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TRI-COUNTY BUS. CAMPUS JOINT VENTURE v. CLOW CORP.

May 8, 1992

TRI-COUNTY BUSINESS CAMPUS JOINT VENTURE
v.
CLOW CORPORATION



The opinion of the court was delivered by: HARVEY BARTLE IV

 BARTLE, J.

 This is an environmental action which the Tri-County Business Campus Joint Venture ("Tri-County") has brought against the Clow Corporation ("Clow"). Tri-County seeks recovery of more than $ 1.7 million for testing, investigating and removing allegedly hazardous substances from an 85 acre tract in Pottstown Borough, Pennsylvania, which it acquired from Clow in 1985. *fn1"

 Tri-County acquired the land for purposes of commercial and industrial development. Only after the acquisition did Tri-County learn that substantial amounts of waste were buried on the site. Tri-County believed that these materials were buried or located on the property during the period of Clow's actual or constructive ownership.

 Ultimately, 450 resin-containing drums, parts, buckets and barrels of liquid and semi-solid wastes were evacuated from the property, as well as many resin filled hoses and resin blocks and gaskets. Plaintiff Tri-County maintains that hazardous wastes were removed from the property, thereby entitling it to the recovery of substantial clean-up costs. Defendant Clow, however, argues that liability does not exist under CERCLA or HSCA because the clean-up costs were solely as a result of violations of the non-hazardous substance provisions of the SWMA.

 Plaintiff's initial complaint against Clow contained ten counts: Liability under CERCLA (Count I); Declaratory Relief under CERCLA (Count II); Declaratory relief under HSCA (Count III); Negligence per se in violating statutory requirements (Count IV); Misrepresentation (Count V); Negligent Misrepresentation (Count VI); Innocent Misrepresentation (Count VII); Strict Liability in engaging in abnormally dangerous behavior (Count VIII); a Claim for Contribution under CERCLA (Count IX); and a Claim for Indemnification (Count X). Subsequently, based on new authority recognizing a private right of action under the HSCA, plaintiff filed an uncontested motion to amend its complaint to add, as Count XI, Liability under HSCA. On August 14, 1991, Judge Franklin S. Van Antwerpen of this Court allowed the amendment.

 Four pre-trial motions are now before this Court for decision. Defendant Clow has moved for summary judgment on all eleven counts of plaintiff's Amended Complaint, while plaintiff has moved for summary judgment only on Counts I and XI which involve liability for response costs under CERCLA and HSCA. Additionally, plaintiff has moved to strike defendant's jury trial request, and defendant has moved to depose plaintiff's expert. For the reasons set forth below, these motions will be granted in part and denied in part.

 The standards for deciding summary judgment motions under Rule 56 of the Federal Rules of Civil Procedure are well settled. To obtain summary judgment the moving party must establish that no genuine issues of material fact remain in dispute. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party. A factual dispute is "material" if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 248, 106 S. Ct. 2505, 2511, 2510, 91 L. Ed. 2d 202 (1986). In deciding whether the summary judgment standard has been met, the evidence must be viewed in the light most favorable to the non-moving party. Mellon Bank Corp. and Mellon Bank, N.A. v. First Union Real Estate Equity and Mortgage Investments, 951 F.2d 1399, 1404 (3d Cir. 1991).

 Tri-County alleges in Counts I, II and IX that Clow has violated CERCLA because of a release or threatened release of CERCLA hazardous substances from the property. It further contends that it has met all of the statutory prerequisites for recovery from Clow.

 In order to recover from Clow under CERCLA, Tri-County must establish (1) that the property involved is a "facility" (42 U.S.C. § 9601(9)); (2) that Clow is a responsible person (42U.S.C. § 9607(a)(2)); (3) that the substances in question are hazardous substances under CERCLA (42 U.S.C. §§ 9601(14), 9602(a); 40 C.F.R. Table 302.4 (1991)); (4) that "there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance" (42 U.S.C. § 9607(a)(4)); and (5) that the response costs, which are incurred by way of removal or remedial actions (42 U.S.C. § 9601(23)(24)(25)), were necessary and consistent with the governing National Contingency Plan ("NCP") (42 U.S.C. § 9607(a)). See, e.g., B.F. Goodrich Company v. Murtha, 754 F. Supp. 960 (D. Conn. 1991); Ambrogi v. Gould, Inc., 750 F. Supp. 1233, 1239 (M.D. Pa. 1990). For the purpose of the motions before the Court, there is no dispute that the property involved is a "facility" and that Clow is a responsible person under the statute.

 According to defendant Clow, however, Tri-County erroneously maintains that "liability under CERCLA is triggered by the mere presence of trace quantities of allegedly hazardous constituents in materials which are not, in and of themselves, listed as 'hazardous substances' under CERCLA." Clow further argues (1) that Tri-County has not shown that the materials found at the site would release their hazardous constituent ingredients under the conditions at the site; (2) that Tri-County has not shown that there was a release or a threatened release which caused the incurrence of response costs; and (3) that Tri-County failed to comply with the applicable National Contingency Plan ("NCP"). Hence, Clow claims entitlement to summary judgment on the CERCLA claims in Counts I, II and IX of the Amended Complaint.

 A review of the record conclusively establishes that substantial and genuine issues of material fact exist with respect to the CERCLA claims. See Fed. R. Civ. P. 56. Contrary to the position taken by Clow, Tri-County's version of the facts establishes that more than mere trace elements of hazardous constituents are at issue. Evidence exists which would support, but which would not require, a finding that a release or threatened release of a hazardous substance occurred which caused the incurrence of response costs.

 Tri-County supplied affidavits from site excavator Robert L. Bealer, from geologists Robert S. Terefenko and William Randall, and from consultant James Smith. According to these affidavits (1) volatile vapors and strong odors of styrene emanated from materials which were excavated from the site, from drums found on the site when those drums were crushed, and from certain hard substances found on the site when these substances were broken open; (2) the plastisol found on the property, which is a mixture of polyvinylchloride ("PVC") and other chemicals, is different from the plastisol considered in United States v. New Castle County, 769 F. Supp. 591 (D. Del. 1991), because no chemical reaction is necessary to cause the hazardous plasticizers to disassociate from the PVC; (3) phthalates and polychlorinated biphenyls ("PCBs") were present in the site soil; (4) soil samples indicate a release of styrene and dimethylaniline on the site; and (5) no chemical reaction is necessary to cause a disassociation of the hazardous components of the Wedge-Lock-O mixture which was found in the site soil. *fn2"

 
so that the constituents in the original plastisol material will be stabilized (i.e., the constituents are not available for release into soils or surface or ground waters under normal environmental conditions). Indeed, the express purpose for using heat cured plastisol is to seal the clay pipe joints so that the joints resist and repel water. Leaching of constituents from those water-resistant materials is not a probable event.

 (emphasis added). He also disputes Dr. Smith's assertion that there was a release of styrene or dimethylaniline onto the property from the Wedge-Lock-O in its pre- or post-polymerized state. Finally, after asserting that styrene was not detected at eight (8) of nine (9) locations which were tested, Dr. Gallis acknowledges that, as to the ninth location, "styrene was reported present in the low parts per billion (ppb) range." It is his position, however, that

 
this single reported detection of styrene at a level slightly above the method quantitation limit does not establish that Wedge-Lock-O released monomeric styrene into the environment. The contrast in semivolatile analysis results for NS-5 and ND-5 strongly suggests that a solid polystyrene material was present in the soil that was analyzed.

 (emphasis added).

 Thus, contrasting Dr. Gallis' report and analysis on behalf of defendant Clow with the affidavits provided by Tri-County unquestionably establishes that genuine issues of material fact exist on the question of whether any release or threatened release of CERCLA hazardous substances occurred. United States v. New Castle, supra, and United States v. Serafini, 750 F. Supp. 168 (M.D. Pa. 1990), the summary judgment cases upon which defendant Clow relies to establish that no such release or threatened release occurred, are factually inapposite. In New Castle, as here, a CERCLA hazardous substance was a constituent of a discarded material, and the pertinent question for decision was whether the discarded "waste is capable of generating or releasing a hazardous substance at the site." Summary judgment was warranted there only because no evidence was produced to rebut the third-party defendant's expert opinion evidence that the unreacted hazardous substance would not disassociate at the site. Here, of course, such rebuttal evidence is presented in Dr. Smith's affidavit. *fn3"

 Although plaintiff's motion for summary judgment as to Count I must be denied because there are genuine issues of material fact about the release or threatened release of CERCLA hazardous substances, it nevertheless remains for this Court to consider whether the costs incurred by Tri-County, which are the subject of this litigation, were incurred in a manner consistent with the applicable NCP (National Contingency Plan). *fn4" If those costs were not so incurred, Clow would be entitled to summary judgment as to plaintiff's CERCLA claims set forth in Counts I, II and IX of the Amended Complaint.

 Resolution of the questions relating to plaintiff's incurrence of costs requires the Court first to decide whether the 1985 NCP (40 C.F.R. Part 300 (1988)) or the 1990 NCP (40 C.F.R. Part 300 (1990)) applies in this case. Additionally, it requires the Court to consider whether Tri-County must strictly or substantially comply with whichever plan is applicable, and whether Tri-County engaged in a removal or a remedial action.

 The 1990 NCP was issued on March 8, 1990, and became effective on April 9, 1990. County Line Invest. Co. v. Tinney, 933 F.2d 1508, n. 5 at 1511 (10th Cir. 1991). It states in its Preamble "that the new definition of 'consistency with the NCP' does apply to clean-ups that are already underway as of the effective date." Ambrogi v. Gould, 750 F. Supp. 1233, n. 27 at 1254 (emphasis added) (M.D. Pa. 1990). Thus, if Tri-County's clean-up was "underway" on April 9, 1990, the 1990 NCP is the applicable plan.

 Defendant Clow maintains that the 1985 plan, and not the more lenient revised 1990 plan, is applicable. It bases its position entirely on the deposition testimony of Robert W. Campbell that site remediation was ...


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