ELR Citation: ELR 20163
No(s). R-89-261 (D. Md. Feb 1, 1991)

The court holds that a former lessee is liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to the property owner for response costs incurred at the site where the lessee operated a wood treatment plant, and the property owner is liable to the lessee. The court first holds that the property is a "facility" under CERCLA and that the lessee is a covered person under CERCLA. The court also holds that a release occurred during the time the lessee operated the facility. The property owner conclusively demonstrated the presence of hazardous substances on the property and that the substances are used in wood treatment. The testimony of several of the lessee's employees denying any releases is insufficient to demonstrate a genuine dispute regarding a material fact. The court holds that the property owner need only show that it has incurred some costs consistent with the national contingency plan (NCP) to obtain a judgment on liability. Proof of the consistency of the remaining costs may wait until trial on the issue of damages. The court also holds that investigative costs are recoverable response costs consistent with the NCP. The court holds that the property owner's state law claims against the lessee are barred by the three-year Maryland statute of limitations. Applying the discovery rule, the court next holds that the property owner knew or should have known of the contamination in 1984 when Maryland published a list of potential hazardous waste sites in the Maryland Register, but did not file suit until 1989. The court holds that the property owner is also liable under CERCLA. The court notes that it cannot decide at this stage whether liability is apportionable or joint and several, or the proper allocation of damages.

[A subsequent decision in this litigation is published at 22 ELR 20168.]

Counsel for Plaintiff
Mark L. Austrian
Collier, Shannon & Scott
3050 K St. NW, Ste. 400, Washington DC 20007
(202) 342-8400

Counsel for Defendant
J. Paul Mullen
Lord & Whip
800 One Ctr. Plaza, 120 W. Fayette St., Baltimore MD 21201
(410) 539-5881