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July 15, 1996

GOULD INC., Plaintiff
A & M BATTERY & TIRE SERVICE, et al., Defendants

The opinion of the court was delivered by: CONABOY

 Presently before the Court is Plaintiff Gould's motion for partial summary judgment against certain defendants. *fn1" Gould moves for partial summary judgment against the battery supplier defendants on the basis that each defendant arranged for the disposal or treatment of a hazardous substance at the site at which Marjol and Gould operated a battery-breaking and lead-reclamation facility. Gould's motion for partial summary judgment seeks a determination from this Court that each defendant is liable under Section 107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607(a).

 For the reasons which follow, Gould's motion for partial summary judgment against the defendants will be granted. This determination will not affect defendants Smith Iron & Metal Co., Inc., or Louis Mack Co., Inc., both of whom Gould withdrew its motion for partial summary judgment. Furthermore, we are unpersuaded by the determination of the United States District Court for the Southern District of Alabama which declared CERCLA unconstitutional as it purports to impose retroactive liability.


 In December 1991, Plaintiff Gould initiated this action by filing a complaint against various Defendants seeking recovery pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., for costs incurred and to be incurred to cleanup contamination at the Marjol Site located in the Borough of Throop, Lackawanna County, Pennsylvania.

 Marjol Battery & Equipment Company operated a battery-breaking operation in Throop, Pennsylvania from 1963 until May 1980 when Gould acquired the stock of the company. Gould operated the battery-breaking operations until April 1981 when it shut down its battery-breaking operations.

 In April 1988, the EPA and Gould entered into a Consent Agreement and Order pursuant to § 106(a) of CERCLA, 42 U.S.C. § 9606(a), to conduct site stabilization activities concerning lead and other hazardous substances at the Marjol Site and other residential properties.

 In May 1990, Gould entered into a second consent order, this one with both the EPA and DER. This order was based on the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6928(h). Pursuant to this second consent order, Gould agreed to perform a RCRA Facility Investigation and Corrective Measure Study ("CMS") at the Marjol Site. EPA is currently evaluating Gould's CMS, and will ultimately select a final remedy for the Marjol Site.


 Summary Judgment is appropriate 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 judgment as a matter of law." Fed.R.Civ.P. 56(c).

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing of an essential element of her case with respect to which she has the burden of proof.

 Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "'showing'... that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 477 U.S. at 325.

 Issues of fact are "'genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3rd Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3rd Cir. 1988).

 This Court has previously held on several occasions that a party that sells junk batteries to a battery-breaking company faces arranger liability under CERCLA. Section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3) states as follows:

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances,...

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