ELR Citation: ELR 20875
No(s). 90-0718 (E.D. Pa. Dec 16, 1991)

The court holds that the current owner of a site, which is contaminated with perchloroethylene (PCE) and petroleum, and a tenant that operates a dry cleaning facility are each liable for 50 percent of the future Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) response costs at the site. Plaintiff purchased the site from the previous owner fully aware of the existence of both petroleum hydrocarbon and PCE contamination on the property, and took the property subject to the defendant dry cleaning business' lease. The evidence shows that the defendants' dry cleaning activities caused the PCE contamination. The evidence also reveals that any effort to remove the petroleum contamination from the property will also remove the PCE contamination and vice versa.

The court first holds that the response costs that the plaintiff has incurred at the site are necessary and consistent with the CERCLA national contingency plan (NCP). That plaintiff's cleanup efforts are ongoing and not complete as required by the NCP does not mean that the portion of the cleanup that was performed was not necessary or consistent with the NCP. Moreover, that the government has not brouhgt a cost recovery action against the plaintiff does not preclude plaintiff from bringing this CERCLA contribution action against the defendants. The court holds that even though defendants have caused the PCE contamination, the defendants should be required to pay only 50 percent of all future response costs, because the petroleum contamination was caused by some party other than defendants and plaintiff purchased the property knowing of the petroleum contamination. The court next holds that although plaintiff, or some other party, must incur response costs under Pennsylvania's Clean Streams Law for the remediation of the petroleum contamination, and although both forms of contamination will be remediated by the same cleanup efforts, the equities compel an equal distribution of responsibility for future costs.

The court holds that because past costs for soil testing related to PCE contamination are capable of division, plaintiff is entitled to recover from defendants $7,669 spent on soil testing for PCE. However, unlike the costs expended by plaintiff for soil testing, the evidence shows that groundwater testing costs are not divisible between contaminants; thus, the $10,591 spent on groundwater testing must be equally divided between the parties. The court next holds that plaintiff's claim for forfeiture of defendants' lease is not warranted under the facts, because money damages are sufficient to cover the response costs that defendants are responsible for and defendants did not engage in intentional misconduct. Moreover, the court denies plaintiff's request to enjoin defendants from operating a dry cleaning business on the site because no evidence was presented to show that continued operation would hamper remedial efforts or further threaten environmental conditions. Finally, the court denies plaintiff's claims in negligence, strict liability, nuisance, and for attorney fees.

Counsel for Plaintiff
Mark C. Schultz
Sherr, Joffe & Zuckerman
200 Four Falls Corporate Ctr., P.O. Box 800, West
Conshohocken PA 19428
(215) 941-5400

Counsel for Defendant
Barry M. Klayman
Wolf, Block, Schorr & Solis-Cohen
15th & Chestnut Sts., 12th Fl., Philadelphia PA 19102
(215) 977-2000