ELR Citation: ELR 20093
No(s). 07-0703 (E.D. Cal. Mar 12, 2010)

A district court granted dry cleaning machine manufacturers’ motion to dismiss claims against them under CERCLA, RCRA, and state and common law to recover costs to remediate contamination from perchloroethylene (PCE), a volatile organic compound used in dry cleaning. First, the manufacturers cannot be held liable as an arranger under CERCLA because the complaint failed to allege that the manufacturers owned or possessed PCE or PCE-laced water and failed to substantiate that the manufacturers knew how a machine operator would dispose of the “waste” sufficient to rise to the level of intentional disposal of a hazardous substance. Intentional disposal is also negated by the absence of allegations that the manufacturers installed the machine, connected it to floor drains, directed waste disposal from the machines, or inspected the machines and their waste disposal. Furthermore, the complaint does not negate manufacturers’ useful product defense: the transaction at issue is the sale of the machine, an event that neither produces nor involves hazardous substances directly. Even looking beyond the sale, the complaint offers nothing to suggest that disposal of a hazardous substance was arranged through the transaction. Second, the manufacturers cannot be held liable as generators under RCRA because the complaint fails to allege that the manufacturers created the waste or had any active involvement in handling, storing, or disposing of PCE. Third, the manufacturers cannot be held liable for nuisance because the complaint fails to allege affirmative steps toward the improper discharge of PCE. Fourth, the manufacturers cannot be held liable for trespass because their conduct fails to substantiate invasion in exclusive possession of land. Finally, the claims for comparative equitable indemnity, response costs, declaratory relief, and attorney fees are also dismissed because they derive from the alleged liability under CERLCA and RCRA.