ELR Citation: ELR 21363
No(s). 92-2365 (7th Cir. Aug 12, 1993)

The court holds that a chemical manufacturer that shipped a hazardous solvent to a customer's plant for use, rather than disposal, is liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for spills from its own trucks, but not for spills from the common carrier it hired. The court first holds that the district court was not required to apportion liability in a CERCLA §107(a)(4)(B) contribution suit by the owner of the contaminated property against the manufacturer. The manufacturer should have brought a counterclaim for the percentage of the costs that it believed it could prove was due to the plaintiff's own conduct. The court next holds that the trucks are "facilities" within the meaning of CERCLA §101(9)(A). The §101(9) exception to the definition of facilities for consumer products in consumer use applies literally only to facilities that are themselves consumer products in consumer use (such as a can of lye), not facilities that contain consumer products. Therefore, the chemical manufacturer is liable for the spills from its own trucks as the owner of a facility from which a hazardous substance has been released. The court next holds that although the spills from the trucks constituted disposal of a hazardous substance, the chemical manufacturer did not "arrange for disposal" within the meaning of CERCLA §107(a)(3) when it hired the common carrier. Because the solvent was shipped for initial use, not for disposal, the manufacturer is not liable for spills from the carrier's trucks as one who arranged with a transporter for transport for disposal or treatment of hazardous substances.

Counsel for Plaintiffs-Appellees
D. Jeffrey Ireland
Faruki, Gilliam & Ireland
600 CtHse. Plaza
10 Ludlow St., Dayton OH 45402
(513) 227-3700

Counsel for Defendant-Appellant
Arthur Surgine
Hunt, Suedhoff, Borror & Eilbacher
803 S. Calhoun St., 9th Fl., Fort Wayne IN 46802
(219) 423-1311

Before POSNER, FLAUM, and KANNE, Circuit Judges.