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Velsicol Chem. Corp. v. Reilly Tar & Chem. Corp.

Citation: 15 ELR 20103
No. No. CIV-1-81-389, 21 ERC 2118/(E.D. Tenn., 08/16/1984)

The court holds that plaintiff may seek a declaratory judgment pursuant to § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to establish defendant's liability for the disposal of coal tar sludge in a holding tank located on property sold to plaintiff by defendant. Initially the court holds that plaintiff's claims under CERCLA and Tennessee law are material to its claim for declaratory and injunctive relief. Next, the court holds that plaintiff's claims are not barred by exclusive administrative jurisdiction because the statute provides private parties with the right to recover response costs from responsible third parties. The court rules that plaintiff's claim for response costs constitutes a sufficiently real controversy to support its request for a declaratory judgment.

The court rules that plaintiff lacks standing to seek injunctive relief against defendant, because CERCLA § 106 abatement actions may be brought only by the United States and no other provision in the Act provides a basis for plaintiff's claim.Considering plaintiff's claim for damages, the court rules that investigative costs constitute response costs as defined by CERCLA. A contrary decision can be distinguished and investigative costs are a necessary part of the response. The court rules that plaintiff has alleged a threat of release under CERCLA. Plaintiff's failure to specifically allege a release or threat of a release of a hazardous substance does not defeat its claim for response costs. Its assertion that the coal tar may reasonably be anticipated to pose a danger to the environment is sufficient. Rejecting defendant's argument that the coal tar, contained in a concrete cistern with a wooden cover, cannot enter the environment, the court declines to rule as a matter of law that the existence of the concrete container precludes a finding of "disposal" under CERCLA. Finally, the court rules that plaintiff is a proper party to bring a private cause of action under § 107. The reference to "any other party" in § 107(a)(4)(B) means any person other than the United States or a state. Despite defendant's contention that CERCLA § 107 limits private rights of action to non-liable parties, the court rules that plaintiff's potential liability as the owner of the dumping site does not bar it from seeking recovery of response costs.

Counsel for Plaintiff
Michael W. Boehm, James W. Gentry Jr.
Gentry and Boehm
Suite 600, Dome Building, Chattanooga TN 37402
(615) 756-5020

Counsel for Defendant
Harry F. Burnette
512 First Tennessee Building, Chattanooga TN 37402
(615) 756-4122