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UNITED STATES v. PRICE

July 28, 1983

UNITED STATES OF AMERICA, Plaintiff,
v.
CHARLES PRICE, INDIVIDUALLY AND d/b/a PRICE'S TRUCKING COMPANY, VIRGINIA PRICE, CARL F. PRICE, BERNARD ABRAMOFF, LEE GARRELL, FRANK ABRAMOFF, INDIVIDUALLY AND d/b/a A.G.A. PARTNERSHIP, ASTRO-PAK CORP., CHEMICAL CONTROL CORP., WILLIAM CARRACINO, MICHAEL COLLETON, ROBERT DAY, SCIENTIFIC CHEMICAL PROCESSING, INC., LEIF R. SIGMOND, DOMINICK PRESTO, PETROLEUM TANK CLEANING AND DISPOSAL, INC., WAYNE D. HAMBY, CAROL M. HAMBY, MARVIN JONAS, INC., SAMUEL H. JONES, INDIVIDUALLY AND d/b/a S-J TRANSPORTATION CO., EVOR PHILLIPS LEASING CO., EVOR R. PHILLIPS, KING OF PRUSSIA TECHNICAL CO., ERNEST R. ROTH, HARRISON L. KALBACH, ROBERT A. HAUSLOHNER, HARRY T. DEVINE, GEORGE STRAWBRIDGE, CHEMQUID DISPOSAL INC., HARVEY BROOKS, HENRY ENGELS, DANIEL F. JACKSON, UNION CARBIDE CORP., HONEYWELL, INC., PRINCETON CHEMICAL RESEARCH, INC., ESSEX CHEMICAL CORP., HOFFMANN-LA ROCHE, INC., KRYLON CORP., AMOCO CHEMICALS CORP., ROLLINS ENVIRONMENTAL SERVICES, INC., TRIANGLE PWC, INC., AND THE PROCTOR AND GAMBLE CO., Defendants, ATLANTIC CITY MUNICIPAL UTILITIES AUTHORITY, Intervenor



The opinion of the court was delivered by: BROTMAN

 BROTMAN, District Judge

 This is a complex environmental action instituted by the United States of America pursuant to § 1431 of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300i; § 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6973, and Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. (Supp. IV 1980). The case comes before this court on a motion by generator-defendant Hoffmann-La Roche Corporation for summary judgment.

 The United States of America (government) first instituted this suit against defendants Charles Price, individually and d/b/a Price's Trucking Co., Virginia Price and Carl Price, and Bernard Abramoff, Lee Garrell and Frank Abramoff, individually and d/b/a A.G.A. Partnership. The government initially sought injunctive relief to remedy the hazards posed by the waste dumped at Price's Landfill in Pleasantville, New Jersey, during 1971 and 1972. This court denied the motion for injunctive relief and also denied defendants' motion for summary judgment, except with respect to plaintiff's claims brought under the federal common law of nuisance which were summarily dismissed. United States v. Price, 523 F. Supp. 1055 (D. N.J. 1981), aff'd, 688 F.2d 204 (3rd Cir. 1982); see Milwaukee v. Illinois, 451 U.S. 304, 68 L. Ed. 2d 114, 101 S. Ct. 1784 (1981).

 On September 21, 1981, two days prior to this court's decision on the preliminary injunction issue, plaintiff filed a second amended complaint adding thirty-five defendants. *fn1" The new defendants included individuals and corporations who allegedly generated and/or dumped the hazardous waste at Price's Landfill. The amended complaint also added two additional claims brought under CERCLA. Due to the timing of the amendment, this court did not have an opportunity to consider the effect of CERCLA as a statutory basis for this case. (Similarly, the Court of Appeals has not yet addressed that issue, although we take judicial notice of the fact that United States v. Wade, 546 F. Supp. 785 (E.D. Pa. 1982), is currently on appeal before the Third Circuit, see discussion, infra.)

 On September 14, 1982, the Court of Appeals for the Third Circuit affirmed this court's decision in Price, 688 F.2d 204. Shortly thereafter, we ordered the government to prepare a summary, outlining the evidence that it had compiled against each defendant. The summary was prepared and submitted to the court on November 17, 1982. In its introduction the government explains the purpose behind the summary:

 
"The evidence contained in this summary has been gathered through both discovery during the initial phase of the case and independent investigation and testing. At this point, however, there has been virtually no discovery from most of the defendants. Accordingly, this summary does not purport to be a complete and exhaustive rendition of all the evidence which the government will employ at trial. To the extent feasible, it represents a compilation of the information which is presently within the government's knowledge.
 
By this summary, the government waives no right to conduct full and complete discovery under the Federal Rules of Civil Procedure, the Constitution, federal statute or regulation, or other legal authority. Further, the government waives no right to augment or correct the information contained in this summary during the regular course of discovery as such information becomes available.

 Summary of Evidence, November 17, 1982, at p. 1.

 It was originally intended that Roche would address only the discovery issue -- in other words, its motion for summary judgment would be premised on its belief that the government had not compiled sufficient evidence to hold it in the case. After the briefs were submitted, however, it became obvious that Roche had gone far beyond that limited issue, since statutory grounds for summary judgment were articulated as well. At that point other defendants, specifically Union Carbide Corp., requested leave from this court to file a brief in support of Roche's motion for summary judgment. Its intended purpose was to supplement Roche's statutory arguments. Additional time was allotted for responses from all interested parties who so wished to file.

 As it now stands, Roche's motion is premised on three separate grounds. It claims that the complaint should be dismissed pursuant to Rule 11, since the government had no "reasonable basis" for its allegations. Roche also moves for summary judgment, arguing that past, nonnegligent, offsite, generators cannot be held liable under any of the statutes asserted in this action (such as SDWA; RCRA; or CERCLA). Finally, defendant maintains that the government has failed to demonstrate any issue of material fact because of its inability to prove any nexus between Roche and the waste deposited at Price's Landfill and therefore it is entitled to judgment. Fed. R. Civ. P. 56(c).

 Factual Background

 The facts pertinent hereto are thoroughly outlined in this court's previous decision in this case. See United States v. Price, 523 F. Supp. 1055, 1057-66. The only new relevant facts relate to the development of the government's case against Roche. In its summary, the government notes that Roche had a place of business in Nutley, New Jersey. Laboratory chemicals were generated at the Nutley plant and subsequently packed into drums. Roche paid a transporter, Scientific Chemical Processing Company (SCP) to pick up the drums and dispose of them. The president of SCP, Carl Ling, testified at a deposition that he went to the Nutley plant numerous times, packed the drums and deposited them at various landfills. The empty drums were supplied by Roche and the chemicals included acids, bases, and organic liquids. Ling also remembered that he took some lab packs to Price's Landfill, however, he could not link directly the Roche lab packs with those waste materials dumped at the landfill.

 The government also produced three loading tickets, discovered in Price's business records, which indicate that waste chemicals originating at Roche's plant ended up at Price's Landfill. The one ticket mentioned in the summary is dated June 9, 1972. Since the summary was compiled, the government has produced two more loading tickets from approximately the same time period. Furthermore, the government maintains that they possess other facts which suggest that more than three loads of Roche's waste were deposited at the landfill during the period in question.

 Rule 11

 Rule 11 reads in pertinent part, as follows:

 
"The signature of an attorney [on the pleading] constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information and belief there is good ground to support it and that it is not interposed for delay. If a pleading is not signed or signed with intent to defeat the purpose of this rule, it may be stricken as ...

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