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.
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").
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.
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).
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).
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).
Plaintiffs have presented considerable evidence that hazardous materials were disposed of and found at the Site, and that there was a release of those hazardous materials. In particular, many opened and deteriorating drums containing hazardous substances were found at the site. See U.S. Ex. 3 (Harper Affidavit); U.S. Exh. 1 (RI Report) at § 6.4, Table 7-1 (listing hazardous substances found at the Site); U.S. Exh. 2 (Phase II Drum Removal Close Out Report) at pp. 2-4 through 2-9, Table 1. Blosenski argues that there are "flaws and contradictions" in the evidence presented by the moving parties which create a genuine issue of material fact as to the presence of hazardous materials at the Site. Blosenski also claims that certain documents in the EPA administrative record cast doubt on the contention that hazardous substances were at the Site.
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,