ELR Citation: ELR 20075
No(s). 2:93CV242 (E.D. Va. Jun 21, 1993)

The court holds that petroleum hydrocarbons found at a hazardous waste site may not fall under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §104(14)'s petroleum exclusion, and the act of moving contaminated soil around on a hazardous waste site during construction of an apartment building may constitute "disposal." The site was contaminated with petroleum hydrocarbons released by a gas company that owned the site before it was purchased by the defendants. The court first holds that the contaminants at issue do not as a matter of law fall within CERCLA §104(14)'s petroleum exclusion because the record does not contain evidence as to whether the hydrocarbons are found in excess of the amounts that would have occurred in petroleum during the oil refining process, and because the pleadings assert that the contaminants are not limited to hydrocarbons. The court next holds that although defendant prior owners did not own the site when the releases occurred, their act of moving contaminated soil around on the site during construction of an apartment building might constitute "disposal" of a hazardous substance under CERCLA §101(29). Finally, the court holds that the dower rights of the defendant owners' wives do not make the wives "owners" under CERCLA, and that the prior owners' partnership agreement regarding the site is strong evidence that the wives lacked any authority to control activities at the site, but the court grants plaintiffs leave to file additional materials showing the prior owners' wives to be owners or operators.

Counsel for Plaintiffs
Ralph W. Buxton, Susan T. Hansen
Cooper, Spong & Davis
Central Fidelity Bank Bldg.
High & Crawford Sts., P.O. Box 1475, Portsmith VA 23705
(804) 397-3481

James E. Anklam, John W. Edwards
Jones, Day, Reavis & Pogue
Metropolitan Sq.
1450 G St. NW, Washington DC 20005
(202) 879-3939

Counsel for Defendants
Bradfute W. Davenport Jr., James E. Ryan Jr.
Mays & Valentine
NationsBank Ctr.
1111 E. Main St., P.O. Box 1122, Richmond VA 23208
(804) 697-1200