ELR Citation: ELR 20619
No(s). 86-1571-Civ (S.D. Fla. Apr 9, 1990)

The court holds that manufacturers of electrical transformers containing polychlorinated biphenyls (PCBs) are not required to provide restitution to or indemnify purchasers of the transformers for the costs of cleaning up property contaminated by the PCBs. A Florida utility purchased the transformers from the manufacturers and, at the end of their useful life, sold them to a scrap metal recycling company that stripped them to recover various metals. During the stripping process, PCBs in the transformers contaminated the recycling company's property. The Environmental Protection Agency and a state agency brought actions against the utility and the recycling company to recover costs incurred in cleaning up the contaminated property. The court first holds that the manufacturers are not liable for restitution because payment of those costs by the plaintiffs did not benefit the manufacturers. The manufacturers did not contaminate the site, since the transformers posed no threat until they were stripped by the recycling company. The manufacturers thus had no duty to clean up the contaminated site. The court next holds that the manufacturers are not liable for indemnification because the plaintiffs were at fault for contaminating the site. The recycling company continued to release oil from transformers into the ground even after it had been convicted by a county agency for such actions, and the utility continued to sell transformers to the recycling company even after it had received a letter from one of the manufacturers that PCBs might be present in the transformers. The court next holds that plaintiffs' claims for reimbursement of damages incurred in actions by former employees of the recycling company must be brought in state court. Finally, the court dismisses the utility's claims that defendants committed discovery abuses. The court holds that any abuse committed by the defendants was no greater than that committed by the utility itself and that any harm flowing from the defendants' conduct did not impair the utility's defense to defendants' summary judgment motions.

[Previous decisions in this litigation are published at 18 ELR 20998 and 20 ELR 20523.]

Counsel for Plaintiffs
Norman A. Coll
Coll, Davidson, Carter, Smith, Salter & Barkett
3200 Miami Center, 201 S. Biscayne Blvd., Miami FL 33131-2312
(305) 373-5200

R. Hugh Lumpkin
Keith, Mack, Lewis, Allison & Cohen
Flagler Federal Bldg., 111 Northeast First St., Ste. 500, Miami FL 33132-2596
(305) 358-7605

Counsel for Defendant
David F. McIntosh
Corlett, Killian, Ober, Hardeman, McIntosh & Levi
116 W. Flagler St., Miami FL 33130
(305) 377-8931