not to be considered. Id. While the materiality inquiry addresses the substantive law, it is only the substantive law's identification of which facts are critical and which facts are irrelevant that controls. Any proof or evidentiary requirements imposed by the substantive law are not germane. Id.
Summary judgment will not lie if the dispute as to a material fact is "genuine," that is, "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id., 106 S. Ct. at 2510, 91 L. Ed. 2d at 212. An adverse party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).
There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. [ First National Bank v.] Cities Service [Co.], 391 U.S.  at 288-289, 88 S. Ct. 1575, 20 L. Ed. 2d 569 [(1968)]. If the evidence is merely colorable, Dombrowski v. Eastland, 387 U.S. 82, 87 S. Ct. 1425, 18 L. Ed. 2d 577 (1967) (per curiam), or is not significantly probative, Cities Service, supra, at 290, 88 S. Ct. 1575, 20 L. Ed. 2d 569, summary judgment may be granted.
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