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ELF ATOCHEM NORTH AMERICA, INC. v. UNITED STATES

September 22, 1994

ELF ATOCHEM NORTH AMERICA, INC.
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 SEPTEMBER 22, 1994

 Plaintiff, Elf Atochem North America Inc. (Elf), *fn1" seeks partial summary judgment and declaratory judgment on the issue of the United States' liability as an owner under section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. §§ 9601 - 75 (1983 & Supp. 1994) (CERCLA).

 Elf's claim against the United States is based on business activities that took place during World War Two. Elf's predecessor in interest leased the equipment necessary to produce the pesticide DDT from the United States Defense Plant Corporation in 1944. DDT was vital to the United States' war effort in Europe and was labeled a strategic pesticide. The War Production Board rated DDT AA1, which meant that the government would help expedite DDT producers' expansion efforts. Today, the land and ground water on and around Elf's DDT factory (the Site) are contaminated with chlorobenzene and benzene, which are used in the manufacture of DDT, as well as other chemicals.

 In 1983, the Environmental Protection Agency (the EPA) placed the Site on the National Priorities List. In 1992, Elf and the EPA entered into a consent decree that requires Elf to remediate the Site, but allows it to seek contribution from other sources. Accordingly, Elf has sued the United States for contribution on the grounds that the United States is liable as an owner, operator and arranger within the meaning of CERCLA. This motion seeks summary judgment only on the issue of the United States' liability as an owner. CERCLA authorizes courts to enter declaratory judgments on liability for response costs or damages pursuant to 42 U.S.C.A. § 9613.

 In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Anderson, 477 U.S. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 CERCLA

 CERCLA makes liable "any person who at the time of disposal of any hazardous substance owned or operated any facility at which time such hazardous substances were disposed . . . 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.A. § 9607(a)(2). CERCLA defines "facility" to include equipment (42 U.S.C.A. § 9601(9)(A)) and gives the word "disposed" the same meaning that it has in the Solid Waste Disposal Act. 42 U.S.C.A. §§ 6901-87 (1983 & Supp. 1994). That act defines disposal as "the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters." 42 U.S.C.A. § 6903(3). Under CERCLA even an owner that does "not have any control over the disposal activity" is still liable for waste disposed of at its facilities. United States v. A & N Cleaners & Launderers, Inc., 788 F. Supp. 1317, 1332 (S.D.N.Y. 1992).

 Whether a party falls within CERCLA's § 9607 can be decided summarily if there are no genuine issues of material fact. Once a finding of liability is made, courts are directed to enter a declaratory judgment on liability for response costs or damages. 42 U.S.C.A. § 9613(g)(2). The facts relevant to this issue are undisputed, accordingly, Elf's motion for partial summary judgment will prevail if it shows that the United States 1) owned 2) a facility 3) at which hazardous substances 4) were disposed 5) and from which there is a release or threatened release 6) for which response costs have been incurred.

 1. Owner

 The United States, through its entity the Defense Plant Corporation, owned and leased the components most important to the production of DDT to Elf. Elf contends, and the United States does not contest, that this ownership and subsequent leasing of the equipment is sufficient "ownership" within the ...


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