ELR Citation: ELR 20852
No(s). 94-311-P-C (D. Me. Dec 21, 1995)

The court holds that a scrap metal removal and processing company may bring suit under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against a weapons manufacturer that sold it allegedly contaminated scrap metal. The court first holds that the processor is an "innocent party" for purposes of determining whether it must sue the manufacturer for cost recovery under §107 or for contribution under §113. The processor has not admitted, nor has any other party produced any evidence to show, that the processor actually bears joint and several CERCLA liability, the predicate of a CERCLA contribution action. Although the processor submitted to a consent order with the Maine Department of Environmental Protection, it did so to remedy certain violations of state law, not of CERCLA. The court next holds that the processor has produced enough evidence, including invoices, testimony, and soil tests, for a reasonable jury to find that the manufacturer arranged for disposal or treatment of hazardous substances within the meaning of §107(a)(3). The court notes that neither party disputes that hazardous substances were released at the processor's facility. Further, the manufacturer has acknowledged that the processor has at least incurred the response cost of an expert environmental study, and the cost of that investigation is recoverable regardless of its consistency with the national contingency plan. The court thus holds that the processor has generated a genuine issue of material fact as to all four necessary elements of its §107(a) cost recovery claim, and denies the manufacturer's motion for summary judgment.

The court next holds that the exercise of supplemental jurisdiction over the processor's state-law claims is appropriate. The court denies the manufacturer's motion for summary judgment on the processor's claim for strict liability. The processor submitted evidence that would allow a reasonable jury to find that the manufacturer has disposed of hazardous waste that has caused injury to the processor. The court next grants the manufacturer summary judgment on the processor's private nuisance claim. A claim for private nuisance lies where a defendant's use of its own land causes injury to adjoining or neighboring land; however, in this case the defendant's alleged generation of hazardous substances on its own land did not, by itself, injure the processor's neighboring land. The processor sustained injury only after purchasing the scrap and transporting it back to its own property. The court grants the manufacturer summary judgment on the processor's claim of wrongful involvement in litigation, because Maine law does not recognize that tort. The court next holds that the processor's indemnification claim may go to trial. The processor submitted copies of signed invoices that contain warranty and indemnification clauses and submitted other evidence tending to show that the warranty has been breached. The court finally grants the processor's request to dismiss, without prejudice, its claim for tortious interference with contractual and business relationships.

Counsel for Plaintiff
David J. Perkins
Perkins & Perkins
30 Milk St., Portland ME 04112
(207) 871-7159

Counsel for Defendant
Mark L. Haley
Conley, Haley & O'Neil
30 Front St., Bath ME 04530
(207) 443-5576