ELR Citation: ELR 20009
No(s). HM-92-9 (D. Md. Jul 16, 1993)

The court holds that a dry cleaning trade association and a state sewage commission are liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs incurred by the owner of land contaminated with perchloroethylene (PCE). The trade association discharged the PCE into a pipe leading to the commission's sewer system, which runs under a road along plaintiff's property. The trade association concedes that its site is a "facility," and relying on precedent, the court holds that the commission's sewer pipe is also a "facility." The court next holds that a "release" occurred from the trade association site, because undisputed soil and groundwater tests show that concentrations of the PCE exist slightly downgradient from a lateral sewer pipe running from the site and in the area where a dumpster used at the site formerly stood. A release occurred from the sewer line because it contained many cracks, the sewage commission intended it to leak, and the commission presented no evidence that the PCE did not escape from the sewer. Further, under CERCLA a "release" does not require active participation by a responsible party. The court holds that plaintiff's failure to solicit public comments as required by CERCLA's national contingency plan before conducting its investigation does not preclude cost recovery.

The court next holds that plaintiff need not prove that a release of the PCE from the sewer caused plaintiff to incur response costs. CERCLA only requires proof that threatened releases caused incurrence of response costs, and this case involves actual, not threatened, releases. Plaintiff has proven that the hazardous substance from the facility is identical to the hazardous substance contaminating the groundwater under its land. As a potentially responsible person, the trade association bears the burden of disproving the element of causation, through one of the available defenses listed in CERCLA §107(b).

The court holds that the sewage commission is not entitled to rely on CERCLA §107(b)(3)'s innocent landowner defense, because the evidence does not indicate that the trade association site caused all the groundwater contamination, the sewage commission failed to exercise due care with respect to the hazardous substances, and the commission failed to take precautions against foreseeable actions or omissions of industrial customers. The court holds that the doctrine of unclean hands does not shield the sewage commission from liability for contribution to the trade association under CERCLA, because in the context of CERCLA, equitable doctrines are not defenses but merely factors for the court to consider in contribution actions. The court holds that the trade association violated the Resource Conservation and Recovery Act by failing to comply with regulations of an approved state hazardous waste program applicable to hazardous waste treatment facilities. The court holds that the state regulatory exemption for domestic sewage does not apply to the PCE that the trade association poured downed the drain at its site, because the association is an industrial entity. The court holds that the trade association's treatment of the PCE samples does not qualify for the regulatory exception applicable to totally enclosed treatment facilities, because the equipment used to separate the PCE was not directly connected to the industrial process that generated the PCE it treated. The court refuses to enjoin the trade association to clean up its land, because plaintiff has not attempted to show that the association contributed to the handling, storage, treatment, transportation, or disposal of the PCE, thus presenting an imminent and substantial endangerment to health or the environment.

The court denies the sewage commission's motion for summary judgment on plaintiff's state-law negligence claim, because the record does not establish beyond question that the commission satisfied its duty to exercise reasonable care in the construction and maintenance of the sewer line. Further, genuine issues of material fact exist concerning the cause of the contamination. The court also denies the commission's motion for summary judgment on the trade association's claim for contribution and indemnification for the commission's alleged trespass on plaintiff's property, because genuine issues of material fact exist. The court denies the commission's motion for summary judgment on plaintiff's private nuisance claim, because plaintiff only seeks to hold the commission liable for the discharge of the PCE from the sewer line, over which the commission had control. The court grants summary judgment for the commission on the trade association's claim for strict liability for abnormally dangerous activities, because maintaining a sewer system is a highly appropriate use of the land beneath the road along plaintiff's property and does not involve the collection and storage of large quantities of material in a certain place. The court also grants the commission's motion for summary judgment on the association's claim for contribution and indemnification under state law, because no negligence on the part of the commission, either active or passive, could be said to have contributed to releases from the trade association site.

[A prior decision in this litigation is published at 22 ELR 21350.]

Counsel for Plaintiff
Jeffrey M. Johnson
Dickstein, Shapiro & Morin
2101 L St. NW, Washington DC 20037
(202) 785-9700

Counsel for Defendant
Timothy A. Vanderver
Patton, Boggs & Blow
2550 M St. NW, Washington DC 20037
(202) 457-6000