ELR Citation: ELR 20773
No(s). CV 89-7368-WMB (GHKx) (C.D. Cal. Sep 24, 1991)

The court holds that a municipality that contracted for the disposal of residential waste at the Operating Industries site in Monterey Park. California, may have incurred arranger liability under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and factual issues remain about whether the municipality's exercise of control over the disposal of residential refuse at the site constitutes ownership or possession. Sixty four industrial companies that entered into a consent decree requiring them to perform remedial actions at the Operating Industries site seek reimbursement against 29 nonsettling municipal defendants. The court first finds that a release of a hazardous substance occurred at the site and that the companies have incurred the necessary costs of response consistent with the CERCLA national contingency plan. The court next holds that the municipality's contract for the transportation and disposal of its residential waste constituted an arrangement for disposal within the meaning of CERCLA §107(a)(3). The court holds that material issues of fact exist as to whether the residential waste deposited at the site contained hazardous substances and whether the municipality arranged the disposal of hazardous substances at the site. The court further holds that the companies may not be relieved from their burden of proving that the municipality arranged the disposal of wastes that it owned or possessed, since case law demonstrates that ownership or possession of hazardous substances is an element of CERCLA arranger liability. However, the court notes that the requirement may be satisfied by a showing of constructive, rather than actual, ownership or possession. The court holds that the municipality's control over the contractor's disposal of the waste is an open issue of fact. Finally, the court holds that the companies' amended complaint for contribution from six county disposal districts is not time barred.

[A previous decision in this case is published at 21 ELR 20826.]

Counsel for Plaintiffs
Pierce O'Donnell, Elizabeth M. Weaver, Gregory S. Dovel, Scott D. Pinsky
Kaye, Scholer, Fierman, Hays & Handler
1999 Ave. of the Stars, Ste. 1600, Los Angeles CA 90067
(310) 788-1000

Counsel for Defendants
Gerald A. Costello
California Department of Transportation, Legal Division
1605 W. Olympic, Ste. 700, Los Angeles CA 90015
(213) 736-3800

David J. Prager
Fisher & Prager
1990 Westwood Blvd., 3rd Fl., Los Angeles CA 90025
(213) 470-7974

Mitchell E. Abbott, Thomas M. Jimbo, David P. Waite
Richards, Watson & Gershon
333 S. Hope St., 38th Fl., Los Angeles CA 90071
(213) 626-8484