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ATLANTIC RICHFIELD CO. v. BLOSENSKI

March 2, 1994

ATLANTIC RICHFIELD COMPANY, et al., plaintiffs,
v.
JOSEPH M. BLOSENSKI, JR., et al., defendants, v. ATLANTIC RICHFIELD COMPANY, et al. third-party defendants. UNITED STATES OF AMERICA, plaintiff, and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, plaintiff-intervenor v. JOSEPH M. BLOSENSKI, JR., et al., defendants



The opinion of the court was delivered by: JAMES T. GILES

 GILES, J.

 The above captioned actions, which have been consolidated for trial, are brought pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq., to determine and allocate responsibility for the clean-up of hazardous wastes from a landfill in Chester County, Pennsylvania. The trial has been trifurcated, with Phase I concerned solely with the liability of certain defendants for response costs associated with the clean-up. See Order of October 29, 1993. *fn1"

 Plaintiffs in both actions have moved for summary judgment against certain defendants as to Phase I liability. In United States, et al. v. Blosenski, et al., 847 F. Supp. 1261 ("the U.S. action"), The United States and the Commonwealth move for summary judgment as to Phase I liability against Alexander M. Barry ("Barry"), Joseph M. Blosenski, Jr. ("Blosenski"), Blosenski Liquidating Company, a/k/a Blosenski Disposal Company, Inc. ("BDC"), B.T. Liquidating Corp., a/k/a Blosenski Trucking Corporation ("BTC"), and Eastern Waste Industries, Inc ("EWI"). In Atlantic Richfield, et al. v. Blosenski, et al., 847 F. Supp. 1261 ("the ARCO action"), plaintiffs also move for summary judgment against the above-named defendants, all of whom are also defendants in the ARCO action. In addition, they seek summary judgment against Ada Blosenski and Suburban Sanitation Corporation ("SSC"). *fn2" Finally, some of the defendants have crossmoved for summary judgment. For the reasons stated below, plaintiffs' motions for summary judgment will be granted as to defendants Blosenski, BDC, BTC, and EWI. The motions will be denied as to defendants Barry, Ada Blosenski, and SSC. Defendants' cross-motions will be denied.

 I. SUMMARY JUDGMENT STANDARD

 Summary judgment will be entered 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). It is the moving party which must "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party makes such a showing, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must satisfy this burden through the introduction of testimony "as would be admissible in evidence," id., such as an affidavit or deposition testimony. Fed.R.Civ.P. 56(c). If, however, the moving party ultimately persuades the court that there are no genuine issues of material fact, then the court must decide whether the law dictates an outcome in favor of the moving party. If so, the motion for summary judgment must be granted. *fn3"

 II. CERCLA

 In response to growing concern about the dangers posed by hazardous waste sites, Congress enacted CERCLA. CERCLA is intended "to force polluters to pay for costs associated with remedying their pollution." United States v. Alcan Aluminum Corp., 964 F.2d 252, 259-60 (3d Cir. 1992). CERCLA grants the President of the United States broad authority to provide for the cleanup of sites contaminated by hazardous substances. Most of this authority has been delegated to EPA. See Alcan, 964 F.2d at 258. CERCLA is a remedial statute that should be construed liberally to effectuate its goals. Alcan, 964 F.2d at 258.

 CERCLA authorizes the United States to use "Superfund" monies to clean up a site, and then recover those response costs from the parties responsible for the pollution. See 42 U.S.C. § 9607, 9611-12. Parties other than the United States who have incurred clean-up response costs can also recover those costs under CERCLA. Plaintiffs in each of these consolidated actions seek to recover response costs from defendants.

 III. UNDISPUTED FACTUAL BACKGROUND

 Blosenski began his waste hauling business with a single trash collection route in the late 1960s. Over the next few years, his trash collection and hauling business, which he operated as a sole proprietorship, gradually expanded. See Jt. Exh. B at 52-54, 60-61 (Blosenski deposition). In 1971 he purchased an eight-acre dump in Chester County, Pennsylvania. See Blosenski's Memorandum of Law Contra to ARCO and U.S. Summary Judgment Motions (docketed at # 238 in the ARCO action, hereinafter referred to as "Blosenski Mem.") at 2 (admitting ownership); Jt. Exhibits 37, 38, 39 (deeds). Shortly after he purchased the eight-acre property, he began to use it in conjunction with his waste hauling business, hauling waste to the property for disposal, and allowing others to dispose waste there. See Blosenski Mem. at 2 (admitting that between 1971 and May 3, 1979 Blosenski "transported certain substances" to the Site); Jt. Exh. B at 54 (Blosenski deposition); Jt. Exh. C at 24-25 (same); Jt. Exh. D at 140 (same). In 1972, Blosenski purchased approximately five acres of land adjacent to the eight-acre tract. See Jt. Exh. 39 (deed). *fn4" The EPA has identified these combined tracts as a "Superfund" site ("the Site"). See Jt. Exh. 50 at P III.A.1 (EPA Administrative Order for Remedial Action, Phase II). Blosenski owned and operated the Site as a landfill, and continued to transport waste to the Site until at least May 3, 1979. See Blosenski Mem. at 2 (admitting that between 1971 and May 3, 1979 Blosenski "transported certain substances" to the Site).

 Shortly after he began using the Site, Blosenski was cited by the Pennsylvania Department of Environmental Resources ("PaDER") for operating a permitless landfill. See Jt. Exh. 46. In early 1972, he signed a consent decree with PaDER, requiring him to make certain improvements at the Site to prevent leachate from wastes dumped there from migrating to neighboring properties. See Jt. Exh. 46; Jt. Exh. 106 (1972 Consent Decree in Commonwealth v. Blosenski, C.A. 2404). Blosenski continued to operate the site throughout the 1970s. During that time he was repeatedly cited by PaDER for violations, found in contempt, and fined. See generally Jt. Exh. 46.

 By 1982, EPA was actively investigating the Site, which was placed on the National Priorities List ("NPL"), see 42 U.S.C. § 9605, in September of 1983. See Jt. Exh. 50; Jt. Exh. 65 at 19 (Techlaw Report). When the Site was placed on the NPL, EPA began a Remedial Investigation/Feasibility Study ("RI/FS"), pursuant 42 U.S.C. § 9604, which was completed in February 1986. The study reported numerous hazardous substances in Site soils, sediments and ground water. See U.S. Exh. 1, Table 7-1 at pages 7-7 through 7-15. In September of 1986, EPA issued its Record of Decision selecting a four-phase remedial plan for the Site. See Jt. Exh. 49.

 In 1985, while EPA was actively investigating the Site, Blosenski attempted to restructure his business, which had previously been run as a sole proprietorship. In 1985, the Blosenski waste hauling business was incorporated into three corporations: Blosenski Disposal Co., Inc. ("BDC"); Blosenski Trucking Corporation ("BTC"); and Suburban Sanitation Corp. ("SSC") (collectively, "the Blosenski Corporations"). U.S. Exh. 9 (certificates from Secretary of Commonwealth); Jt. Exh. B at 85-86, 109 (Blosenski deposition).

 In 1986, representatives of Eastern Waste Industries, Inc. ("EWI") began to discuss with Blosenski the possibility of purchasing the Blosenski Corporations' assets. EWI Exh. G (Speake deposition); EWI Exh. H (Vorel deposition). An asset purchase agreement was entered into on January 1, 1987 between EWI and the Blosenski Corporations and their shareholders. EWI purchased the assets for over $ 4.5 million. Jt. Exh. 11. There was no purchase of stock and EWI did not issue shares of its stock to the Blosenski Corporations or any of their shareholders as part of the asset purchase. EWI Exh. K at P 11 (Sinclair Affidavit).

 IV. DISCUSSION

 In order to recover their response costs, plaintiffs must show that for each defendant against whom they seek recovery:

 
1) the defendant falls into one of [the] categories of "covered persons," 42 U.S.C. §§ 9607(a)(1)-(4); 2) there has been a release or a threatened release of a hazardous substance from a facility, 42 U.S.C. § 9607(a)(4); 3) this release or threatened release has caused the plaintiff to incur response costs; 4) the plaintiff's response costs are necessary and consistent with the [National Contingency Plan ("NCP"), see 42 U.S.C. § 9605], 42 U.S.C. § 9607(a)(4)(B).

 Lansford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d 1209, 1219 (3d Cir. 1993). CERCLA imposes strict liability upon responsible parties. Alcan, 964 F.2d at 259.

 It is undisputed that the moving plaintiffs have incurred response costs in a clean-up at the Site. Therefore, the third prong of the above-described standard is not at issue in this case. While the consistency of the expended costs with the National Contingency Plan is an issue ultimately to be resolved in this litigation, it is not at issue in Phase I. Therefore, resolution of these motions for summary judgment depends only upon the first two prongs. Thus, plaintiffs must show that: (a) the Site is a CERCLA facility at which there was a release or threatened release of hazardous substances; and (b) each defendant is a covered person responsible for clean-up costs at the Site.

 A. Release or Threatened Release of Hazardous Substances at the Site

 Plaintiffs must prove that the Site is a CERCLA "facility," and that there was a release or threatened release of hazardous substances at the Site. CERCLA defines a "facility" to include "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located." 42 U.S.C. § 9601(9)(B); see also, 42 U.S.C. § 9601(14) (defining "hazardous substance"); New York v. Shore Realty Corp., 759 F.2d 1032, 1043 n. 15 (2d Cir. 1985) ("facility" is defined broadly to include any property where a hazardous substance is present). A "release" of hazardous substances at a facility includes "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers or other closed receptacles containing any substance or pollutant or contaminant)." 42 U.S.C. § 9601(22).

 Blosenski's arguments and the evidence he presents establish, at most, that there were certain locations within at the Site where no hazardous substances were found, or that there is some uncertainty about the exact level of contamination at the Site. They do not cast doubt on the conclusion that hazardous substances were disposed of and were released at the Site. Therefore, the court finds as a matter of law that the Site is a facility and that there was a release of hazardous substances at the Site. It is undisputed that the moving plaintiffs have incurred response costs in its effort to clean up the Site. Therefore, the only issue possibly remaining for the Phase I trial is whether each Phase I defendant is responsible for those costs as a "covered person" under CERCLA.

 B. Covered Persons

 "Covered persons" against whom response costs can be recovered include:

 
(1) the owner and operator of . . . a facility,
 
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
 
. . . and,
 
(4) any person who accepts or accepted any hazardous substance for transport to disposal or treatment facilities or sites selected by such person, from which 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)(1), (2), (4). Defendants who are described by subsection (1) or (2) are commonly known as "owners" or "operators," while those who are responsible under subsection (4) are known as "transporters." *fn6"

 
1. Joseph M. Blosenski, Jr.
 
Plaintiffs have moved for summary judgment against Joseph M. Blosenski, Jr. ("Blosenski") as to owner/operator and transporter liability. Because the court finds that the undisputed facts require judgment as a matter of law that Blosenski is liable as an owner/operator of the Site and as a transporter of hazardous materials to the Site, plaintiffs' motions will be granted.
 
a. Owner/operator liability
 
Given the court's finding that the Site is a facility and that there has been a release of hazardous substances at the Site, the uncontested facts compel a finding that Blosenski is liable as an owner/operator of the Site. *fn7" It is uncontested that Blosenski is the current owner of the Site, and has been an owner of the Site since May 26, 1971. Blosenski also admits that he operated the Site from 1971 until May 3, 1979. See Blosenski Mem. at 2 (admitting ownership); Jt. Exhibits 37, 38, 39 (deeds). Because Blosenski is the current owner of the Site, the court finds as a matter of law that he is liable as a current owner under 42 U.S.C. § 9607(a)(1). Artesian Water Co. v. Government of New Castle County, 659 F. Supp. 1269, 1280 (D. Del. 1987), aff'd, 851 F.2d 643 (3d Cir. 1988). In addition, as an admitted owner and operator of the Site during the time that hazardous wastes were dumped there, Blosenski is liable as a matter of law under 42 U.S.C. § 9607(a)(2). See Shore Realty, 759 F.2d at 1044.
 
b. Transporter liability
 
Plaintiffs argue that Blosenski is also liable as a "transporter." See 42 U.S.C. § 9607(a)(4). To establish transporter liability, plaintiffs must show that Blosenski transported hazardous substances to the Site and that the Site was selected by Blosenski. Id.
 
Blosenski admits that between 1971 and May 3, 1979 he "transported certain substances" to the Site. Blosenski Mem. at 2. However, he denies that any of those substances were "hazardous" as defined by CERCLA. Plaintiffs, however, have submitted evidence that Blosenski transported hazardous materials to the Site during this period. Because Blosenski has failed to present evidence which would create a genuine issue of material fact as to his transporter liability, the court finds as a matter of law that Blosenski is liable as a transporter.
 
The unrebutted evidence submitted by plaintiffs consists of the deposition testimony of a truck driver hired by Blosenski to transport waste to the Site, together with evidence from various generators of hazardous waste as to the types of waste transported by Blosenski to the Site from their plants and factories.
 
Kenneth R. Hoffman was a truck driver hired by Blosenski to haul wastes from a variety of industrial and commercial customers to the Site. Jt. Exh. 52 at 9-18; Jt. Exh. A at 12. In his deposition, Hoffman testified that Blosenski was his immediate supervisor during the time that he worked for him. Jt. Exh. 52 at 12. Hoffman described the wastes hauled from specific customers and testified that those wastes were transported to the Site and disposed of there at Blosenski's direction. Hoffman provided this information with respect to: The Budd Company, see Jt. Exh. 52 at 41-48; Chubb National Foam, see Jt. Exh. 52 at 20-25; Diamond Shamrock Chemical Company, see Jt. Exh. 52 at 48-54, 58-63, 121, 134-37, 146; The Sartomer Company, see Jt. Exh. 52 at 35-41; and other potentially responsible parties, see Jt. Exh. 52 at 27-35, 139-143, 146.
 
Hoffman testified that he transported wastes to the Site, at Blosenski's direction, from the Budd Company's Trailer Division in Eagle, Pennsylvania. These wastes included fifty-five gallon drums with paint in them. He testified that these drums of paint sometimes came open, spilling the contents, when they were dumped at the Site. Evidence produced by Budd during discovery indicates that, at the Budd facility from which Hoffman transported waste, Budd used various paints in fifty-five gallon drums. Material Data Safety Sheets ("MS/DS sheets") *fn8" provided by Budd indicate that the ingredients of all the paints used by Budd at its Eagle location included xylene, toluene and lead. U.S. Exh. 3 at P 9 (attaching supporting documentation). Xylene, toluene and lead are all hazardous substances as defined by CERCLA. See 42 U.S.C. § 9601(14); 40 C.F.R. Part 302.4 (1987). *fn9"
 
The above-described evidence that Blosenski transported hazardous substances to the Site from Budd's Eagle location and from Chubb's West Chester facility, if believed by the trier of fact, would command judgment as a matter of law that Blosenski is liable as a CERCLA transporter. *fn10" Thus, if Blosenski is to avoid summary judgment against him as to transporter liability, he must produce evidence to create a genuine issue of material fact as to the hazardous nature of the materials transported by him to the Site from Budd and Chubb. He has failed to produce such evidence. Indeed, the evidence he has produced confirms the evidence presented by plaintiffs.
 
Blosenski has testified that he reviewed the specific portions of Hoffman's testimony as it related to both Budd and Chubb. Blosenski Exh. 17 at A-90. When asked, "Did you agree with [Hoffman's] testimony? Would you think that was correct?," Blosenski responded, "Within reason, yes." Id. Rather than presenting evidence that contradicts Hoffman's testimony, Blosenski's counsel attempts to make much of the fact that Blosenski testified that he only "kind of breezed through" Hoffman's deposition. See Memorandum of Blosenski, et al. contra to United States' Motion for Summary Judgment (docketed at # 124 in Civil Action No. 93-1976) at 19-21. Counsel would have the court conclude that Blosenski's expressed agreement with that testimony should therefore be ignored. However, counsel's argument is futile. While Blosenski did testify at one point that he "kind of breezed through" Hoffman's testimony, he later testified that he had specifically reviewed those portions of the testimony regarding Budd and Chubb, see Blosenski Exh. 17, precisely the portions of Hoffman's testimony upon which the court relies.
 
Even if Blosenski had completely failed to read Hoffman's deposition, he could not now overcome the evidence presented in that deposition without presenting affirmative evidence that calls into question the material portions of Hoffman's testimony. He has failed to do so. The specific disagreements with Hoffman's testimony raised by Blosenski in his deposition are immaterial. *fn11" Therefore, the court finds that the portions of Hoffman's testimony upon which it has relied are unrebutted.
 
Similarly, Blosenski has presented no evidence contrary to plaintiffs' evidence that the waste materials described by Hoffman as hauled from Budd and Chubb to the Site contained hazardous materials. Instead, he raises several objections to the adequacy of plaintiffs' proof, all of which are without merit.
 
Plaintiffs' evidence that the materials from Budd and Chubb were hazardous is presented in documents attached to an Affidavit of James P. Harper. See U.S. Exh. 3. Blosenski complains that Harper was not previously identified as an expert upon which the United States would rely, and avers that Harper's statements are not supported by the submitted evidence.
 
Blosenski's objections to the Harper Affidavit are without merit. None of the information upon which the court relies depends upon Harper having any specialized knowledge or expertise. Paragraph 9 of Harper's affidavit, which presents the relevant evidence, is simply a compilation and summary of information contained in the supporting documents attached to the affidavit. The court has independently examined these supporting documents and bases its conclusions upon that independent examination.
 
Blosenski repeatedly criticizes plaintiffs' evidence by claiming that it fails to state the level of concentration of hazardous substances in the waste hauled to and present at the Site. In fact, however, the evidence described above as material to Blosenski's transporter liability does state concentration levels for the hazardous substances contained in the transported waste. At any rate, the exact concentration levels of hazardous substance are legally irrelevant, since the third circuit has held that liability for response costs under CERCLA does not depend on the presence of some minimum threshold level of hazardous substance. Alcan, 964 F.2d at 259-61.
 
2. Ada Blosenski
 
Plaintiffs in the ARCO action move for summary judgment against Ada Blosenski, Blosenski's wife. *fn12" Ada Blosenski has cross-moved for summary judgment. Because there are disputed issues of material fact, both motions must be denied.
 
a. Operator liability
 
It is undisputed that Ada Blosenski did not and does not own the Site. Plaintiffs, however, contend that Ada Blosenski is liable because she was an operator of the Site at the time that hazardous waste was deposited there. See 42 U.S.C. § 9607(a)(2).
 
The third circuit has recently discussed the meaning of "operator" under CERCLA:
 
The definition of "operator" in CERCLA gives little guidance to the courts in determining if a particular person or entity is liable as an operator. The statute circularly defines "operator" as "any person . . . operating such facility." 42 U.S.C. § 9601(20)(A)(ii). Several cases have attempted to give substance to liability as an operator and in general have construed "operator" broadly to encompass all who profit from the facility and at the same time have a degree of day-to-day control over the management of the facility. For example, in United States v. New Castle County, 727 F. Supp. 854, 869 (D. Del. 1989), the district court listed the following factors as being relevant: whether the person or entity controlled the finances of the facility; managed the employees of the facility; managed the daily business operations of the facility; was responsible for the maintenance of environmental control at the facility; and conferred or received any commercial or economic benefit from the facility, other than the payment or receipt of taxes.
 
FMC Corp. v. United States Department of Commerce, 10 F.3d 987, 995 (3d Cir. 1993). See also, New Castle County, 727 F. Supp. at 869 (when applying the above-described factors, court should look at totality of the circumstances); Tonolli, 4 F.3d at 1220-22 (parent corporation is liable as an operator when it has "actual participation and control" over subsidiary's decision making).
 
The evidence of Ada Blosenski's management and/or control of the Site is mixed. She testified that she was not involved in the Blosenski waste hauling and disposal business until after the Site was closed. Ada Blosenski Exh. 1 at 5-6, Exh. 2 at 5-6. In particular, with respect to the landfill operation, she testified as follows: "I was really involved with raising the children at that time. I had nothing to do with any of the businesses, landfill or anything. I didn't even know that Joe had a landfill back then." Ada Blosenski Exh. 3 at 62. See also, id. at 60-61 (testifying that she had no knowledge of landfill's operation).
 
Plaintiffs, however, have presented evidence to the contrary. An equipment lease to which the Blosenski proprietorship was a party, and which was in existence prior to the Site's closure, lists the lessee as "Joseph Jr. & Ada Blosenski, Jointly & Individually DBA Blosenski Disposal Service." Jt. Exh. 78. Another such lease lists names the lessee as "Joe and Ada Blosenski ind./Blosenski Disposal. Jt. Exh. 77. Both of these leases are apparently signed by Ada Blosenski. Jt. Exh. 78. In their 1980 application to the Central and Western Chester County Industrial Development Authority, the Blosenski's write of "our" trash removal business. The application is signed by Joseph Blosenski on behalf of "Joseph M. Blosenski and Ada C. Blosenski." Jt. Exh. 79. Finally, in a mortgage application submitted by the Blosenskis in 1985, Ada Blosenski stated that she was an office manager in a sanitation business and had been so employed for twenty-four years. Jt. Exh. 76.
 
The court concludes that there is a genuine issue of material fact as to whether Ada Blosenski was an operator of the Site at the time that hazardous wastes were deposited there. Therefore, the ...

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