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United States v. Davis

Citation: 29 ELR 20436
No. 90-484-T, 20 F. Supp. 2d 326/47 ERC 1680/(D.R.I., 09/28/1998)

The court holds that a hazardous waste generator that agreed to pay a portion of a hazardous waste site's response costs was not entitled to declaratory judgment allocating Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) responsibility for future remediation costs among potentially responsible parties (PRPs). The court first holds that the use of a declaratory judgment to allocate future CERCLA liability is appropriate. A large quantity of hazardous waste was deposited at the site and there is no question that substantial cleanup costs will be incurred. Moreover, liability for those costs is hotly disputed, and all available evidence bearing on the nature and sources of the wastes is known. In addition, allocating liability at this time serves CERCLA's objective of encouraging settlement of such disputes.

The court next holds that the settling generator has failed to establish that one of the PRPs is liable as a transporter under CERCLA. The generator failed to present sufficient evidence that the transporter selected the site. Because evidence of the dealings between the settling generator and the transporter was readily available and under the control of the settling generator, the settling generator's failure to present the evidence or to explain why it was unable to do so, gives rise to an inference that the evidence would have been unfavorable to the settling generator. The court further holds that a municipality that arranged for the disposal of abandoned hazardous waste at the site acted in response to an emergency caused by the release of hazardous substances generated by another, and therefore, by virtue of CERCLA § 101(d)(2), is not liable as an arranger.

The court also holds that the settling generator has failed to establish a prima facie case that two of the PRPs deposited their waste at the site. The court, however, then holds that factual issues preclude granting a declaratory judgment for the remaining PRPs. The court last holds that the settling generator has established a likelihood that it will be required to pay more than its fair share of the alleged liability. The settling generator has presented evidence that it is obligated to pay 30.5 percent of the cleanup cost, and it claims that the remaining PRPs are almost entirely responsible for these costs.

[Other decisions in this litigation are published at 29 ELR 20441. Prior decisions in this litigation are published at 28 ELR 21412.]

Counsel for Plaintiff
Everett C. Sammartino
U.S. Attorney's Office
Westminster Sq., Bldg. 10
10 Dorrance St., 10th Fl., Providence RI 02903
(401) 528-5477

Counsel for Defendants
Thomas C. Angelone
Hodosh, Spinella & Angelone
Shakespeare Hall
128 Dorrance St., Ste. 450, Providence RI 02901
(401) 274-0200