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U.S. v. PESSES

March 21, 2000

UNITED STATES OF AMERICA, PLAINTIFF,
V.
MARVIN PESSES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ziegler, Chief Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

(1) This is a civil action for money damages and equitable relief filed by the United States against 28 defendants for the recovery of costs and expenses related to the treatment, removal and disposal of hazardous substances at the Metcoa Radiation Site located at Pulaski, Pennsylvania.

(2) Jurisdiction is based on 42 U.S.C. § 9607 and 9613(b), and 28 U.S.C. § 1331, 1345 and 1367. Venue is appropriate in this court based on 28 U.S.C. § 1391(b).

(3) At all relevant times, Marvin Pesses was a major shareholder of Metcoa, Inc. Pesses was an operator of the site within the meaning of Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2), due to his substantial ownership of Metcoa and because he exercised control over the operations of the company.

(4) The site was used by Metcoa between 1975 and 1983 to process scrap metal, waste sludge, radioactive materials and nickel cadmium batteries. Various metals were then removed from these materials, and hazardous substances were stored at the site before and after the materials were processed by Metcoa.

(5) In 1986, the Environmental Protection Agency determined that approximately three thousand 55-gallon drums containing hazardous substances, many leaking and deteriorating, were at the site. These hazardous substances included cadmium, chromium, copper, lead, magnesium, mercury, nickel, thorium and zinc, some of which had been released into the air, soil and water. The site also contained elevated levels of radiation.

(6) The United States incurred substantial response costs and expended funds to investigate, stage, sample, stabilize and secure the site. The instant civil action was filed by the United States asserting that the defendants were jointly and severally liable for the costs pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a). Defendants then filed original and amended third party complaints against 195 third party defendants.

(7) After extensive settlement negotiations, the United States reached a settlement with various defendants and a consent decree was signed by the court on June 19, 1997. Thereafter, the parties were realigned, "cash out" parties were dismissed, and the Settling Parties filed an amended complaint.

(8) The Settling Parties asserted various claims for contribution against the non-settling parties based on CERCLA, the Pennsylvania Hazardous Sites Clean-Up Act, 35 P.S. § 6020.101, and common law. On August 31, 1998, the district court granted partial summary judgment for the Settling Parties at Count II, based on Section 113 of CERCLA, on the issue of liability against third party defendants, Bay Metal, Inc., ICC Industries, Inc., Lake City, Inc., M. Berkowitz & Co., Inc., Molycorp, Inc., and Oregon Metallurgical, Inc. The motions of the third party defendants for judgment were granted against the Settling Parties at Counts I, III, V and VI of the amended complaint.

(9) The Settling Parties reached an amicable settlement with the above third party defendants, with the exception of Bay Metal, Inc. The action for contribution by the Settling Parties proceeded to trial against Bay Metal before this member of the court.

(10) In this civil action for contribution based on Section 113 of CERCLA, each of the Settling Parties bear the burden of establishing a reasonable basis for apportioning liability upon Bay Metal, Inc., and the third party plaintiffs bear the burden of proving the elements of their claims, including causation, by a preponderance of the evidence. United States v. Alcan Aluminum Corp., 964 F.2d 252, 270 n. 29 (3d Cir. 1992).

(11) The evidence preponderates that the Settling Parties incurred $10,023,015.36 in site investigation and removal (response) costs, which we find are recoverable, reasonable and consistent with the National Contingency Plan and CERCLA, 42 U.S.C. § 9613.

(12) The settlement of claims embodied in the Consent Decree was based primarily on the weight of the materials, toxicity and contribution to the harm at the site. The settlement is fair, reasonable and consistent with the public interest.

(13) The response costs incurred at the site arose in response to and were caused by the processing of materials by Metcoa which produced the commingled waste materials at the site. The response actions were required and the evidence preponderates that the response costs incurred cannot be apportioned separately based on a particular type of metal.

(14) Various hazardous substances located at the site were present due to the processing of materials by the Pesses Company and Metcoa, and were purchased from sources which included Bay Metal. U.S. v. Pesses, 794 F. Supp. 151, 154 (W.D.Pa. 1992).

(15) Hazardous substances at the site were metals entrained in slag and dust which were discarded waste products of smelting operations conducted by Metcoa. No discrete materials were identified as belonging separately to any of the parties to this civil action during the site investigation, studies and removal activities. The slag and dust at the site after Metcoa's processing were commingled into an indivisible mass of waste materials.

(16) Metcoa originally possessed a license from the Nuclear Regulatory Commission to handle radioactive materials during the time of the transactions with Bay Metal and the license was a public record.

(17) Pursuant to an administrative order issued by the EPA in 1990, some of the Settling Parties performed site investigation and removal activities with respect to the hazardous substances present at the site, while other Settling Parties performed additional site stabilization in 1989 pursuant to an administrative order on consent.

(18) The Settling Parties performed additional site investigation and removal actions at the site pursuant to the Consent Decree entered into with the United States and ...


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