ELR Citation: ELR 20168
No(s). R-89-261 (D. Md. Aug 20, 1991)

The court holds that a property owner is liable for 40 percent of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) response costs incurred at the site, and a former lessee that operated a wood treatment facility on the property is liable for 60 percent. The court notes that the lessee did not operate the facility in a reckless or wanton manner, but used containment measures that were in accordance with common practice at that time. The court holds that the property owner and lessee are jointly and severally liable for the indivisible environmental damage. The court notes that holding the two parties jointly and severally liable to each other allows it to treat the case as if it were an action for contribution under CERCLA §113(f) and to consider equitable factors in allocating the damages. The court holds that the lessee must be allocated the lion's share of liability because its operations were the sole cause of the environmental damage. The property owner must also bear some of the costs because it knew and acquiesced in the lessee's wood treatment activities, and required them as a condition of the lease. The court holds that an award of attorney fees is not appropriate where corporate equals share CERCLA liability.

[A previous case in this litigation is published at 22 ELR 20163.]

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