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UNITED STATES v. WITCO CORP.

September 22, 1994

UNITED STATES OF AMERICA
v.
WITCO CORPORATION



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

 JOYNER, J.

 SEPTEMBER 22, 1994

 This case arises under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C.A. §§ 9601-75 (1983 & Supp. 1994). Defendant Witco Corporation, by its Cross-Motion for Partial Summary Judgment Against the United States, seeks a declaration under 42 U.S.C.A. § 9613(g)(2) of the United States' liability for response costs as an owner, under 42 U.S.C.A. § 9607(a)(2).

 The facts of this case are explained more fully in the Order referred to above. Briefly, however, they are as follows. During World War Two, Elf's predecessor in interest leased certain machinery from a United States entity known as the Defense Plant Corporation. This machinery was used to produce the pesticide DDT for the Army and the private market. As a result of the DDT manufacturing, the factory site (the Site) is now contaminated with many organic and nonorganic hazardous substances, including DDT and lead. The United States' Environmental Protection Agency placed the Site on the National Priority List and this litigation arises out of actions for contribution to the clean-up costs.

 1. Summary Judgment

 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)).

 2. 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).

 3. Discussion


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