ELR Citation: ELR 21212
No(s). CV. 89-119-MA (D. Or. Feb 6, 1996)

The court holds that a truck-parts manufacturer is liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for 70 percent of the costs it and an airplane manufacturer incurred in investigating and remediating contamination of an aquifer. Both manufacturers own property over or near the aquifer, used at their properties the chlorinated solvent contaminants found in the hazardous-substance plume in the aquifer, and incurred investigation and remediation costs at the site. The airplane manufacturer sued the truck-parts manufacturer for contribution under CERCLA §113. The court first notes that both parties are liable parties as defined by §107, that the site in question is a facility as defined in §101(9), and that there have been releases from both facilities that have caused the incurrence of response costs. The court holds that the truck-parts manufacturer, as a liable party under CERCLA, is responsible for a pro rata share of the response costs the airplane manufacturer incurred in investigating and remediating contamination in the aquifer. The court next holds that the airplane manufacturer complied with both the 1985 and the 1990 national contingency plan (NCP) requirements of accurate accounting and that the truck-parts manufacturer also complied with the appropriate NCP requirements. Based on the quantity and complexity of information gathered by the airplane manufacturer and its consultants, supplemented and explained by the witnesses at trial, the court also holds that the airplane manufacturer complied with the NCP requirements for information gathering, investigation, and presentation. The airplane manufacturer has, therefore, met the four-factor test for maintaining a contribution action.

Turning to the allocation of costs, the court finds that the mass of contaminants each party contributed to the hazardous-substance plume reflects the harm to the environment each party caused. The court holds that most of the "Gore" factors for allocating costs fail to assist in this case. The amount of hazardous waste each party contributed to the plume is extremely difficult to quantify, the contamination each party contributed has the same toxicity, the parties—or their predecessors—were both involved in the use and disposal of the hazardous materials, and both parties exercised the degree of care that was characteristic at the time for hazardous-substance disposal. In addition, the parties have been continuously, actively, and responsibly involved in litigation and remediation of the contamination. The court holds, however, that the remaining Gore factor—the ability of the parties to demonstrate that their contribution to the plume can be distinguished—is a significant factor relevant to this case. Based on the nature of subsurface fractures, the types of chemicals involved, and the overall geology and hydrogeology in the area, the court finds that the airplane manufacturer's contribution to the plume is best approximated at 30 percent and that the truck-parts manufacturer's share is 70 percent.

The court next holds that CERCLA §114's prohibition against double recovery requires that funds the airplane manufacturer receives under a settlement with prior site owners and operators must be factored into allocation of response costs. Because approximately one-third of the response costs the airplane manufacturer has incurred are costs relating to the aquifer, the court holds that one-third of the funds the airplane manufacturer receives under the settlement must be included in allocating the aquifer-related costs. Finally, the court holds that for the reasons discussed in allocating past costs, the airplane manufacturer and the truck-parts manufacturer are responsible, on a 30/70 percent allocation, for future response costs incurred to remediate the aquifer that are necessary and incurred in compliance with the NCP.

Counsel for Plaintiff
Paul T. Fortino, David A. Bledsoe
Perkins & Coie
1211 SW 5th Ave., Ste. 1500, Portland OR 97204
(503) 727-2000

Counsel for Defendant
Garr M. King
Kennedy, King & Zimmer
2600 Pacwest Ctr.
1211 SW 5th Ave., Ste. 2600, Portland OR 97204
(503) 228-6191