author: GARRITY, District Judge.

text:
    Shelley A. McCORMACK, Plaintiff, v. ABBOTT LABORATORIES et al., Defendants.
    Civ. A. No. 76-4564-G.
    United States District Court, D. Massachusetts.
    Sept. 30, 1985.

      Peter N. Munsing, Edward M. Swartz, Swartz & Swartz, Boston, Mass., for plaintiff.
    William A. McCormack, S. Elaine McChesney, Anne J. Dubitzky, Bingham, Dana & Gould, Boston, Mass., for Upjohn Co.
    Phillip M. Davis, Elizabeth M. Fahey, Morrison, Mahoney & Miller, Boston, Mass., for Dart Industries, Inc.
    Walter G. Murphy, Murphy & Mitchell, Boston, Mass., for Merck & Co., Inc.
    David W. Rosenberg, Mark C. Hanson, Hill & Barlow, Boston, Mass., for Abbott Laboratories.
    Marshall Simonds, Don M. Kennedy, Loretta M. Smith, Goodwin, Procter & Hoar, Boston, Mass., for Eli Lilly & Co.
    Samuel Adams, Joseph J. Leghorn, Christopher E. Nolin, Frances E. Balin, Warner & Stackpole, Boston, Mass., for E.R. Squibb & Sons.
   MEMORANDUM AND ORDERS ON MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT

GARRITY, District Judge.

I. DEFENDANTS’ MOTIONS TO DISMISS

Defendants Eli Lilly and Company, E.R. Squibb & Sons, Inc., and Merck & Company, Inc. have filed motions to dismiss plaintiff’s second amended complaint which arises out of the alleged ingestion by plaintiff’s mother of diethylstilbestrol (“DES”) or DES-related compounds or congenors during the pregnancy which resulted in plaintiff’s birth on April 27, 1955. Plaintiff alleges that on or about April, 1974, she developed vaginal adenosis, pre-eancerous lesions in the vagina, as a direct and proximate result of her mother’s ingestion of DES in 1954 and 1955. According to the complaint, the defendant drug companies negligently designed, manufactured and distributed the drug, failed adequately to test or inspect the drug, failed adequately to warn physicians and the general public of health risks of which the defendants knew or should have known, and negligently misrepresented to the public that the drugs were safe and effective for use by pregnant women in the prevention of miscarriage. The complaint also contains claims sounding in breach of express and implied warranty and strict liability. Plaintiff seeks to impose liability upon the defendants equally or in proportion to their share of the relevant market.

By way of procedural history, plaintiff’s case was originally consolidated with the case of Payton v. Abbott Laboratories, Civil Action No. 76-1514-S. A class was certified and plaintiff opted to become a member of the class. On December 6, 1983, Judge Skinner decertified the class and plaintiff now prosecutes her action individually. It should be noted, however, that all rulings of substantive law made in Payton between class certification and decertification are binding on plaintiff as a class member and may not be relitigated in the instant case. Order on Motion to Decertify the Class, Civil Action No. 76-1514-S, December 6, 1983 (Skinner, J.).

After hearing and consideration of the briefs, affidavits, and exhibits submitted by the parties, the court grants defendants’ motion in part and denies it in part. With respect to plaintiff’s claim of strict liability, defendants’ motion to dismiss is allowed. However, the court denies the motion to dismiss plaintiff’s claims of negligence and breach of warranty.

A. Strict Liability:

Plaintiff charges defendants with placing an inherently unsafe and unreasonably dangerous product into the stream of commerce and seeks to impose on the defendants strict liability in tort. Defendants assert that plaintiff’s claim is barred by a prior judgment entered in the Payton case prior to decertification of the plaintiff class. The court agrees.

The Payton defendants filed motions for summary judgment on the issue of strict liability. The motions were granted and judgment was entered on May 16, 1983 “against all named plaintiffs and against all members of the plaintiff class on all claims of strict liability.” Payton v. Abbott Laboratories, Slip Opinion (1983) (Skinner, J.). Decertification did not occur until December, 1983. Plaintiff concedes that she is bound by all rulings of substantive law made in the Payton case prior to December, 1983. Accordingly, plaintiff’s claim of strict liability in tort is precluded by the doctrine of res judicata and hereby is dismissed.

B. Breach of Warranty:

Plaintiff brings claims of breach of express and implied warranties made by defendants that their drugs containing DES were safe, merchantable and fit for the purpose for which they were intended. Defendants seek to have the breach of warranty claims dismissed on the ground that the transactions giving rise to plaintiff’s claims are governed by the Uniform Sales Act, which provided that a party bringing a breach of warranty claim had to establish privity of. contract with the defendant. Massachusetts warranty law is currently modeled after the Uniform Commercial Code, which dispenses with the privity requirement. M.G.L. c. 106, §§ 2-314 to 2-318.

Defendants’ argument has already been advanced and rejected by the court in Payton v. Abbott Laboratories, D.Mass., 1982, 551 F.Supp. 245, 246. In that case, the court held that a cause of action for breach of warranty is available under Massachusetts law to any plaintiff whose physical symptoms first occurred after the effective date of the 1973 amendment of M.G.L. c. 106, § 2-318, namely December 16, 1973. Defendants do not dispute the fact that plaintiff’s physical symptoms first occurred in April, 1975. Accordingly, plaintiff’s claims of breach of warranty state valid causes of action under Massachusetts law and defendants’ motion to dismiss such claims must be denied.

C. Market-Share Liability:

Turning to the principal issues raised by the defendants’ motions, plaintiff seeks to impose liability on the defendants under a “market share” theory in order to bypass the traditional threshold requirement of any products liability action — identification of the injury-causing product and its manufacturer. It is undisputed that plaintiff will not be able to meet the identification requirement. Defendants seek to have plaintiff’s market-share claim dismissed on two grounds: first, Massachusetts law does not recognize a cause of action under a market share theory; and second, even if such a cause of action exists, plaintiff has failed to plead it properly by not alleging that she exercised due diligence in attempting to identify the manufacturer of the drug ingested by her mother and that, through no fault of her own, she was unable to do so.

In order to evaluate the contentions of the parties, the court must review the theory of market-share liability as it has developed in the jurisprudence of Massachusetts and other states in the country.

1. The Background of Market-Share Liability:

In Payton v. Abbott Laboratories, 1982, 386 Mass. 540, 437 N.E.2d 171, Judge Skinner certified a question to the Supreme Judicial Court of Massachusetts: “whether manufacturers could be held liable to a plaintiff for DES-related injury when neither the plaintiff nor defendants could identify which manufacturer’s DES was ingested by plaintiff’s mother.” The court declined to answer the question in the form stated. However, it did set forth its general views on the theory of market-share liability. The court stated that a theory which would permit a plaintiff to recover 100% of her losses from the manufacturers she has chosen to sue would create the risk of holding the named defendants liable in negligence for more harm than they caused. Secondly, a theory which would prohibit exculpatory proof, that is, proof by particular defendants that the DES they marketed could not have been ingested by a particular plaintiff’s mother, would practically ensure that defendants innocent of wrongdoing to a particular plaintiff would be held liable to her. Id. at 573, 437 N.E.2d 171. The court stated that the identification requirement reduces the risk of holding innocent defendants liable or of punishing guilty defendants for more harm than they have caused.

The Supreme Judicial Court, however, did not reject outright a market-share theory. In fact, the court stated that on an adequate record, it might recognize “some relaxation of the traditional identification requirement in appropriate circumstances so as to allow recovery against a negligent defendant of that portion of a plaintiff’s damages which is represented by that defendant’s contribution of DES to the market in the relevant time period.” Id. at 574, 437 N.E.2d 171.

The emergence of a market-share theory of liability in American jurisprudence stems from the recognition by several courts that the field of products liability has been changed drastically with the advent of mass production of fungible goods and complex marketing methods. Consumers may be harmed by a product not traceable to a specific producer. Clearly, the traditional tests of liability are insufficient to govern the obligations of manufacturer to consumer in such situations, and some adaptation of the rules of causation and liability seems appropriate.

Lack of identification evidence in DES cases is rarely attributable to any fault on the part of the plaintiff. Rather, it results from the fact that DES was, for the most part, produced in a “generic” form which lacked any identifying markings. DES was a fungible drug produced by as many as 300 drug companies from a chemically identical formula. Secondly, courts have suggested that pharmacies and drug companies have contributed to the dearth of identification evidence by not keeping or not being able to locate pertinent records. Lastly, the very fact that DES is a drug whose effects are delayed for many years has played a significant role in the unavailability of proof. See, e.g., Sindell v. Abbott Laboratories, 1980, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924; Martin v. Abbott Laboratories, 1984, 102 Wash.2d 581, 689 P.2d 368.

Additionally, one of the functions of the identification requirement — separating wrongdoers from innocent actors — is of minor importance in the situation before this court. By producing and marketing an allegedly defective drug, all the defendants contributed to the risk of injury to the public and consequently, the risk of injury to individual plaintiffs. Under the market-share theory, a plaintiff must still prove that the defendants were negligent before the court may proceed to apportion damages on the basis of market share. Thus, none of the defendants can be considered truly innocent actors. Although the defendants may not have caused the actual injury of a given plaintiff, each may be shown to share, in some measure, a degree of culpability in producing and marketing DES. Furthermore, the court, while recognizing that the identification requirement also serves to protect defendants from being held liable for more harm than they have caused, believes that a market-share theory of liability, if properly fashioned, will not subject a particular defendant to liability for more harm than it statistically could have caused in the relevant market.

Finally, the magnitude of the physical and psychological injuries which are at issue in DES cases counsels toward permitting a remedy under some form of a market-share theory of liability. As between the injured plaintiff and the possibly responsible drug company, the latter is in a better position to absorb the cost of the injury. The company can insure itself against liability, absorb the damage award, or distribute it among the public as a cost of doing business, thereby spreading the cost over all consumers. In many cases, the only alternative will be to place the burden solely on the injured plaintiff. Comment, “Market Share Liability: An Answer to the DES Causation Problem,”. 94 Harv.L.Rev. 668 (1981).

Other jurisdictions have already moved toward adoption of some form of market-share liability. In Sindell v. Abbott Laboratories, 1980, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140, the Supreme Court of California adopted a market-share theory under which a plaintiff need only name enough manufacturers to represent a “substantial share” of the market. Potentially, each defendant is liable only for the proportion of the judgment represented by its share of the market. Id., 607 P.2d at 937. Theoretically, then, the extent of a defendant’s liability approximates the amount of harm such defendant has caused in the market. South Dakota and Washington also recognize the market-share theory. See, McElhaney v. Eli Lilly & Co., D.S.D.1983, 564 F.Supp. 265; Martin v. Abbott Laboratories, 1984, 102 Wash.2d 581, 689 P.2d 368. Other jurisdictions, while not adopting a market-share theory per se, have modified the traditional alternative liability theory originally developed in Summers v. Tice, 1948, 33 Cal.2d 80, 199 P.2d 1, to accommodate the unique situation of DES litigation. See, e.g., Abel v. Eli Lilly & Co., 1984, 418 Mich. 311, 343 N.W.2d 164, Collins v. Eli Lilly & Co., 1984, 116 Wis.2d 166, 342 N.W.2d 37.

Upon reviéw of the case law concerning market-share liability, the court believes that the theory developed by the Washington Supreme Court in Martin offers the most useful framework for fashioning a market-share theory of liability in Massachusetts consistent with the guidelines articulated by the Massachusetts Supreme Judicial Court in Payton.

2. Market-Share Liability in Massachusetts :

Accordingly, the court holds that a plaintiff who' can not meet the traditional identification requirement may avail herself of a market-share theory of liability by alleging the following elements: (a) that plaintiff’s mother ingested DES during the pregnancy which resulted in plaintiff’s birth; (b) that DES caused plaintiff’s subÍequent injuries; (c) that the defendant or efendants produced or marketed the type f DES taken by plaintiff’s mother; and (d) lat the defendant or defendants acted egligently in producing or marketing the >ES. Plaintiff must prove each of these lements by a preponderance of the evidence. Note well: plaintiff need not allege or prove that a defendant produced or marketed the particular DES that caused her subsequent injuries. Plaintiff must only establish that a defendant produced or marketed the type of DES, as distinguished by color, shape, size or markings, ingested by plaintiff’s mother.

Individual defendants may exculpate themselves from liability by proving by a preponderance of the evidence that they did not produce or market the particular type of DES taken by plaintiff’s mother; or that they did not market DES in the relevant geographic market area; or that they did not distribute the drug during the time period of plaintiff’s mother’s pregnancy.

Defendants who are unable to establish that the DES they produced or marketed could not have been ingested by plaintiff’s mother will become part of the DES market as narrowed and defined on a case-by-case basis by the specificity of the evidence as to geographic market area, time of ingestion, and physical characteristics of the subject DES. The court follows the approach taken by the court in Martin v. Abbott Laboratories, 1984, 102 Wash.2d 581, 689 P.2d 368, for apportioning liability among remaining defendants. Such defendants are presumed initially to have equal shares of the market. However, defendants may rebut this presumption by establishing by a preponderance of the evidence their individual market share of DES in the plaintiff’s particular geographic market during the time period in question. Upon proof of an actual market share, a defendant will only be liable for the portion of the total judgment represented by such share. Of course, other defendants who fail to prove an actual market share will be liable equally for the remaining market. On the other hand, where all defendants successfully establish a reduced actual market share, the portion of the judgment representing the remaining unclaimed share of the market may not be recovered by the plaintiff. The rationale is that unnamed defendants are responsible for the remaining DES distributed in the relevant market and the named defendants should not be held to answer for the negligence of others. Defendants raise several arguments against adoption of such a market-share theory of liability and the court will address them separately.

First, defendants contend that apportionment of liability on this basis violates the letter and spirit of the Payton decision, where the Supreme Judicial Court expressed concern about protecting tortfeasors from liability exceeding their responsibility. However, under the market-share theory set forth in this memorandum of decision, disproportion between potential liability and actual responsibility is significantly reduced. Where each defendant carries its burden of proof with respect to actual market share, no defendant will be held liable in negligence for more harm than it statistically could have caused in the relevant market. Furthermore, the opportunity to present exculpatory evidence reduces the risk of imposing liability on innocent actors. It is conceded that in some situations a defendant will be held liable to a particular plaintiff whose injury it did not actually cause. However, under a market-share theory, a plaintiff must first prove that a defendant acted tortiously before any liability may be imposed. Consequently, a defendant who erroneously is held liable to a particular plaintiff can not be considered wholly innocent of wrongdoing. Such defendant, by engaging in the conduct found to be negligent, contributed to the risk of injury to the public in general and consequently shares some degree of culpability in producing or marketing DES.

Defendants also object to the allocation of the burdens of proof as inequitable and impractical, arguing that plaintiffs, rather than defendant drug companies, have superior access to identification information and that, therefore, defendants should not have the burden of exculpating themselves. This argument, however, proves too much. The fundamental premise of the market-share theory of liability is that the plaintiff lacks sufficient identification information to make out a prima facie case of negligence under traditional principles of tort liability. The absence of such information is largely attributable to the substantial delay in the drug’s effects and the consequent loss of evidence, and the generic marketing methods employed by drug companies to promote and distribute DES. Furthermore, any evidence the plaintiff might possess or have access to concerning the type of DES taken by her mother, the relevant time period, and the place of ingestion is readily obtainable under modern discovery procedures. This is particularly true in the instant case where the defendants have the resources and investigative personnel to pursue all discovery devices. Defendants maintain that the market-share theory of liability will encourage manufacturers who have difficulty proving market share, to implead all other manufacturers since additional defendants will reduce the size of the pro rata share. The experience of courts in other DES cases, however, belies defendants’ apprehension. In fact, the Payton court observed, “in the typical situation, the inquiry narrows down to one or two drug stores and pills that are differentiated in size, shape and color.” Certainly, such evidence is sufficiently specific to enable the majority of DES manufacturers to extricate themselves from the case at the very outset. It would make little sense, then, for a defendant to randomly implead other manufacturers.

Defendants further contend that adoption of a market-share theory of liability by this court would run counter to the important public policy favoring the development and marketing of new drugs cited by the Massachusetts Supreme Judicial Court in Payton. The court disagrees. Imposition of market-share liability for defects or inadequate testing or warnings will likely provide an incentive to product safety. See, e.g., Cronin v. J.B.E. Olson Corp., 1972, 8 Cal.3d 121, 129, 104 Cal.Rptr. 433, 501 P.2d 1153; Rest.2d Torts, § 402A, Comment C, pp. 349-50 (1965). In addition, the market-share theory would encourage manufacturers to either make their products identifiable or to improve their record-keeping procedures when marketing generic products, in order to avoid market-share liability in the future. Comment, “DES and a Proposed Theory of Enterprise Liability,” 46 Fordham L.Rev. 963, 975-978 (1978). These considerations are particularly significant where medication is involved. The consumer is virtually helpless to protect herself from serious, sometimes permanent injuries caused by defective drugs.

Finally, defendants urge the court to require DES plaintiffs to make a showing of “due diligence” before they may employ a market-share theory of liability. Specifically, defendants argue that plaintiff should be required to allege that she has made a good faith effort to identify the particular manufacturer of the DES which caused her injuries, and that, through no fault of her own, she has been unable to do so. This requirement appears to have originated in Abel v. Eli Lilly & Co., 1984, 418 Mich. 311, 343 N.W.2d 164, 173. Defendants contend that without such a requirement, a plaintiff can employ a market-share theory of liability when she discovers that the actual manufacturer is either no longer solvent or in existence.

After carefully considering the effectiveness of a due diligence requirement as a safeguard against abuse by plaintiffs of the market-share theory of liability, the court is persuaded that countervailing considerations mandate. rejection of the requirement. First, as noted ante, any identification information in plaintiff’s possession will be available to defendants through discovery. Defendants argue that initially the plaintiff, rather than defendants, will have access to specific information regarding any DES ingested by her mother. Hence, it is argued, plaintiff should be required to show that she has not contributed to the lack of identification evidence by failing to investigate the facts or delaying the filing of her claim. But this argument ignores the fact that identification evidence, under any theory of liability, facilitates the plaintiff's proof of her claim as much as it does the defendants' proof of a defense. Plaintiffs have little incentive to conceal identification information. To the extent that they can identify a particular manufacturer, they can employ traditional principles of tort liability which provide, upon proof of the claim, for a 100% recovery of the judgment, as well as a simpler, less conjectural remedy probably more appealing to the average juror. In contrast, market-share liability may result in plaintiffs’ only recovering a portion of the judgment, thereby providing incentive to discover the identity of the actual manufacturer. While the court recognizes the potential for abuse, that is not a sufficiently compelling reason for wholesale adoption of a due diligence requirement. In the court’s opinion, normal discovery procedures will prove effective, in most cases, in weeding out wholly unfounded claims.

Furthermore, several considerations strongly counsel against imposing on plaintiffs a requirement of alleging due diligence. First, there may be situations where a plaintiff, confronted with estrangement from her family or the death of her mother, will be unable to satisfy a court that she has genuinely attempted to locate the manufacturer. The due diligence requirement assumes a relationship of confidence between the plaintiff and her mother which may not exist in many cases. A plaintiff may be in no better position than a defendant to discover individualized identification evidence. While a court undertaking a due diligence inquiry would weigh such factors on a case-by-case basis, we decline to impose a requirement that would, in many situations lead to empty allegations by plaintiffs and time-consuming, often fruitless inquiries by courts.

Lastly, the due diligence requirement is fundamentally at odds with the concept of market-share liability. The market-share theory is premised on the inability of a plaintiff to identify the manufacturer that caused her injury. Requiring a plaintiff to allege and prove due diligence is, in essence, requiring her to explain what already can be presumed: the plaintiff has no cause of action under traditional standards of liability. Defendants assert that elimination of the requirement will encourage plaintiffs to delay prosecution of their claims until identification evidence is lost. However, the market-share theory relieves plaintiffs only of the burden of proving causation in fact. Thus, the evidence which defendants fear will be negligently lost or. purposely concealed, will often be plaintiffs’ only evidence of proximate cause and damage. Therefore, plaintiffs have as much incentive to protect such evidence as do defendants. In the court’s view, relevant statutes of limitations can address adequately the problem of unreasonable delay in the prosecution of claims. More importantly, however, the market-share theory adapts the rules of causation and liability to meet the changing needs of product liability litigation. It seems inappropriate, then, to require every plaintiff in every DES case, effectively to prove to the court that prior doctrine will not suffice to govern the obligations of manufacturer to consumer.

D. Defendants’ Motion to Dismiss:

In light of the court’s examination of the essential elements of market-share liability and the applicable burdens of pleading and proof, it is apparent that plaintiff’s second amended complaint states a valid cause of action. Accordingly, defendants’ motion to dismiss plaintiff’s market-share claim must be denied.

Plaintiff has alleged that her mother ingested DES during the pregnancy which resulted in plaintiff’s birth; that plaintiff is suffering from vaginal adenosis; that the DES caused plaintiff’s injury; that defendants produced or marketed the type of DES product taken by plaintiff’s mother; and that defendants acted negligently in producing or marketing the drug. In addition, plaintiff’s complaint contains allegations concerning the time of her mother’s ingestion of the drug and the geographical boundaries of the relevant market. Such allegations support a market-share theory of recovery that, in this court’s view, meets the concerns of the Massachusetts Supreme Judicial Court. Defendants’ motion to dismiss is therefore denied.

II. DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Defendants The Upjohn Company and Dart Industries, Inc. have moved for summary judgment against plaintiff. As grounds therefor, both defendants state that the undisputed facts demonstrate that neither of them manufactured or distributed the DES which caused plaintiff’s injuries. The function of the court in deciding a motion for summary judgment is to determine whether the moving party has met its burden of demonstrating that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. F.R.C.P. Rule 56(c). The court must look at the record in the light most favorable to the party opposing the motion. After hearing and consideration of the briefs, affidavits and exhibits submitted by the parties, the court grants the motions of these two defendants.

A. Upjohn Company’s Motion:

The uncontroverted testimony of plaintiffs mother, Mrs. Vendito, is that the DES she took during her pregnancy with plaintiff, was in the form of “little white pills” about the size of saccharin tablets, and “little orange or little red pills,” “very small,” with a hard, coated surface “like an M & M,” but smaller in size. Plaintiff does not offer any evidence which would call the accuracy of Mrs. Vendito’s descriptions into question. Furthermore, defendant has submitted the affidavit of Raymond H. Schoening, an employee of defendant, which states that “The Upjohn Company has never developed, manufactured, distributed, marketed, advertised, sold or resold,” DES in any form other than a spherical, gelatinous perle filled with fluid.

Plaintiff, on the other hand, merely asserts that her mother’s memory is vague and thus a genuine issue exists as to the physical characteristics of the DES she ingested. The only evidence plaintiff offers to controvert Schoenfield’s affidavit that Upjohn only manufactured and sold DES in the form of oval-shaped, gelatinous perles is the bare assertion that his affidavit is conclusory and that defendant, instead of submitting the affidavit, “could have shown Mrs. Vendito a photographic array of pills or samples.” Such assertions do not establish a genuine issue of material fact. On the contrary, the undisputed evidence here is precisely the kind of proof contemplated by the court as sufficiently exculpatory to exclude a defendant as a matter of law from liability under the market-share theory of recovery.

B. Dart Industries, Inc. ’s Motion :

Defendant, formerly known as Rexall Drug Company, in support of its motion for summary judgment, offers uncontroverted evidence that Mrs. Vendito’s DES prescription was filled at only one drugstore, the Shirley Drugstore in Revere, Massachusetts, and the testimony of Samuel Harvey Kohn who worked part-time at the Shirley Drugstore from 1949 to 1953, and then became a pharmacist at the drugstore until 1959. Mr. Kohn testified in a deposition that he did not recall ever seeing a prescription that specified Rexall DES; that DES prescriptions were filled with brands other than Rexall; that the Shirley Drugstore could not purchase Rexall products from its wholesalers; that at no time during his employment at the drugstore was there a Rexall order book; and that the drugstore was not a Rexall store between 1953 and 1959. Kohn further testified that he did not think the drugstore carried any Rexall products during the relevant time period. In addition, defendant relies on the affidavits of Rexall’s national counsel, Grashof, and Rexall’s Sales Administrator, Secrist, who set forth Rexall’s distribution limitations for all its products during the relevant time period. Specifically, the affiants state that Rexall sold its pharmaceutical products only to its licensed franchisees or company-owned stores. Rexall never sold its products nor offered free samples to any other party, including hospitals and physicians. Finally, Mr. Secrist states that Rexall, which maintains records of all accounts to which it has ever sold its pharmaceutical products, has reviewed such records and concluded that the Shirley Drugstore has never been able to purchase Rexall products.

Plaintiff, in opposition to the motion, argues that the testimony of Kohn is inconclusive and further, that defendant may not rely on records which it has not produced or made available to plaintiff. However, as far as the court can tell, plaintiff has made no attempt to discover the records on which the affidavits of defendant’s employees are based. Nor has plaintiff offered any evidence which would cast doubt on the accuracy of the records or the statements of the affiants. Furthermore, plaintiff has not made a sufficient showing with respect to the inconelusiveness of Kohn’s testimony. A fair reading of the testimony reveals that as far as Kohn can recall, the Shirley Drugstore never sold or stocked Rexall DES. Plaintiff would have the court conclude that because Kohn can not state with absolute certainty that the drugstore never sold any Rexall DES, a genuine issue exists as to whether Rexall supplied the DES ingested by plaintiff’s mother. However, plaintiff offers no other reason for questioning the credibility of Kohn or the two affiants.

Defendant further argues that the borrowing practices of the Shirley Drugstore also do not raise any genuine issue of material fact. Defendant relies on Kohn’s deposition testimony that the only Rexall product he ever remembers borrowing or purchasing from another drugstore was a bottle of vitamins. Mr. Kohn stated that although it was possible that the Shirley Drugstore could have borrowed DES from another drugstore, he did not recall ever borrowing DES. Defendant also cites Judge Skinner’s decision after decertification of the plaintiff class, in Payton v. Abbott Labs et al., 76-1514-S, granting defendant’s motion for summary judgment on March 1, 1984, in which the court addressed the issue of borrowing on a similar record, as follows:

There is a possibility that on the particular occasion when plaintiff’s mother bought her DES, the druggist was out of stock and chose to borrow some DES from this Rexall store. There is no evidence on this point. All that exists is a mere possibility. There is no basis of inferring a significant probability that such an event ever occurred. Accordingly, the statistical probability that is one of the underpinnings of the plaintiff’s market-share theory is skewed to the point where it is no longer a rational basis for imposing liability on Rexall.

The court also notes that plaintiff does not even raise the issue of borrowing in her memorandum in opposition to defendant’s motion. In the absence of affirmative eviydence to the contrary, any issue as to the Shirley Drugstore’s borrowing practices is far too speculative to amount to a genuine issue of a material fact.

Based on the uncontroverted facts in the record, the court holds that no genuine issue exists as to whether Rexall supplied the DES which caused plaintiff’s injury and that defendant Dart Industries is entitled to a judgment as a matter of law. The market-share theory of liability herein espoused, while premised on the failure of evidence of causation in fact, does not preclude a defendant from disproving individual responsibility for plaintiff’s injuries.

      . The complaint names 6 drug companies as defendants and alleges that these 6 companies are responsible for a substantial share of the DES distributed in Eastern Massachusetts between July, 1974 and April, 1975. The court presumes plaintiff intended 1954 and 1955 as the relevant dates.

      . In Payton v. Abbott Labs, D.Mass., 1982, 551 F.Supp. 245, the court granted defendants’ motions for summary judgment on all theories of joint and several liability. Consequently, plaintiff does not advance, and the court does not consider alternative liability as a theory of recovery.

      . It will, of course, be plaintiff s burden to prove negligent manufacture or marketing.

      . Assume hypothetically, five prima facie defendants, of whom one shows an actual share of 12%. The four remaining defendants will each be potentially liable for 22%. Suppose, instead, that one shows an actual share of 12% and a second of 13% — the three remaining defendants will then each be potentially liable for 25%.

      . Assume hypothetically, five prima facie defendants who show that their actual shares are, respectively, 5%, 10%, 15%, 20% and 25%. Plaintiff could recover a maximum of 75% of her damages.


source: Caselaw Access Project

author: CALDWELL, District Judge.

license: Public Domain

text:
    Douglas FISHEL, Sr., et al., Plaintiffs, v. WESTINGHOUSE ELECTRIC CORPORATION, et al., Defendants.
    Civ. A. No. 85-0216.
    United States District Court, M.D. Pennsylvania.
    Oct. 1, 1985.

      Albert J. Slap, Gerald J. Williams, Slap & Williams, Philadelphia, Pa., for plaintiffs.
    Thomas W. Scott, Killian & Gephart, Harrisburg, Pa., for defendant Frederick Shealer.
    Terry R. Bossert, McNees, Wallace & Nuriek, Harrisburg, Pa., Jacob P. Hart, Schnader, Harrison, Segal & Lewis, Philip J. Katauskas, Maida Rosenfeld Crane, Alison M. Benders, Philadelphia, Pa., for Westinghouse Elec. Corp. et al.
    Jordan D. Cunningham, Harrisburg, Pa., for Sara Kulp and Anna Wishard.
   MEMORANDUM

CALDWELL, District Judge.

I. Introduction

Defendant, Westinghouse Electric Corporation (Westinghouse), has filed a motion to dismiss. The numerous plaintiffs in this action oppose that motion and have filed their own motion for partial summary judgment. Plaintiffs are neighbors of Westinghouse’s plant in Gettysburg, Pennsylvania, and of sites used by defendant, Frederick M. Shealer, to dispose of industrial wastes generated at the Gettysburg plant. The complaint alleges, inter alia, violations of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (CERCLA), the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (RCRA), and the Clean Water Act of 1977, 33 U.S.C. § 1251 et seq. (CWA), in connection with the disposal of the wastes.

II. Discussion

A. Procedural Aspects of the Motions.

Before turning to the merits of the motions, we will address some procedural aspects raised by defendant. First, as defendant correctly points out, because it has submitted an affidavit in support of its motion to dismiss, we should treat that motion as a motion for summary judgment. See Fed.R.Civ.P. 12(b). Defendant also points out some defects in plaintiffs’ motion. It argues that the exhibits and affidavit submitted by plaintiffs in support of their counter-motion for summary judgment are defective in the following respects. The documents, consisting of governmental reports and letters concerning the various sites, allegedly cannot be considered because they were not authenticated. Plaintiffs have cured that defect in their reply brief, however, by submitting affidavits from appropriate governmental officials, attesting to their authenticity and that they are copies of official reports.

Defendant, next argues that the affidavit of Michael C. Havener, plaintiffs’ expert, is defective because: (1) he makes legal conclusions on ultimate issues; (2) he invades the fact finders’ role by actually weighing the evidence; (3) his conclusions are often tentative and not based upon any standard of reasonable scientific certainty and; (4) generally, expert opinion should not form the basis of a summary judgment motion.

Some of these objections are well taken but we believe that we do not have to rely upon the affidavit at all to reach the merits of plaintiffs’ motion. The affidavit simply summarizes the findings of the investigators of the sites and Havener has not brought his expertise to bear on the case. Defendant does not contest the accuracy of the documents and we will rely upon the Havener affidavit solely as a guidepost to the information contained in the reports which can be considered substantive evidence. See Fed.R.Evid. 803(6), (8).

We turn now to the merits of the motions.

B. Plaintiffs Do Not Need Prior Governmental Approval to Assert a CERCLA Claim.

The CERCLA claim against Westinghouse is predicated upon 42 U.S.C. § 9607(a)(2), (3) and 4(B) which provides, in pertinent part, as follows:

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement or otherwise 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 owned or operated by another party or entity and containing such hazardous substances, ... shall be liable for—
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan____

Plaintiffs allege that this section authorizes their private lawsuit against Westinghouse and other responsible defendants for recovery of their response costs. Westinghouse, conceding that the section creates a private cause of action, nevertheless, contends that for the recovery to be “consistent with the national contingency plan,” plaintiffs must first obtain governmental approval from the federal or state government of their response costs before seeking recovery from persons made responsible under CERCLA.

There is a split of authority in the district courts concerning this issue. Some courts have held that governmental approval of the private party’s plan for cleaning up the hazardous wastes- is necessary prior to bringing suit. See, e.g., Artesian Water Co. v. Government of New Castle County, 605 F.Supp. 1348 (D.Del.1985) (requiring governmental approval for long term remedial action); Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F.Supp. 1437 (S.D.Fla.1984); Wickland Oil Terminals v. Asarco, Inc., 590 F.Supp. 72 (N.D.Cal. 1984). Others have held that such prior approval is not necessary. See Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F.Supp. 283 (N.D.Cal.1984); Homart Development Co. v. Bethlehem Steel Corp., 22 Env’t Rep.Cas. (BNA) 1357 (N.D. Cal.1984).

Courts that have required prior government approval have generally relied upon provisions in the NCP detailing appropriate governmental action in connection with a hazardous waste site as well as general policy considerations leading the court to conclude that the government should be involved in any response action, governmental or private. Bulk Distributions Centers is illustrative. There, the court noted that, in dealing with the release of a hazardous substance, the “lead agency” (federal or state) must make a preliminary assessment of the release, 40 C.F.R. § 300.-64, and that the agency continues under the regulations to have an active role in developing a response to the problem. Further, the court reasoned that, in its view:

[T]he only practical way to safeguard the public’s interest, while fairly mediating the competing concerns of the parties potentially responsible for cleaning up the release, is for the government to approve the clean-up proposal before it is implemented by the private parties.
The government certainly is in a better position than are private parties to pass judgment on the efficacy of a clean-up proposal. To begin with, state or federal environmental agencies possess scientific and technological sophistication, along with an appreciation of the problems arising from hypertechnical environmental standards. Additionally, the clean-up proposal must comply with laws that the state or federal governments enforce, so it follows that their approval of a plan would be desirable to reduce a party’s exposure to liability. See generally Ada-Cascade Watch Co. v. Cascade Resource Recovery, Inc., 720 F.2d 897 (6th Cir.1983).

Id. at 1446 (brackets added).

Homart Development Corp., supra, exemplifies the opposite position. There, the court concluded that prior governmental approval was not necessary because CERCLA contemplated a “dual approach to the cleaning up of hazardous wastes,” 22 Env’tRep.Cas. at 1367: (1) federally funded clean-up of waste sites and (2) because federal funds were limited, private cleanups funded by lawsuits against private parties. The liberal purpose of the Act in attempting to clean up environmental hazards would be fulfilled by permitting private actions with the question of whether the costs were consistent with the national contingency plan to be resolved at trial.

The Bulk Distributors approach is not without its merits but we believe that the courts in Homart Development Corp. and Pinole Point Properties, Inc., supra, have adopted the better view. It places the clean up of hazardous waste sites upon the responsible parties without placing a financial burden upon the government. In this regard, it is significant that prior governmental approval is only specifically required in the Act when reimbursement for response costs is sought from the government. See 42 U.S.C. § 9611(a)(2).

Our interpretation of CERCLA is in accord with the EPA’s recent, proposed modifications of the NCP. Those modifications clearly would not require a private party to seek EPA approval before instituting a response cost recovery action against responsible parties. See 50 Fed.Reg. 5,879 (1985) (to be codified at 40 C.F.R. § 300.61(e)). Compare Artesian Water Co., supra (pri- or governmental approval required based, in part, on interpretation of current regulations indicating that EPA had rejected unlimited right of individuals to sue for response costs).

C. Group IV Has Alleged That They Have Incurred Response Costs.

Group IV consists of neighbors who reside near the Hunterstown Road site and who have not experienced any contamination of their wells. Defendant contends that they cannot maintain a CERCLA action because they have not alleged that they have incurred some response costs. Such response costs are necessary before a CERCLA action can be brought. See Bulk Distribution Centers, supra. While the complaint is not as clear as might be desired in this regard, we believe that it adequately sets forth a claim that Group IV has, in fact, incurred response costs (see complaint, ¶ 307) and accordingly sets forth a valid CERCLA claim.

D. Plaintiffs’ Gave Proper Notice of Their RCRA and CWA Causes of Action.

Section 7002(b)(1) authorizes a private cause of action under RCRA provided that “[n]o action may be commenced” under that section “prior to sixty days after the plaintiff has given notice of the violation ... to any alleged violator.” 42 U.S.C. § 6972(b)(1). The CWA contains a similar provision. See 33 U.S.C. § 1365(b)(1)(A). Defendant contends that the claims under these Acts should both be dismissed because the combined notice it received of them was deficient. In support of dismissal of the RCRA claims, defendant also cites the notice regulation contained in 40 C.F.R. § 254. For dismissal of the CWA claim, Westinghouse cites Loveladies Property Owners Ass’n v. Raab, 430 F.Supp. 276 (D.N.J.1975), aff'd mem. 547 F.2d 1162 (3d Cir.1976), cert. denied, 432 U.S. 906, 97 S.Ct. 2949, 53 L.Ed.2d 1077 (1977).

Defendant does not contend that plaintiffs violated the sixty day waiting period; only that substantively the notices were deficient. Specifically, Westinghouse complains that plaintiffs’ allegations are sweeping, nonspecific and fail to set forth, as required by 40 C.F.R. § 254.3(a), the specific permit, standard, regulation, condition, requirement or order allegedly violated, the activity causing the violations, the persons responsible for the violations, and the dates of the violations.

In construing the statutory notice provisions, we are guided by Proffitt v. Commissioners, Township of Bristol, 754 F.2d 504 (3d Cir.1985). There, discussing the notice provisions at issue in the case at bar, the Third Circuit Court of Appeals, stated:

The purpose of the sixty-day notice requirement is to obviate the need for resort to the courts by prompting either administrative enforcement of the laws or voluntary compliance by alleged violators. See, e.g., Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231, 243 (3d Cir.1980); Friends of the Earth v. Carey, 535 F.2d 165, 175 (2d Cir.1976) (construing identical notice provision of the Clean Air Act, 42 U.S.C. § 7604(b)(1)(A)).
Nevertheless, these citizen suit provisions evince a legislative intent that “citizen[s] are not to be treated as nuisances or troublemakers but rather as welcome participants in the vindication of environmental interests.” Friends of the Earth, 535 F.2d at 172. Mindful of this legislative intent, this and other courts have consistently held that the sixty-day notice provisions should be applied flexibly to avoid hindrance of citizen suits through excessive formalism. See, e.g., Pymatuning Watershed Citizens for a Hygienic Environment v. Eaton, 644 F.2d 995, 996 (3d Cir.1981) (per curiam); Susquehanna, 619 F.2d at 243; Friends of the Earth, 535 F.2d at 175. Thus in Susquehanna, this court held that the notice requirement for a citizen suit under WPPCA is met by a showing that the defendants and administrative agencies had actual notice of the alleged violations more than sixty days before the suit was filed. See 619 F.2d at 243.

Id. at 506.

Plaintiffs’ notice, and amendment thereto, sets forth the locations of the violations, the names of the people seeking compensation under RCRA and CWA and the alleged violations of the Acts, including storing and disposing of hazardous wastes without a permit, maintaining an open dump, creating an imminent and substantial danger to health or the environment, and discharging pollutants into the navigable waters of the United States without a permit. This notice was sent to Westinghouse as a person responsible for the violations.

We reject out of hand Westinghouse’s contention that the specific regulations should have been mentioned in the notice. It is sufficient that information easily leading to the regulations was supplied. As we read the notice, it is arguably deficient in failing to set forth: (1) the activity alleged to constitute the violations, and (2) the dates of the violations. We must bear in mind, however, that the regulations required the plaintiffs only to supply “sufficient information to permit the recipient to identify” these aspect, among others, of the claim. 40 C.F.R. § 254.3(a). The EPA and the Pennsylvania Department of Environmental Resources (DER) had been conducting investigations of the contaminated sites listed in the notice for many months prior to the date of the notice. In this context, Westinghouse had sufficient actual notice of the alleged violations to respond in an adequate fashion to plaintiffs. Accordingly, their claim of an insufficient notice must be rejected.

E. Plaintiffs Have Stated a Good Cause of Action Under RCRA For Violations of the Permit Requirements and Regulations Promulgated Pursuant to That Act.

Westinghouse next contends that, because it never intentionally used its plant site as a dump, it did not have to meet the permit requirement and regulations promulgated to enforce RCRA in connection with disposal facilities. Conversely, plaintiffs contend that Westinghouse did, in fact, intentionally dump hazardous wastes on its Gettysburg plant site along with some accidental dumping. In addition to cleaning grates used in its factory over a storm drain leading to the water supply for neighbors, plaintiffs argue that the above conduct violates RCRA in respect to hazardous waste facilities and also RCRA open dumping regulations.

After review of the pertinent statutory sections and regulations we conclude that plaintiffs have stated a good cause of action for a hazardous waste facility disposal violation based upon the storage of solvents on two areas of the plant. Plaintiffs have failed to make out an open dumping violation or any violation under RCRA for the use of the storm drain.

Defendant relies upon the affidavit of Kenneth E. Hess, Supervisor of Plant Engineering at the Gettysburg plant. Hess declares that the plant’s wastes are currently shipped for off-site disposal and that, when they are on the premises, they are handled in compliance with storage regulations. See 40 C.F.R. § 262.34. We agree with plaintiffs that this affidavit is irrelevant to past violations of RCRA. Westinghouse’s current practice in regard to hazardous wastes has no bearing upon what it might have done in the past.

The complaint sets forth two areas of misconduct by Westinghouse at its plant. One was the cleaning of grates over a storm drain (Complaint, 1169); the other was the storage and eventual leakage of solvents into the ground at two locations on the plant site. (Complaint, 119, 72, 73). In connection with the latter conduct, we believe that the allegations of the complaint can fairly be read to charge Westinghouse with intentional disposal of wastes on the site (Mi 72-73) and, hence, the site comes within the definition of a waste disposal facility.

RCRA requires all waste disposal facilities to have a permit, see 42 U.S.C. § 6925(a), and to abide by the regulations of the EPA for the operation of a waste disposal facility. See 42 U.S.C. § 6924. The pertinent regulation defines a “disposal facility” as follows:

a facility or part of a facility at which hazardous waste is intentionally placed into or on the land or water, and at which hazardous waste will remain after closure.

Therefore, Westinghouse’s intentional use of its plant site could result in its being subject to regulations as a disposal facility.

We reject plaintiffs’ contention that an accidental discharge of wastes could subject Westinghouse to such regulation. In support of this theory, plaintiffs cite the definition of “discharge,” included in the definition of “disposal,” found at 40 C.F.R. § 260.10(a) as follows: “the accidental or intentional spilling, leaking, pumping, emitting, emptying, or dumping of hazardous waste into or on any land or water.” (emphasis added) While this definition refers to an accidental placing of hazardous waste on land and water, we believe that the most pertinent definition is the one cited by defendant for “disposal facility,” which clearly contemplates intentional conduct on the part of the operator. This construction of the regulations makes sense, of course, because a person could hardly be called upon to obtain a permit for property upon which he does not anticipate disposing of wastes.

Plaintiffs also assert that Westinghouse violated the open dumping provision of RCRA. We agree with defendant, however, that, under the Act, a claim cannot be made for violations of waste disposal facility regulations and for a violation of the open dumping prohibition. RCRA contains the following definition of “open dump”:

The term “open dump” means any facility or site where solid waste is disposed of which is not a sanitary landfill which meets the criteria promulgated under section 6944 of this title and which is not a facility for disposal of hazardous waste.

This definition clearly excludes hazardous waste disposal facilities from consideration as open dumps. See also 40 C.F.R. § 257.-1(c)(8). Because it is not clear, however, whether Westinghouse maintained a disposal facility at its plant we will leave the issue open for now and only note that the claims cannot be brought simultaneously.

Finally, we turn to plaintiffs’ contention that the washing of grates used in the manufacturing process at the plant over a storm drain on the facility is covered by the RCRA. A review of the pertinent statutory section and regulations indicates that this type of discharge is not covered by RCRA. “Hazardous waste” is included within “solid waste.” Solid waste in turn is defined to exclude “industrial discharges which are point sources subject to permits under section 1342 of Title 33 ____” 42 U.S.C. § 6903(27). Regulations promulgated pursuant to the CWA define a “point source” as, in pertinent part: “any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container ... from which pollutants are or may be discharged.” The drain is obviously within this definition and any disposal of industrial wastes through the drain should be dealt with under the CWA.

F. The Existence of the Section 106 Order Does Not Bar Any of Plaintiffs’ RCRA Claims.

Westinghouse contends that the plaintiffs cannot maintain a private action under the RCRA because of the outstanding section 106 order, issued by the EPA under CERCLA. The following RCRA section is pertinent to the argument and deals with citizens’ suits:

(a) In general
Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf—
(1)(A) against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or
(B) against any person ... and including any past or present generator ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment____
(b) Actions prohibited
(2)(A) ....
(B) No action may be commenced under subsection (a)(1)(B) of this section if the Administrator, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment—
(iv) has obtained a court order ... or issued an administrative order under section 106 of [CERCLA] ... pursuant to which a responsible party is diligently conducting a removal action, Remedial- Investigation and Feasibility Study (RIFS), or proceeding with a remedial action.
In the case of an administrative order referred to in clause (iv), actions under subsection (a)(1)(B) of this section are prohibited only as to the scope and duration of the administrative order referred to in clause (iv).

42 U.S.C. § 6972 (brackets added).

Westinghouse contends that the EPA and DER investigated its plant site, and four other sites used by defendant, Frederick Shealer, but the EPA ordered it to perform response actions only at two of the sites, Hunterstown Road and Shriver’s Corner. It contends that the plaintiffs’ attempt to force it to perform further remedial action at its plant site is an attack upon the scope of the CERCLA order in violation of § 6972(b)(2)(B)(iv). Plaintiffs contend, on the other hand, that because the order is limited to those two sites, and only to removal of contaminants from the surface of one site and from a lagoon on the other, they are free to seek enforcement of other remedial options. In their view, they are not attacking the scope of the order since they are not seeking review of the EPA’s order dealing with the drums and lagoon. Rather, their concern is directed to subsurface contamination and its affect upon their drinking water. This is outside the scope of the section 106 order and not barred by section 6972(b)(2)(B)(iv).

The dispute boils down to the meaning of “scope” within the statutory section. Does it refer solely to the response actions ordered by the Agency or does it also include actions the agency could have required on the part of the responsible party but did not? The legislative history is of assistance here. The conference committee report, representing the final statement of terms agreed to by both houses, next to the statute itself, is the most persuasive evidence of congressional intent. Sierra Club v. Clark, 755 F.2d 608 (8th Cir.1985); Monterey Coal Co. v. Federal Mine Safety and Health Review Comm’n, 743 F.2d 589 (7th Cir.1984). The report, cited by plaintiffs, states the following in connection with this specific limitation upon citizens’ suits:

The Conferees intend that the section 7002(b)(2)(B)(iv) prohibition be limited only to the scope and duration of the court or administrative order. For example, an administrative order issued under section 106 of CERCLA or section 7003 of RCRA for surface cleanup at a site would not bar an action alleging that groundwater contamination at the site may present an imminent and substantial endangerment.

1984 U.S.Code Cong. & Ad.News 5576, 5649, 5689.

The conference committee report indicates that the plaintiffs’ interpretation is the correct one. Because they are not challenging the scope of the already existing actions ordered by the EPA, and seek only to add to those actions, their citizens’ suit may proceed.

G. Plaintiffs Have Not Set Forth a Cause of Action Under the CWA For the Storm Drain Discharge But Have Done So For the Air Shipping Tower.

As noted previously, Westinghouse cleaned grates used in its manufacturing process by rinsing them off over a storm drain on its property. The drain led into an unnamed tributary of Rock Creek adjacent to its plant site. It also operated an air shipping tower for awhile with the temporary permission of DER. The tower drew hazardous substances out of the ground water and discharged them into the tributary. Plaintiff contends that both of these activities violated the CWA by emitting hazardous substances into the waters of the United States. Westinghouse contends that because the run off was into a storm drain, it did not have to have a permit at the time the drain was used, and that Pennsylvania’s permission to operate the air stripping tower forecloses a claim for that activity.

Plaintiffs argue that the storm water run off is really process waste water, not storm water, and subject to CWA control because the cleaning of the grates is a part of the manufacturing process. We disagree. The definition of “process waste water” is as follows:

any water which, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, by product, or waste product.

40 C.F.R. § 117.1®.

The water running through the storm drain does not meet this definition because it did not come into direct contact with any raw material, etc., during the manufacturing process. That process was completed before the grates were cleaned. Since a permit was not required for storm water point sources until at least April 26, 1985, 49 Fed.Reg. 37,998 (1984), and under proposed regulations not until December 31,1985, 50 Fed.Reg. 9362 (1985), defendant could not have violated CWA provisions in connection with any contaminated storm water run off.

We do, however, conclude that a violation can be found in connection with the air stripping tower. While we can find no authority for its conduct, DER notified Westinghouse by letter that it could for a temporary period operate the tower with certain effluent limitations. Assuming that this letter could have constituted a valid NPDES permit, Westinghouse apparently violated the terms of the “permit” in discharging contaminated water. DER refused to extend permission any further when water samples apparently revealed violations of its original letter permit. Resolution of this issue can await a further record because on the documents before us, we cannot decide what, in fact, was the applicable standard Westinghouse had to meet in operating the air stripping tower.

H. Group IV Plaintiffs Have Standing to Assert RCRA and CWA Claims.

Group IV plaintiffs are “residential property owners who do not presently have hazardous substances from the Hunters-town Road site contaminating their wells, but are within the zone of impact as defined by EPA ____” (Complaint, ¶ 291). Defendant asserts that they lack standing because they could not have suffered an injury in fact without actual contamination of their property. We recently considered the standing issue in Harrisburg Hospital v. Thornburgh, 616 F.Supp. 699 (M.D.Pa. 1985). There, we quoted from Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595, 610 (1978) as follows:

The essence of the standing inquiry is whether the parties seeking to invoke the court’s jurisdiction have “alleged such a personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 7 L.Ed.2d 663, 82 S.Ct. 691 [703] (1972). As refined by subsequent reformulation this requirement of a “personal stake” has come to be understood to require not only a “distinct and palpable injury,” to the plaintiff, Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), but also a “fairly traceable” causal connection between the claimed injury and the challenged conduct. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555 [561], 50 L.Ed.2d 450 (1977).

Harrisburg Hospital, supra, at 702.

Additionally, the injury may be a threatened one. See Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

We have no doubt that the Group IV plaintiffs meet the above criteria. They do not simply have an “interest” in the problem as was the situation in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), cited by defendant. Rather, their claimed injury is a personal one since they adjoin land and water that have already been contaminated, and they seek to prevent the threatened spread of the pollution to their own land. They clearly have standing.

I. Plaintiffs May Seek Civil Penalties For Past Violations of the CWA.

Westinghouse asserts that civil penalties can only be sought in a citizens’ suit for a violation of the CWA occurring at the time of the filing of the complaint. The citizens’ suit provision of the CWA, provides in relevant part, as follows:

(a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf—
(i) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this subchapter or (b) an order issued by the Administrator or a State with respect to such a standard or limitation

33 U.S.C. § 1365(a).

Because Westinghouse could not be alleged “to be in violation” at the time of filing of the complaint, Westinghouse contends that it cannot now be found liable for past violations of the Act, citing Hamker v. Diamond Shamrock Chemical Co., 765 F.2d 392 (5th Cir.1985). Plaintiffs cite a number of cases which have reached the opposite conclusion. See, e.g., Student Public Interest Research Group of New Jersey, Inc. v. Monsanto Co., 600 F.Supp. 1474 (D.N.J. 1985); Chesapeake Bay Foundation v. Gwaltney of Smithfield Ltd., 22 Env’t. Rep.Cas. (BNA) 2121 (E.D.Va.1985); Sierra Club v. Raytheon Co., 22 Env’t.Rep. Cas. (BNA) 1050 (D.Mass.1984).

We have carefully reviewed the cases cited by both sides. We agree with those courts which have permitted civil penalties for past violations. The court in Student Public Interest Research Group stated it succinctly as follows:

The defendant argues that “in violation" clearly refers to violations in the present, that is, occurring no earlier than the date of suit. The court does not believe that “in violation” necessarily confines violations to those presently or prospectively occurring.
A plausible construction of the language is that one is “in violation” and continues to be “in violation” by having “violated.” In any event, however, the next paragraph of § 1365(a) quite specifically refers to the court’s power to impose civil penalties in citizens’ suits and contains no limiting time frame. This would seem to defeat defendant’s argument.

600 F.Supp. at 1476.

J. Disposition of Plaintiffs’ Motion.

In accordance with the foregoing discussion, we will dispose of plaintiffs’ motion as follows. Initially, we note that doing so has been made more difficult because plaintiffs have failed to set forth a specific request for relief, seeking only partial summary judgment generally. Havener’s affidavit concerns only the Westinghouse plant site. Based upon the references contained in the affidavit, and defendant’s failure to contest the accuracy of the supporting documents, plaintiffs have established that hazardous substances were stored and eventually released into the soil and water at the Westinghouse plant site (Havener affidavit, ¶¶ 3, 5, 9 and 11). Consequently, defendant Westinghouse is liable to neighbors at the site for response costs. Such response costs can be determined in a later, appropriate proceeding.

We will issue an appropriate order.

ORDER

AND NOW, this 1st day of October, 1985, it is ordered that:

1. Plaintiffs’ motion for partial summary judgment is granted as to their first cause of action. In all other respects, the motion is denied.
2. Judgment is hereby entered for plaintiffs on their first cause of action against defendant, Westinghouse Electric Corporation.
3. Defendant, Westinghouse Electric Corporation’s, motion for summary judgment is hereby denied.
4. A scheduling conference will be held with counsel in my chambers on Wednesday, October 9,1985 at 11:00 a.m. for the purpose of scheduling discovery, joinder of parties, the filing of motions, etc. With the agreement of counsel this conference may be held by telephone conference call, to be arranged and placed by counsel as they may agree (782-3701).

      . The “national contingency plan” (NCP) is found at 40 C.F.R. § 300 et seq. It was promulgated by the Environmental Protection Agency (EPA), pursuant to delegated authority from the President, to establish guidelines for appropriate responses to environmental hazards. See 40 C.F.R. §§ 300.1, 300.2.

      . 40 C.F.R. § 135.3, dealing with the notice requirements under the CWA, is substantially similar although, of course, it concerns violations of the CWA.

      . An "NPDES permit” refers to the National Pollutant Discharge Elimination System and permits issued pursuant to CWA. The DER is authorized to issue such permits.

      . References to paragraph numbers of the affidavit shall be for convenience and actually shall refer to the document numbers of the plaintiffs’ appendix referred to in the affidavits.