We agree with the defendant's position. As CUSA accurately described
it, there is contamination on the site, but it poses no danger of
imminent harm. In Meghrig, the Supreme Court stated that waste that no
longer presents a danger does not satisfy the
imminent-and-substantial-endangerment requirement. Meghrig, supra, 516
U.S. at 485-86, 116 S.Ct. at 1255, 134 L.Ed.2d at 128. ("the reference to
waste which `may present' imminent harm quite clearly excludes waste that
no longer presents such a danger").
Meghrig's standard was not dictum, as the plaintiff contends, but an
important part of the resolution of that case. The factual issue was
different from the one in the instant case, but the Court's explication
of the imminent-and-substantial-endangerment requirement was important to
the issue it had to decide there, whether a RCRA plaintiff could recover
for past remediation costs. Thus, we can look to its expression of the
Meghrig indicates that the plaintiffs position is incorrect in
requiring only a showing that there may be a threat of future harm and in
asserting that soil and groundwater pollution by itself constitutes
imminent and substantial endangerment. Consistent with Meghrig's
approach, and in line with the statutory language, other courts have
required more than just pollution; there has to be the potential for an
imminent threat of substantial endangerment. See Leister v. Black &
Decker (U.S.) Inc., 1997 WL 378046 (4th Cir. 1997); Birch Corp. v. Nevada
Investment Holding, Inc., 1998 WL 442982 (9th Cir. 1998) (free floating
underground gasoline at the site did not satisfy section 6972(a)(1)(B)
requirement because there were no facts indicating that the water was
otherwise usable or that the pollution would spread and the plaintiffs
own recommendation was to allow passive remediation).
We do not accept Two Rivers' argument concerning the water supply.
PaDEP may consider the water drinkable, but we must consider federal
law, not state law, on this RCRA issue. The fact that no one is drinking
this water eliminates it as a threat to health or the environment. See
Birch Corp., supra, 1998 WL 442982 at *2 (no threat of imminent harm when
the plaintiff "presents no evidence of any plans for subsurface
excavation or for use of the ground water"); Davies v. National
Cooperative Refinery Ass'n, 963 F. Supp. 990, 999 (D.Kan. 1997); Foster,
supra, 922 F. Supp. at 662.
We note that the plaintiffs cases are distinguishable. In Kara Holding
Corp., supra, past leaks from a gasoline station were causing evacuations
from the plaintiffs nearby building. In Paper Recycling, Inc. v. Amoco
Oil Co., 856 F. Supp. 671 (N.D.Ga. 1993), 5,000 to 21,000 gallons of
freestanding diesel fuel remained in the water table without any evidence
of its risk to to persons or the environment. In Buggsi, Inc. v. Chevron
U.S.A., Inc., 857 F. Supp. 1427 (D.Or. 1994), expert reports indicated
that contamination from an adjoining petroleum terminal, although in the
past, was causing recent releases in the soil near the plaintiffs
Finally, Two Rivers' consultant's affidavit has not created a material
dispute of fact concerning imminent-and-substantial endangerment. We have
already rejected one of his contentions, that the mere presence of
contaminants creates such a situation. We cannot accept his remaining
assertion, that the Juniata River may yet be harmed because there is
"insufficient data . . . to make the conclusion" that it will not.
The Land Tech report provided sufficient detail on the conclusion that
presented no imminent threat to the Juniata River. In reply, the
plaintiffs consultant conclusionally opined that there was insufficient
data to decide that question. This is not enough. See Shaw v.
Strackhouse, 920 F.2d 1135, 1144 (3d Cir. 1990) (expert affidavits that
are conclusory and lacking in specific facts are insufficient to create a
genuine issue of material fact).
We will enter summary judgment in CUSA's favor on the RCRA claim.
"While there can be no question that the levels of contamination present
at the Site may warrant future response action, the plaintiff cannot
establish either a current risk of `substantial or serious' threatened
harm, or `some necessity for action.'" Foster, supra, 922 F. Supp. at 662
(quoting Price, supra, 39 F.3d at 1019).
D. Caveat Emptor and Two Rivers' Contribution and Indemnity Claims.
CUSA argues that the doctrine of caveat emptor bars Two Rivers'
common-law contribution and indemnity claims because Two Rivers purchased
the site knowing that it had environmental problems.
Two Rivers' indemnity claim alleges that the plaintiff "has incurred
and continues to incur damages in the form of response costs and
attorneys fees to assess, evaluate, remediate, monitor and clean-up the
Property." (Complaint, ¶ 57). It also alleges that CUSA was "the
active and primary cause of the environmental contamination" (id.,
¶ 59) and hence should indemnify Two Rivers under the common law for
Two Rivers' contribution claim alleges that if Two Rivers is liable for
environmental contamination at the site, then it is entitled to
contribution from CUSA for expenses that exceed Two Rivers' equitable
share of liability or responsibility (Id., ¶ 62). The plaintiff
invokes the Pennsylvania Uniform Contribution Among Tort-feasors Act, 42
Pa.C.S. §§ 8321-8327, and the common law.
"Under Pennsylvania law, the right to indemnity `enures to a person
who, without active fault on his own part, has been compelled, by reason
of some legal obligation to pay damages occasioned by the negligence of
another.' Burbage v. Boiler Engineering & Supply Company, 433 Pa. 319,
326, 249 A.2d 563, 567 (1969)." Philadelphia Electric Co. v. Hercules,
Inc., 762 F.2d 303, 316 (3d Cir. 1985). It is an equitable remedy that
allows one who is secondarily liable to recover against one who is
primarily liable. Id. at 318.
The main support for CUSA's position is Philadelphia Electric. The
defendant also cites Jones v. Texaco, Inc., 945 F. Supp. 1037, 1044-48
(S.D.Tex. 1996); Wellesley Hills Realty Trust v. Mobil Oil Corp.,
747 F. Supp. 93, 99-101 (D.Mass. 1990); and PBS Coals, Inc. v. Buruham
Coal Co., 384 Pa.Super. 323, 558 A.2d 562 (1989).
In opposition, Two Rivers asserts that Philadelphia Electric is
distinguishable because that case refused to allow the current owner of a
contaminated property to sue a prior owner under a nuisance cause of
action, reasoning that the action was barred by caveat emptor. The
plaintiff contends that the case did not deal with indemnity or
contribution actions and therefore is not relevant here.
We agree with the plaintiff. In Philadelphia Electric, the court held
that a nuisance claim was barred by caveat emptor, concluding as
Where, as here, the rule of caveat emptor applies,
allowing a vendee a cause of action for private
nuisance for conditions existing on the land
transferred — where there has been no fraudulent
concealment — would in effect negate the
market's allocations of resources and risks, and
subject vendors who may have originally sold their
land at appropriately discounted prices to
unbargained-for liability to remote vendees.
Id. at 314-15.