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General Elec. Co. v. Litton Business Sys.

Citation: 19 ELR 21433
No. No. 87-3333-CV-S-4, 715 F. Supp. 949/30 ERC 1335/(W.D. Mo., 06/20/1989)

The court holds that defendant is liable, under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), for all response costs incurred by plaintiff in cleaning up a site plaintiff purchased from defendant in 1970. Defendant is successor by merger to a typewriter manufacturer that generated hazardous wastes which were dumped on its property. Plaintiff sold the property to an investment group in 1984 with knowledge that the property had been used for dumping hazardous waste by the previous owner. The court holds that the principle of unclean hands is not applicable because it was defendant's improper conduct, not the plaintiff's, that was the source of plaintiff's equitable claim. Moreover, the court expresses doubt that the unclean hands defense is available in CERCLA cases. The court holds that defendant is a "covered person" under CERCLA because it owned the property at issue during the time of disposal. The court also holds that the substance dumped was a listed waste, that the act of dumping on the property was a "release," that the property at issue is a "facility" because it is an area where hazardous substances have been deposited or come to be located, and that these factors caused plaintiff to incur response costs. The court holds that plaintiff's costs of investigation, planning, monitoring, implementing response actions, attorneys fees, and prejudgment interest are all properly recoverable. The court holds that plaintiff's response action was consistent with the National Contingency Plan (NCP) as a removal action, because state health agencies determined that the concentrations of hazardous substances at the site represented a significant risk to the public's health. Further, the lead agency determined that elimination of the release by removing the soil was not only the most appropriate action available, considering the current owners plans to develop the property, but the most cost effective. The court holds that plaintiff complied with the NCP's remedial action provisions. No public hearing was required because plaintiff had complied with applicable state requirements. Plaintiff also provided an appropriate site investigation and analysis of remedial alternatives. Finally, the court holds that application of the collateral benefit rule is factually unsupported because there is no evidence in the record that plaintiff knew that the defendant was using the site as a dump for hazardous wastes when it bought the property, and plaintiff would not receive a benefit from the cleanup.

Counsel for Plaintiff
James L. Moeller, William F. Ford
Gage & Tucker
2345 Grand Ave., P.O. Box 418200, Kansas City MO 64141
(816) 474-6460

Counsel for Defendant
Mathew W. Placzek
Joyner, Placzek & Francis
Ste. J, 1722 S. Glenstone, Springfield MO 65804
(417) 887-7229