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ELF ATOCHEM NORTH AMERICA v. UNITED STATES

February 12, 1996

ELF ATOCHEM NORTH AMERICA
v.
UNITED STATES OF AMERICA and WITCO CORPORATION; UNITED STATES OF AMERICA VS. WITCO CORPORATION VS. ELF ATOCHEM NORTH AMERICA



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 FEBRUARY 12, 1996

 Today we resolve cross-motions for summary judgment asking whether the United States is liable as an Owner, Operator and/or Arranger under section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-75 (1995) (CERCLA).

 The claims against the United States are based on manufacturing activities that took place during World War Two at a location now known as the Myers Property. In 1941, Elko Chemical Works, Inc. obtained a one-year government contract to manufacture arsenic trichloride for the government. Arsenic trichloride is a component of the poison gas Lewisite, which was in high demand at the time. That demand was quickly satisfied, however, and the United States terminated Elko's arsenic contract in 1942. In 1944, Elko obtained a contract to manufacture DDT for the United States and soon after, sold its facilities at the Myers Property to PennSalt Manufacturing Company, which assumed the DDT contract and continued to produce DDT at the Myers Property. PennSalt is the predecessor in interest to Elf Atochem North America, a Plaintiff and Third-Party Defendant in these consolidated actions.

 Today, the land and ground water on and around the Myers Property are contaminated with many hazardous substances, including arsenic as well as chlorobenzene and benzene, which are used in the manufacture of DDT. In 1983, the Environmental Protection Agency placed the Myers Property on CERCLA's National Priorities List. In 1992, Elf and the EPA entered into a consent decree that requires Elf to remediate the Myers Property, but allows it to seek contribution from other sources. Elf seeks contribution from Witco Corporation, a subsequent owner of the Myers Property, and from the United States for its actions during World War Two. These consolidated actions have resulted. The particular facts relevant to these motions will be discussed as needed in the body of the analysis.

 SUMMARY JUDGMENT STANDARD

 In considering a motion for summary judgment, a 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).

 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. Id. 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)).

 I. DISCUSSION

 Witco moves for a summary judgment that the United States is liable as an Owner and Arranger under § 107(a). The United States cross-moves for a summary judgment that it is not liable as either an Owner, Arranger or Operator. Elf maintains that this Court need not decide either motion because the United States has already been found liable as an Owner of DDT facilities. Under CERCLA, once a party is liable in any respect, joint and several liability attaches. Despite this, we will consider the United States's potential additional liability and thereby clarify this complicated action's issues for trial.

 A. Ownership of the Arsenic Chlorinators

 Witco asserts that the United States owned certain chlorinators used to manufacture arsenic trichloride. This ownership is based on the United States's alleged financing of Elko's acquisition of the chlorinators, probably through a system of advance payments. Lee Kolker 1993 Dep. at pp. 44-45; Witco Mot. Ex. 7. Under the law and regulations of the time, title to things financed by the United States immediately vested in the United States upon its making of advance ...


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