ELR Citation: ELR 20573
No(s). 90-3958 (6th Cir. Jan 7, 1993)

The court holds that private parties may contractually shift liability for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) among themselves. The court first holds that the purpose of CERCLA §107(e)(1) does not prohibit parties from transferring or allocating costs of liability among responsible parties through release agreements, as long as they remain liable to the third party who can demand the cleanup. The court notes, however, that a release of all claims is not automatically effective under Ohio law. The courts remands the action for further fact-finding on the issue of whether the contractual release was effective. Addressing the liability of the vendor should the release not bar CERCLA's action, the court holds that the vendor of real estate and manufacturing equipment is not a liable party under CERCLA §107(a)(3), because it neither abandoned the hazardous substances nor arranged for their disposal. The chemicals were still useful when the vendor left them at the site, the purchaser acted as though it intended to keep them, and the transfer of a useful substance for a useful purpose does not constitute disposal. Having concluded that the vendor is not liable under CERCLA §107(a), the court does not consider the proper apportionment of liability under CERCLA §113(f).

[The district court's opinion is published at 21 ELR 20332.]

Counsel for Plaintiff-Appellee
Michael Barry
Gardner, Carton & Douglas
Quaker Tower
321 N. Clark St., Ste. 3400, Chicago IL 60610
(312) 644-3000

Counsel for Defendants
Michael L. Hardy
Thompson, Hine & Flory
1100 Nat'l City Bank Bldg.
629 Euclid Ave., Cleveland OH 44114
(216) 566-5500

Before: RYAN and NORRIS, Circuit Judges; and DUGGAN, District Judge.^*