ELR Citation: ELR 20172
No(s). C-88-4813-JPV (N.D. Cal. Aug 28, 1989)

The court holds that purchasers of a hazardous waste site are not liable to the seller for response costs or contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because liability attaches only to the seller who owned and operated the site when the contaminant was introduced. The court first holds that "disposal" under CERCLA does not mean the general movement and migration of a hazardous substance on the property at time of ownership. The seller's interpretation of "leaking" as the general migration of chemicals and, as such, a disposal under CERCLA §107(a)(2) renders superfluous not only the definitional phrase "into or on any land or water" incorporated by reference in CERCLA §101(29), but also conflicts with the general structure of §107(a). To define disposal as the seller wishes would effectively make all property owners potentially liable under §107(a)(2) from the time a site became polluted even if these prior owners did not introduce the chemicals onto the site. The court thus dismisses the seller's cause of action under CERCLA §107(a)(2) with prejudice, observing in a footnote that disposals can occur when a later party who did not introduce the hazardous substances into the environment moves, disperses, or releases those substances during landfill excavations and fillings.

The court next holds that the seller is not entitled to contribution from the purchaser under CERCLA §113(f)(1). The federal statutory right of contribution that the seller seeks to exercise should give way to the negotiated rights of the parties subject to contractual interpretation in the pending state court case. The parties' purchase agreement contemplated the cleanup costs at the site and made this a matter of contract in the sale. The dismissal of the federal claim in the face of the competing state court action is consistent with principles of federalism and comports with wise judicial economy.

Counsel for Plaintiff
Raymond C. Marshall, Kevin T. Haroff
McCutcheon, Doyle, Brown & Enersen
Three Embarcadero Ctr., San Francisco CA 94111
(415) 393-2000

Counsel for Defendants
Daniel Rapaport
Nichols, Doi, Rapaport & Chan
Atkinson-Nichols Landmark Bldg., 1032 Broadway, San Francisco CA 94133
(415) 775-8200

Grant A. Barbour
670 W. Napa St., Sonoma CA 95476
(707) 938-1193

Barry D. Parkinson
P.O. Box 2179, Petaluma CA 94953
(707) 762-9694