ELR Citation: ELR 20147
No(s). 94-277L, 95-0154L (D. Utah Mar 6, 1996)

The court holds that a defendant need not know where its hazardous substances are disposed of in order for liability to attach under §107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act. The court first grants summary judgment against a defendant that concedes that it intended to get rid of its used oil and that relies solely on a lack of knowledge defense. The plain language of §107(a)(3) does not require knowledge of the disposal facility's location. By contrast, §107(a)(4) imposes liability on "any person who accepts or accepted any hazardous substances for transport to . . . sites selected by such person." The court next denies summary judgment against a defendant that argues that it sold a useful product to the disposal site. A question of fact remains whether the defendant sold a new useful product and did not sell its oil merely to get rid of it. Plaintiff has the burden of proving that the defendant intended to get rid of its hazardous substances, and the defendant's admissions do not suffice to carry that burden. The court holds that another defendant, by failing to respond timely to plaintiff's request for admissions, has admitted that he was an arranger and, thus, a responsible person. Based on the law of the case doctrine, the court next holds that it is bound by the ruling of a prior judge in the litigation that used motor oil sent to the site is a hazardous substance. Defendants have not submitted any support for their contention that the prior judge employed improper procedure. The court also denies summary judgment against defendants that alleged that claims against them were discharged in bankruptcy. Plaintiff failed to establish the absence of material questions of fact regarding such discharge. The court denies summary judgment against a defendant that submitted a sworn affidavit that it had ceased operations and formally dissolved, because the affidavit raises a fact question whether the defendant is a person within the meaning of §101(21). The court grants summary judgment, however, against a defendant that submitted an unsworn letter from its attorney that it is a defunct corporation, because this letter is not admissible. Finally, the court holds that plaintiff properly cited §107(a) in its amended complaints, even though the prior judge had ruled that it could not bring a §107 claim. The continued inclusion of §107 claims strikes the court as an effort to preserve the record, and it is proper to cite §107(a) as a vehicle for the §113(f) relief that plaintiff seeks.

[A prior decision in this litigation is published at 25 ELR 21331.]

Counsel for Plaintiff
Robert M. Pomeroy Jr., Steven W. Black
Holland & Hart
555 17th St., Ste. 2900, Denver CO 80201
(303) 295-8000

Counsel for Defendants
David L. Dain
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

LUNGSTRUM, District Judge