ELR Citation: ELR 20633
No(s). 3:93-CV-411-P (W.D.N.C. Oct 6, 1995)

The court holds that a plaintiff in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution action can satisfy its burden of showing that a facility contains hazardous substances generated by a given defendant with circumstantial evidence that such substances were dumped at the site and were not removed before the release that caused the response costs. The court determines that genuine issues of material fact preclude summary judgment in this CERCLA contribution action. The court first finds that reasonable persons could find that a waste disposal company hauled "stinkwater," a byproduct of a sulfur dye production, from the defendant's plant to the site in question, because testimony regarding the obnoxiousness of the stinkwater's odor renders reasonable the inference that the disposal company in fact hauled the stinkwater. Differences in testimony between the hauler and the defendant as to the color of the stinkwater are not dispositive. The court next finds that the plaintiff, a principal generator of wastes at the site, produced evidence from which a reasonable person could find that the defendant's stinkwater contained hazardous substances. There is no probative evidence that the stinkwater the defendant produced and that the disposal company hauled contained heavy metals, however, the stinkwater did contain hydrogen sulfide that may not have had an opportunity to biodegrade before disposal. The court notes that it cannot presently choose between opinions regarding the presence of methyl mercaptan in the stinkwater. Addressing whether the plaintiff has demonstrated that the defendant's waste is at the site, the court finds that although neither hydrogen sulfide nor methyl mercaptan have been detected at the site, the plaintiff has shown through circumstantial evidence that the hazardous substances were generated by the defendant, were dumped at the site, and were not removed before the release that caused the response costs. The plaintiff has produced significantly probative evidence that the site is a facility containing hazardous substances generated by the defendant. The defendant's arguments that any hazardous substances in its waste were released at the site long ago, have long since biodegraded, and have not caused the contamination that required the remediation, do not address liability, but rather go to damages. Finally, the court states that it believes that the determination of whether joint and several liability is appropriate in this case should be made in the liability portion of these proceedings. Allowing a defendant to show that a harm that generated response costs is divisible may allow a defendant to show that none of its hazardous substances caused response costs, and such a result cuts against the notion that CERCLA imposes strict liability and requires no showing that hazardous substances generated by a specific defendant caused response costs.

Counsel for Plaintiff
Joseph C. Kearfott
Hunton & Williams
Riverfront Plaza
951 E. Byrd St., Richmond VA 23219
(804) 788-8200

Counsel for Defendants
Benne C. Hutson
Smith, Helms, Mulliss & Moore
227 N. Tyron St., Charlotte NC 28231
(704) 343-2000