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
(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
(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
(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
(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 ...