ELR Citation: ELR 20499
No(s). 80-489 LO (D. Del. Dec 21, 1989)

The court holds that Delaware, acting in its regulatory capacity without any proprietary or financial interest, is not liable for hazardous waste cleanup costs as an operator or arranger under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act. Delaware participated in the selection, planning, design, and operation of a landfill site that served as a model for implementing the state's solid waste disposal code. The court first holds that Delaware is not an operator under §107(a)(2) because it did not control the facility's finances, employees, or daily business operations, and it did not receive economic benefit other than the payment or receipt of taxes. The court next holds that Delaware did not arrange for hazardous waste disposal or treatment at the site under §107(a)(3). Delaware merely attempted to ensure site safety but had no commercial nexus with or actual control of the disposed wastes. No facts or reasonable inferences indicate that Delaware ever owned or possessed any hazardous wastes disposed of at the site. Finally, the court rejects as unsupported an assertion that Delaware is liable as a transporter under §107(a)(4).

[Prior decisions in this litigation are published at 16 ELR 21007, 21011, 21013, 18 ELR 20188.]

Counsel for Plaintiff
Richard G. Andrews
Department of Justice
820 N. French St., Wilmington DE 19801
(302) 571-3838

William A. Hutchins
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-5244

Counsel for Defendant-Third-Party Plaintiff
B. Wilson Redfearn
Tybout, Redfearn & Pell
Bank of Delaware Bldg., Ste. 1110, 300 Delaware Ave., P.O. Box 2092, Wilmington DE 19801
(302) 658-6901

George J. Weiner
Schmeltzer, Aptaker & Sheppard
2600 Virginia Ave. NW, Ste. 1000, Washington DC 20037-1905
(202) 333-8800

Jeffrey B. Bove
Connolly, Bove, Lodge & Hutz
1220 Market St., P.O. Box 2207, Wilmington DE 19899-2207
(302) 658-9141

Counsel for Third-Party Defendant
Robert R. Thompson, Kevin P. Maloney
Department of Justice
820 N. French St., Wilmington DE 19801
(302) 571-3838