ELR Citation: ELR 21327
No(s). 95-722 (CRR) (D.D.C. Mar 29, 1996)

The court holds that the sole general partner of a partnership owning contaminated property in the District of Columbia may not recover past site-investigation costs from the United States or the District of Columbia under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The United States and the District allegedly owned or operated the site and adjacent properties. The court first notes that both the soil and groundwater at the site contain "hazardous substances," that the presence and potential or actual migration of such substances constitutes a "release" or threatened "release," and that the site is a "facility." Furthermore, the United States concedes that it is liable under CERCLA §107(a) and therefore subject to a declaratory judgment for future response costs incurred by the general partner pursuant to §113(g)(2) with regard to polychlorinated biphenyl (PCB) contamination at the site.

The court next holds that the general partner is not entitled to recover his past investigative costs from defendants because he failed to demonstrate that these costs were necessary and consistent with the national contingency plan. His investigatory costs were not incurred in response to a perceived threat to human health or the environment. The court further holds that the general partner is liable under CERCLA as a current owner of the site. The innocent-landowner and third-party defenses are not available to him because he could not establish that at the time of the property's purchase, he "had no reason to know" of the presence of hazardous substances at the site, and following the discovery of the site's contamination, he failed to exercise due care or take appropriate precautionary measures. The court holds that defendants also are not entitled to the third-party defense because they failed to establish that the contamination at the site was caused solely by the actions of a third party.

The court next holds that summary judgment is unwarranted with respect to the general partner's claims for future response costs. The general partner failed to demonstrate that polynuclear aromatic hydrocarbons, total petroleum hydrocarbons, and kerosene at the site fall outside CERCLA's petroleum exclusion. Therefore, the only substances identified at the site for which CERCLA liability may attach are lead, mercury, and PCBs, and the source and timing of lead and mercury contamination at the site is disputed. Finally, the court grants summary judgment to defendants on the general partner's Resource Conservation and Recovery Act claim. The uncertainty surrounding the origin of the contamination at the site precludes a finding that defendants have contributed to the handling, storage, treatment, transportation, or disposal of hazardous wastes at the site. Even assuming that defendants contributed to these actions, however, the general partner cannot establish that the site may present an imminent and substantial endangerment to human health or the environment.

[Another opinion in this litigation is published at 26 ELR 21336.]

Counsel for Plaintiff
Donald B. Mitchell Jr.
Arent, Fox, Kintner, Plotkin & Kahn
1050 Connecticut Ave. NW, Washington DC 20036
(202) 514-2000

Counsel for Defendant
Lois J. Schiffer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000