ELR Citation: ELR 21487
No(s). 91-685-JE (D. Or. Jul 27, 1993)

The court holds that material issues of fact regarding a reasonable basis for divisibility and apportionment of liability preclude summary judgment as to the joint and several nature of liability in an action in which the current owner of contaminated property and its parent corporation, a former owner, seek response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Oregon law from a successor-in-interest to a prior owner and a prior lessee that treated wood with creosote on the property. The court adopts a magistrate judge's findings and recommendations. The court denies plaintiffs' motion for a declaration that defendants are jointly and severally liable for plaintiffs' response costs, because reasonable bases for divisibility of liability exist, including testimony that contamination in tow areas have two distinct causes. The court grants a defendant summary judgment that the plaintiff-owner and its parent are liable for contamination as owner and former owner under Oregon law and are potentially liable under CERCLA as an owner and operator because the owner acquired the property with knowledge that a release had occurred and its parent had acquired the property without undertaking appropriate inquiry. The court rejects plaintiffs' argument that owners who acquire title by a deed that is not "connected with" the contamination are free from liability. The court holds that an Oregon law that authorizes the Oregon Attorney General to recover cleanup costs does not apply retroactively and does not create a private cause of action. Neither the statutory language nor legislative history suggest a contrary finding. The court holds that plaintiffs may not recover attorney fees under CERCLA or Oregon state cleanup laws. Finally, the court holds that plaintiffs may not recover consequential damages based on an alleged lost sale of the property under CERCLA, and that the issues have not been fully briefed to enable the court to rule on any entitlement to the recovery of consequential damages under Oregon statutory and common law.

Counsel for Plaintiffs
Steven R. Schell, Ronald T. Adams
Black & Helterline
707 SW Washington St., Ste. 1200, Portland OR 97205
(503) 224-5560

John F. Barg, Mariah Baird
Landels, Ripley & Diamond
350 Steuart St., San Francisco CA 94105
(415) 788-5000

Counsel for Defendants
Richard S. Gleason, Scott J. Kaplan
Stoel, Rives, Boley, Jones & Grey
900 SW 5th Ave., Ste. 2300, Portland OR 97204
(503) 224-3380

Daniel H. Skerritt
Ater, Wynne, Hewitt, Dodson & Skerritt
222 SW Columbia St., Ste. 1800, Portland OR 97201
(503) 226-1191

Edward J. McGrath, Colin G. Harris
Holme, Roberts & Owen
1700 Lincoln St., Ste. 4100, Denver CO 80003
(303) 861-7000