ELR Citation: ELR 20992
No(s). 84-2280 (E.D. Pa. Sep 4, 1985)

Ruling on motions for partial summary judgment on liability, the court holds that buyers of a hazardous waste site who did not allow further waste to be disposed of and who took steps to avoid further releases could be insulated from Comprehensive Environmental Response, Compensation, and Liability Act §107 liability under the §107(b)(3) affirmative defense. The court first holds that the buyers are potentially liable parties under §107. They are the owners of the property. The United States has incurred response costs there. There was a release or a threatened release of hazardous substances, and the site qualifies as a facility. The court rejects defendants' argument that it should reserve judgment on liability until it determines whether damages may be apportioned. The court will address apportionment when it tackles the larger issue of damages. Finally, the court considers whether the affirmative defense of §107(b)(3) could apply. The court finds no evidence suggesting that defendants added to the waste on the site or had any employment, agency, or contractual connection with the site's past operators. The court notes that defendants contend that they exercised due care under the circumstances to avoid releases by consolidating drums containing the waste in a secure warehouse. Although defendants' evidence is not uncontroverted and so does not meet the burden of proving the defense on summary judgment, it does raise genuine issues of fact that need to be resolved at trial. Despite uncontroverted evidence that releases occurred or threatened to occur while defendants owned the property, the court holds that it does not follow that defendants' acts or omissions caused the releases, noting that the §107(b)(3) affirmative defense is the only part of §107 that invokes principles of causation.

Counsel for Plaintiffs
Steven V. Englemyer, Ass't U.S. Attorney
3310 U.S. Courthouse, 601 Market St., Philadelphia PA 19106
(215) 597-2556

Counsel for Defendants
Robert Faron
Lane & Mittendorf
1750 K St. NW, Washington DC 20006
(202) 785-4949

Thomas R. Kline
Brown, Roady, Bonvillian & Gold
Suite 300, 1300 19th St. NW, Washington DC 20036
(202) 331-9420