ELR Citation: ELR 20392
No(s). 4:95-CV-2033 CAS (E.D. Mo. May 6, 1996)

The court rules on motions to dismiss claims that a sanitary landfill owner and related corporations brought against hazardous-waste generators that disposed of their waste at the landfill. The court first holds that plaintiffs may sue the generators under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) even though plaintiffs are potentially responsible parties (PRPs). The plain language of §§107 and 113 does not indicate that PRPs are prohibited from bringing claims under §107 or that §113(f) is the exclusive remedy for PRPs. The court next refuses to dismiss plaintiffs' claim for declaratory judgment on future response costs. CERCLA specifically contemplates entry of a declaratory judgment on liability that will be binding in subsequent actions to recover further costs. The court next holds that the generators' entry into a consent order with, and payment of a civil fine to, Illinois does not protect them from potential liability to plaintiffs under CERCLA. The consent order was limited to recovery of civil penalties and did not seek to recover response costs; was entered into under Illinois law and the Resource Conservation and Recovery Act, and did not mention or implicate CERCLA; preserved Illinois' right to bring further actions against one of the generators; and specifically excepted from its scope private-party claims for contribution and/or response costs arising from the facts stipulated in the order. The court next refuses to dismiss plaintiffs' contract-based claims. Purchase orders pertaining to the alleged disposal of the generators' waste products refer to all the plaintiffs by name and specifically state that one of the plaintiffs will be an independent contractor. This language establishes, at a minimum, the existence of an issue of material fact as to whether there was a contract between them. The court further refuses to dismiss plaintiffs' nuisance claim, because plaintiffs adequately allege that the generators interfered with their use and enjoyment of their property. The court dismisses, however, plaintiffs' misrepresentation claim. Plaintiffs' allegations that defendants repeatedly represented that their waste was nonhazardous, when they either knew the waste was hazardous or made the representations in reckless disregard for their truth or falsity, are lacking in specific supporting facts. Further, plaintiffs have not alleged with adequate particularity what representations were actually made, by whom, when, and where. The court next holds that the economic loss doctrine is inapplicable to plaintiffs' tort claims. That doctrine bars recovery on a tort theory in the commercial context wherein harm is to a consumer's commercial expectations. But plaintiffs clearly assert claims for damage above and beyond any mere disappointed commercial expectations or desire to enjoy the benefit of their alleged agreement with the generators. Finally, the court refuses to dismiss a generator that is the parent corporation of another generator defendant. Plaintiffs have alleged that the generator individually committed the various acts and omissions of which they complain.

Counsel for Plaintiffs
R. Henry Branom Jr.
Jenkins & King
10 S. Brentwood, Ste. 200, St. Louis MO 63105
(314) 721-2525

Counsel for Defendants
Richard J. Pautler
Peter, Martin, Jensen, Maichel & Hetlage
720 Olive St., 24th Fl., St. Louis MO 63101
(314) 421-3850