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Gould Inc. v. A&M Battery & Tire Serv.

Citation: 28 ELR 20277
No. 3:CV-91-1714, 987 F. Supp. 353/(M.D. Pa., 09/04/1997)

The court holds in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 113 contribution action that plaintiff, the successor-owner/operator of a battery breaking facility, is liable for 75 percent of the cleanup costs and that defendant-battery suppliers are liable for 25 percent of the costs. Plaintiff acquired the battery breaking facility in 1980. The facility operated in the Borough of Throop, Lackawanna County, Pennsylvania, from 1961 until 1981. The court first holds that in determining the parties' individual allocated share of response costs, defendants' waste-in list is the appropriate measuring device. Defendants' methodology of determining the volume of batteries processed at the site during its operation is the most accurate. It takes into account more available documents and information, and it gives the court a more accurate account of the spent batteries not only for the site itself, but also for each specific defendant. The court next holds that a combination of both parties' economic experts is the most equitable solution in allocating response costs among the parties. The court is of the opinion that any party who dealt with the facility received an economic benefit and should be liable for its allocated share of response costs.

The court then holds that all of the Gore factors are relevant and worthy of the court's consideration. Applying the Gore factors, the court holds that several types of documents and evidence presented by plaintiff affirmatively indicate that defendants substantially contributed batteries to the site. In addition, the court finds that defendants' waste-in list reveals that the amount of hazardous waste involved is phenomenal. Based on testimony concerning the hazardous nature of lead, the court also holds that no reasonable party would disagree with the fact that lead is recognized and listed as a hazardous substance pursuant to CERCLA § 104(14). The court next holds that defendants cannot escape the fact that they sent batteries to the plant and that it was their batteries that were sold for lead reclamation. The court finds, however, that plaintiff's predecessor should have made a better effort in attempting compliance, or at least of becoming concerned that its operation did not comply with the state environmental agency's standards and orders. There were things that could have been done or changed to prevent damage that did not require technological information or enormous amounts of money or resources. Therefore, based on equity principles, the court holds that the lack of care exhibited by plaintiff's predecessor warrants an increase in plaintiff's share of the cleanup costs. However, defendant-suppliers should not be burdened with a cost equal to plaintiff, because the past owner/operator of the site continually refused to enforce or implement available measures to reduce emissions. The court rejects defendants' argument that they should not be responsible for any of the cleanup costs because the record shows that they received great economic benefit from bartering with the former owner/operator and that it was their batteries that were sent to the site in mass quantities.

Counsel for Plaintiff
Dennis Suplee
Schnader, Harrison, Segal & Lewis
1600 Market St., Ste. 3600, Philadelphia PA 19103
(215) 751-2000

Counsel for Defendants
Michael Flannelly
Morgan & Flannelly
18 S. George St., Ste. 201, York PA 17401
(717) 854-2822