Comprehensive Environmental Response

January 21, 2013

Dry-cleaning machine manufacturer not liable under CERCLA

Source: http://www.lexology.com, January 11, 2013
By: David Erickson and Mark Anstoetter, Shook Hardy & Bacon LLP

A federal court in California has determined that the manufacturer of a dry-cleaning machine is not liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for releases that occurred during the machine’s operation. KFD Enters. Inc. v. City of Eureka, No. 08-CV- 4571 (N.D. Cal. 12/14/12).

Multimatic, the manufacturer of the dry-cleaning machine operated by plaintiff KFD Enterprises, issued an operation manual that provided “Waste water must flow into an open drain.” When KFD operated the machine, it discharged waste water containing perchloroethylene (PCE) into a drain, activity that allegedly caused subsurface contamination. KFD asserted that Multimatic had arranged for disposal of a hazardous substance via its instruction manual and that Multimatic was liable under CERCLA for cleanup costs.

The court found that the manual did not demonstrate the requisite intent to render Multimatic liable as an arranger under CERCLA, i.e., Multimatic did not enter into sale of its equipment “with the specific purpose of disposing of a hazardous substance.” The court rejected an allied argument that Multmatic exercised control over disposal via its manual, finding the manual more akin to recommendations that do not control the actions of the purchaser. While the court dismissed a continuing trespass cause of action against Multimatic, it declined to grant Multimatic summary judgment on common law claims sounding in public and private nuisance, strict liability, negligence, indemnity, and contribution, and seeking declaratory relief.

 …

September 24, 2010

Settlement Awarded for Contaminated Scrap Yards

After three years of environmental litigation, a Trust in Indiana was awarded $4.3 million in cleanup costs for two sites contaminated with lead and polychlorinatedbiphenals (PCBs).  The Trust filed the suit in 2007 under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Indiana Environmental Legal Action (ELA) statute for cleanup costs for the polluted scrap yards.  “The Trust claimed that defendants discarded batteries and transformers containing lead and polychlorinatedbiphenyls (PCBs) at the scrap yards, contaminating both properties.” (Source:  http://envfpn.advisen.com)