ELR Citation: ELR 21494
No(s). 92-1344-A (E.D. Va. Aug 4, 1993)

The court holds that the two principal shareholders and officers of a land development and landfill operating company are liable as "operators" under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs incurred by the city of North Miami, Florida, in remediating contamination at the landfill, but holds that the company's lawyer and an independent engineering contractor that provided advice on landfill operation are not liable. The court first holds that the landfill site is a facility, there has been a release or threatened release of hazardous substance from the site, and the release caused the city to incur response costs. Next, applying the "authority to control" standard to the question of the defendants' liability as operators, the court holds that one of the officers and shareholders of the company is liable as an operator. The individual exercised actual control over the landfill operations and substantial influence over management decisions concerning all aspects of the landfill project. The court also holds that another owner and officer is liable as an operator, because in his role as treasurer he had authority to control the landfill's operations. The court holds that a lawyer with a financial stake in the success of the landfill project cannot be held liable as an operator because he did not possess the requisite authority to control the landfill, and he did not exercise actual control over the landfill operations. Although his legal services facilitated the development of the project, they cannot be equated with management control of the operations. The court holds that the independent contractor that was hired to provide technical and engineering services in connection with the operation of the landfill is not liable as an operator because it did not exercise control over the wastes or the landfill site and did not possess the authority to control, supervise, or direct the actual day-to-day operations of the landfill. The court notes that imposing operator liability on the lawyer and the independent contractor would expand CERCLA's reach beyond its reasonable limits. The court holds that a demolition company that exercised actual physical control over the wastes is liable as an operator. The court holds that neither the lawyer nor the independent contractor are subject to "arranger" liability because they did not have any operational control over the landfill and as such could not direct movement or disposal of the wastes deposited at the landfill. Finally, the court holds that the city's claim under Florida State contribution law is meritless. There are no facts in the record, and none have been alleged, that the city is subject to tort liability in connection with the project for which it may seek contribution.

[A prior decision in this action is published at 23 ELR 21268.]

Counsel for Plaintiff
Robert S. Hall Jr.
1215 17th St. NW, Ste. 213, Washington DC 20036
(202) 659-0520

Counsel for Defendants
Michael J. Weiser
106 N. St. Asaph St., Alexandria VA 22314
(703) 684-8864

Ellis, J.