ELR Citation: ELR 21165
No(s). 93-1347-A (E.D. Va. Mar 29, 1994)

The court grants in part and denies in part summary judgment on a mortgage holder's action to recover the costs of environmental studies of contaminated property and for declaratory judgment on past and present owners' and operators' liability for future remediation costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that the site is a "facility" under CERCLA §101(9) because hazardous substances are present throughout the soil, groundwater, and structures on the property, and that the substances have been "released" for purposes of §101(22) and CERCLA §107. The court next holds that the costs of the environmental studies are "response costs," because they fit within CERCLA's definition of "removal" as studies undertaken to monitor, assess, and evaluate the release of hazardous substances. The court defers ruling, however, on the question of whether attorney fees associated with the studies constitute "response costs," pending the U.S. Supreme Court's decision in Key Tronic Corp. v. United States, 23 ELR 20558 (9th Cir. 1993).

The court next holds that the tenant on the property is liable as an operator of the site because it had authority to control the facility, including parts of the facility that it did not lease. Because hazardous materials discharged into the environment during its tenancy, it is immaterial whether the tenant was responsible for the contamination. Further, the tenant engaged in activities that contributed to the release of hazardous materials. The tenant is also liable as a successor corporation to a company that previously owned and operated the site. The tenant bought certain assets from the prior owner under a purchase agreement that excluded liabilities that arose before a certain date, implying that the tenant assumed liabilities arising after that date. Further, although the prior owner retained ownership of the property, the tenant assumed many of its personnel and continued its business. The court next holds that the mortgage holder's response costs were consistent with the national contingency plan, but that it is not entitled to summary judgment on damages because triable issues of fact exist regarding whether the costs were necessary and reasonable under the circumstances. The court next holds that joint and several liability is appropriate because there is no way to determine and assign the liability for each harm that the various owners and operators caused. Finally, the court grants summary judgment against all the defendants for future remediation costs.

Counsel for Plaintiff
Barbara S. Wahl
Arent, Fox, Kintner, Plotkin & Kahn
Washington Sq.
1050 Connecticut Ave. NW, Washington DC 20036
(202) 857-6000

Counsel for Defendants
Charles M. English Jr.
Ober, Kaler, Grimes & Shriver
1401 H St. NW, Ste. 500, Washington DC 20005
(202) 408-8400