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Briggs & Stratton Corp. v. Concrete Sales & Servs., Inc.

Citation: 28 ELR 20546
No. 5:95-CV-525-1, 990 F. Supp. 1473/46 ERC 1373/(M.D. Ga., 01/21/1998)

The court holds that bus manufacturers were not arrangers under § 107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for the treatment or disposal of hazardous substances generated by an electroplating business. The owner and trustees of the site where the hazardous wastes release occurred argue that by utilizing the electroplater's services, the bus manufacturers "otherwise arranged" for the disposal or treatment of the hazardous substances. The court first holds that the bus manufacturers' knowledge of the electroplating operations is insufficient to impose arranger liability as contemplated by CERCLA § 107(a)(3). Knowledge that there were shortcomings in the electroplater's operations or that some of the buildings were not being kept up is not sufficient to impose a duty on the bus manufacturers to exercise control over the waste disposal and indicates neither control nor the authority to control such operations. In addition, the bus manufacturers' providing parts for electroplating was not tantamount to ordering the electroplater to dispose of hazardous wastes. Nor did the bus manufacturers' knowledge that there were run-down buildings on the premises necessarily imply knowledge that wastes would be improperly disposed. And the bus manufacturers' specification of the coating required on the various parts similarly was not an affirmative act constituting control of the disposal of wastes generated in applying the coatings.

The court next holds that there is insufficient evidence that the loans that the bus manufacturers provided to the electroplater were anything other than arm's-length financial transactions. There is no indication that the bus manufacturers ever performed any electroplating themselves or that they ceased their own operations and began using the electroplater's services to escape liability. Further, there is no showing that the loans altered the relationship between the bus manufacturers and the electroplater or that they thereafter assumed control over the electroplater's operations. The court also holds that the bus manufacturers' written requirement that the electroplater comply with the provisions of the Toxic Substances Control Act and other laws did not give them the right or duty to control its waste disposal practices. The court then holds that two purchase orders, which appear to reflect one of the bus manufacturer's purchase of chemicals for the electroplater's use, do not adequately demonstrate that the bus manufacturers had ownership of the chemicals or the work in progress sufficient to impose arranger liability. At most, the purchase orders indicate that the bus manufacturer purchased chemicals for the electroplater's use in an isolated instance. Last, the court holds that the state-law claims against the bus manufacturers are barred by the statute of limitations. Because there are no genuine issues of material fact, the court grants the bus manufacturers' motion for summary judgment.

[A related decision to this case is published at 28 ELR 20063.]

Counsel for Plaintiff
Daniel S. Reinhardt
Troutman Sanders
5200 NationsBank Plaza
600 Peachtree St. NE, Atlanta GA 30308
(404) 885-3000

Counsel for Defendants
L. Robert Lovett
Lovett, Cowart & Ayerbe
2904 Vineville Ave., Macon GA 31202
(912) 750-0200