Decision for the Site declares that there was a release of the waste at the waste pool.
The United States argues that there has been no release because any waste was discharged into Elf's pipes and not released into the environment. It cites as support for its proposition Mead Corp. v. United States, 1994 U.S. Dist. LEXIS 14261, No. C-2-92-326, slip op. (S.D. Ohio Jan 14, 1994). This case held that there was no release of hazardous waste when government-owned equipment produced hazardous waste that was disposed of on the plaintiff's property. The Court feared that it would improperly merge owner liability into generator liability to find a release under CERCLA when the release occurs at a time separate from the disposal. Id. slip op. at 9-10. The Court cited, but disagreed with FMC Corp., 786 F. Supp. at 486.
First, we find the United States' definition of "release" to be too narrow. The word release is to be construed broadly. Amland, 711 F. Supp. at 793 ("As with the term 'disposal' courts have been inclined to give a broad reading to the terms 'release' and 'threatened release.'"). Courts have held that there need only be an eventual release, not an actual or imminent one. Id. Second, we decline to follow the lead of the Southern District of Ohio in Mead. Here, waste was disposed of into pipes leading directly to an outdoor waste pond. Given this situation, the Southern District of Ohio's fears that owner liability could be merged into generator liability are unfounded. The United States is not being sued for creating waste that was later released into the environment through no fault of its own. Rather, the United States is being sued for disposing of its waste directly from its equipment into pipes that lead directly to the environment.
This Court has found a threatened release when hazardous dust was distributed within a warehouse because the dust could be carried out on the warehoused goods and on the clothes and shoes of employees. BCW Assoc., 1988 WESTLAW 102641 at *17. Similarly, this Court found a threatened release when PCBs were leaked onto the floor of a building because the PCBs could seep from the building (not considered the environment under CERCLA) into the environment. Reading Co., 823 F. Supp. at 1238; see also Amland, 711 F. Supp. at 793 (threatened release when PCBs might migrate through a concrete floor onto ground). The Eastern District of California found a release under almost identical facts to the ones at bar. In Lincoln Props. v. Higgins, No. S-91-760DFL/GGH, 1993 WESTLAW 217429 (E.D. Cal. Jan. 21, 1993), lessees of property were sued under CERCLA when hazardous waste they disposed of through the lessor's sewer pipes contaminated ground water. The lessees argued that there was no release into the environment because the hazardous wastes were disposed of into pipes owned by a third party. The Court disagreed, and held that CERCLA "does not on its face provide that a release into the environment must be 'direct.'" Id. at * 20. Accordingly, it held the lessees were liable for a release.
We find BCW, Reading and Lincoln to be analogous to this case, and more persuasive than Mead. Here, the United States disposed of its waste into Elf's pipes; pipes which led directly into an outdoor waste pit. There was no doubt that once the waste entered the pipes that the waste would enter the environment. In other cases where defendants disposed of their waste onto their property, employees and products, courts have found a threatened release. Here, where the release was actually imminent, we find a threatened release. Accordingly, Elf has met the fifth part of the § 9607 test.
6. Incurrence of Response Costs
Elf contends, and the United States does not contest, that Elf has incurred response costs consistent with the National Contingency Plan to remediate the Site. Because liability only is at issue here, it is irrelevant how much the response costs are. It is only relevant that they have been incurred and that they are consistent with the National Contingency Plan. Because it is undisputed that Elf has incurred such costs, Elf has met the sixth and final part of the § 9607 test.
Because the Court finds that the United States owned facilities (the equipment) that disposed of hazardous waste that was released into the environment and caused the incurrence of response costs, the Court concludes that the United States is liable as an owner under § 9607(a)(2). Accordingly, Plaintiff's Motion for partial summary judgment is granted.
AND NOW, this 22nd day of September, 1994, upon consideration of Plaintiff's Motion for Partial Summary Judgment Against Defendant United States of America, and the responses thereto, the Motion is hereby GRANTED in part.
It is hereby ORDERED and DECLARED that the United States was an owner of facilities at the Pittstown, New Jersey Site described in the Complaint, from which three waste streams resulted. These waste streams are as follows: 1) hydrochloric acid plus organics piped from an HCL absorber to the waste pond 2) black sulfuric acid plus organics piped from a Phaudler reactor to the waste pond and 3) reddish sulfuric acid plus organics including DDT particles and unreacted monochlorobenzenes from a sight box in a Phaudler reactor to the waste pond. The United States is liable under 42 U.S.C.A. § 9607(a)(2) as an owner for past and future response costs associated with these waste streams at the Site in an amount to be determined later.
BY THE COURT:
J. CURTIS JOYNER, J.