ELR Citation: ELR 20230
No(s). 90-6183-JO (D. Or. Dec 16, 1991)

The court holds that a present owner of land on which tanks containing asbestos and a small quantity of hazardous materials were disposed of is entitled to recover from the previous owner under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107. The court first holds that the United States, the original owner, is not liable for contribution to the previous owner under CERCLA §113(f), because its use of asbestos in the construction of a building at the site was productive, and thus, does not constitute disposal of hazardous substances. The court next holds that the CERCLA statute of limitations commencement date, and not the state statute of limitations, applies and thus, the present owner may still bring a claim against the previous owner. The applicable commencement date is when the plaintiff is first aware that damages it sustained were caused by the hazardous substance. The court holds that the present owner's claim is contingent upon the exact date of the present owner's knowledge; a question for the fact finder. The court next holds the previous owner liable for the present owner's cleanup costs. The court finds that asbestos was affirmatively discarded as waste by the previous owner, and that the tanks are a "facility," not a consumer product because they are no longer commercially useful. Moreover, the previous owner disposed of a hazardous substance. The court finally holds that the issue of the present owner's noncompliance with the national contingency plan is not a potential basis for finding liability, but goes only to the issue of damages. The court declines to enter summary judgment against the present owner's negligence and nuisance claims, and the previous owner's claim for contribution from the present owner.

Counsel for Plaintiff
Leslie Swanson
808 S.W. 3d Ave., Ste. 400, Portland OR 97204
(503) 228-1838

Counsel for Defendant
Daniel Skerritt
222 S.W. Columbia St., Ste. 1800, Portland OR 97201
(503) 226-1191

Jones, J.