prove the following elements:
(1) the defendant comes within one of the four classes of "covered persons" identified in § 9607(a)(2), (2) there is a release or threatened release of hazardous substances from a facility, (3) the release or threatened release caused the plaintiff to incur response costs, (4) the costs incurred were the necessary costs of response, and (5) the response costs incurred were consistent with the national contingency plan.
42 U.S.C.A. § 9607(a), Artesian Water Co. v. Government of New Castle County, 659 F. Supp. 1269, 1278 (D. Del. 1987), aff'd 851 F.2d 643 (3d Cir. 1988). Section 9601 defines many of the terms used above. 42 U.S.C.A. § 9601.
If a party is determined to be a responsible party and the other required elements are present, then liability is strictly imposed. U.S. v. Alcan Aluminum Corp., 964 F.2d 252, 259 (3d Cir. 1992); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir. 1989); New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2nd Cir. 1985).
III. Standard for Granting Summary Judgment
Summary judgment is appropriate if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). The court does not resolve questions of disputed fact, but simply decides whether there is a genuine issue of fact which must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Ettinger v. Johnson, 556 F.2d 692 (3d Cir. 1977). The facts must be viewed in the light most favorable to the opposing party, and reasonable doubt as to the existence of a genuine issue of material fact is to be resolved against the moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). However, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury, or whether it is so one-sided that one party must prevail as a matter of law. Id. at 252.
IV. Relationship Between CERCLA and TSCA
SEPTA makes a number of arguments related to the Toxic Substance Control Act ("TSCA"), 15 U.S.C.A. §§ 2601-2671 (West 1982 & 1993 Supp.). In order to evaluate these arguments, the court will briefly summarize the portions of TSCA pertinent to this motion.
Congress passed TSCA in 1976, four years before CERCLA's passage in 1980. The purpose of the legislation was to "regulate chemical substances and mixtures which present an unreasonable risk of injury to health or the environment, and to take action with respect to chemical substances and mixtures which are imminent hazards." 15 U.S.C.A. § 2601(b)(2). In that vein, the statute outlawed the manufacture, processing, distribution, or use of PCBs "in any manner other than in a totally enclosed manner." 15 U.S.C.A. § 2605(e)(2)(A). However, TSCA also authorized the EPA to issue a rule allowing the manufacture, processing, distribution, or use of PCBs in other than a totally enclosed manner if the EPA found that the activity in question did not "present an unreasonable risk of injury to health or the environment." 15 U.S.C.A. § 2605(e)(2)(B).
Pursuant to this statutory authority, the EPA issued a rule authorizing, subject to certain conditions, the use of PCBs in railroad transformers. The Code of Federal Regulations states:
PCBs may be used in transformers in railroad locomotives or railroad self propelled cars ('railroad transformers') and may be processed and distributed in commerce for purposes of servicing these transformers in a manner other than a totally enclosed manner subject to the following conditions.
40 C.F.R. § 761.30(b) (1991). Furthermore, the EPA recognized that spills and leaks of PCBs were incidental to the use of such transformers:
Through normal operation of railroad cars, certain concentrations of PCBs in dielectric fluid are frequently spilled onto railroad beds. These spills can occur as a result of overheating or electrical failure in the transformers and of damage to these transformers from rocks and debris on the railroad bed.
48 Fed. Reg. 124 (1983).
TSCA does contain enforcement provisions. However, TSCA, unlike CERCLA, does not create a private right of action authorizing a private party to recover response costs from other responsible parties.
In an attempt to ward off the potential imposition of CERCLA liability, SEPTA talismanically cites TSCA throughout its papers. The attempt fails.
CERCLA liability may be imposed for activity authorized under TSCA
SEPTA contends that the EPA's authorization, pursuant to TSCA, of the use of PCB containing transformers on railcars insulates it from CERCLA liability. The court disagrees.
No conflict exists between the two statutory schemes. CERCLA, the later of the two statutes, expressly states that liability under the statute may be imposed upon a covered person "notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section." 42 U.S.C.A. § 9607(a). This statutory language indisputably evidences Congress' intention to prohibit implied exclusions from or exceptions to CERCLA liability.
Courts considering whether another environmental statute, the Resource Conservation and Recovery Act ("RCRA"), creates an exception to CERCLA liability have concluded that it does not. See, e.g., Accord Mardan Corp v. C.G.C. Music, Ltd., 600 F. Supp. 1049, 1054 (D. Ariz. 1984), aff'd, 804 F.2d 1454 (9th Cir. 1986) ("That CERCLA was intended to operate independently of and in addition to RCRA is indicated by the first clause of Section 107 of CERCLA which provides 'Notwithstanding any other provision or rule of law ... [liability may be established]."); United States v. Rohm and Haas Co., 790 F. Supp. 1255, 1262 (E.D. Pa. 1992) ("The overwhelming evidence is that Congress intended CERCLA to be cumulative and not merely an alternative to RCRA. . . . There is no statutory expression that would prevent EPA from recovering costs incurred in supervising a so-called RCRA managed site. . . . Without a clear statutory statement to the contrary, this CERCLA remedy must be upheld as an available tool of environmental protection. The defense of an implied exclusion of CERCLA remedies, must, therefore, be rejected.")
A cleanup conducted under the auspices of TSCA does not automatically preclude recovery under CERCLA