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MERRY v. WESTINGHOUSE ELEC. CORP.

February 25, 1988

Linda Merry, et al., Plaintiffs,
v.
Westinghouse Electric Corp., Defendant


William W. Caldwell, United States District Judge.


The opinion of the court was delivered by: CALDWELL

WILLIAM W. CALDWELL, UNITED STATES DISTRICT JUDGE

 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, 247, 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.

 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). In determining whether there is an issue for trial the court must view the facts and the inferences drawn therefrom in the light most favorable to the non-moving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538, 553 (1986).

 It is undisputed that the plaintiffs' claims under CERCLA are for response costs only. Accordingly, the court will restrict its discussion of Westinghouse's motion to the CWA and the RCRA.

 Section 7002(a)(1) of the RCRA, 42 U.S.C. § 6972(a)(1), which authorizes citizen suits for injunctive relief and civil penalties, provides, in part, as follows:

 
Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf --
 
(1)(A) against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or
 
(B) against any person . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . . .
 
. . . .
 
The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both . . . and to apply any appropriate civil penalties under section 6928(a) and (g) of this title.

 Westinghouse argues that the plaintiffs' claims under section 7002(a)(1)(B) are barred by section 7002(b)(2)(B), 42 U.S.C. § 6972(b)(2)(B), which provides:

 
(i) has commenced and is diligently prosecuting an action under section 6973 of this title or under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [ 42 U.S.C.A. § 9606],
 
(ii) is actually engaging in a removal action under section 104 of the Comprehensive Environmental Response, Compensation and Liability ...

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