ELR Citation: ELR 21488
No(s). 92-CV-506 (E.D. Va. Dec 24, 1992)

The court holds that companies that sold spent lead-acid batteries to a lead reclamation facility for recycling and the current site owners are jointly and severally liable under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for their share of the response costs incurred by a potentially responsible party (PRP) that has undertaken cleanup of the site. The court first holds that the companies that sent batteries to be recycled at the site (generator/recycler defendants) are "arrangers for disposal or treatment" within the meaning of CERCLA §107(a)(3). The court holds that the generator/recycler defendants' sale of the batteries does not fall within the "useful product" defense to CERCLA liability, because the only remaining "use" of the batteries was that lead, a hazardous substance, could be reclaimed from them. The batteries had no use as batteries per se. Thus, their sale can only realistically be characterized as an attempt to "get rid of them." The court next holds that it will address any challenges to the necessity of the response costs and their consistency with the National Contingency Plan during the contribution phase when it apportions liability among parties deemed responsible.

The court next holds that one PRP is entitled to bring its cost recovery claim under §107(a), and need not assert the claim as one solely for contribution under §113(f). Section 107(a)(1)-(4)(B) specifically provides that covered persons shall be liable to, among others, any other person who incurs response costs. Nothing in the Act indicates that only "innocent" persons fall within the definition of "any other person." The court holds that joint and several liability will be imposed on the defendants only for those response costs that are apportioned to the defendants as a group, exclusive of the costs attributable to the plaintiff PRP. Applying the Restatement (Second) of Torts §433A test, the court holds that the harm in this case is indivisible and imposition of joint and several liability is appropriate because there is no reasonable basis for determining each defendant's contribution to the environmental harm at the site.

Turning to the liability of the current site owners, the court holds that the partnership that bought the property is jointly and severally liable for defendants' share of the response costs. Because the harm to the site is indivisible, the partnership's assertion of CERCLA §101(35)(A)'s innocent landowner defense for two parcels at the site and its acceptance of liability for the remaining parcel are without meaning. The court then holds that brothers who acquired portions of the property from the partnership are not innocent landowners, because they knew there was contamination at the site. Also, the brothers' wives are not innocent landowners, because they failed to make an appropriate inquiry into the previous ownership and uses of the property at the time of acquisition. The record reveals that a question to their husbands, an inquiry of the state, or a cursory investigation of the site would have revealed the existence of, or potential for, contamination.

[Other decisions in this litigation are published at 23 ELR 20648 and 20649, and 24 ELR 20344.]

Counsel for Plaintiff
Richard K. Bennett
McSweeney, Burtch & Crump
11 S. 12th St., Richmond VA 23212
(804) 783-6800

Counsel for Defendants
Madelaine Berg
Stroock, Stroock & Lavan
7 Hanover Sq., New York NY 10004
(212) 806-5400