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Ekotek Site PRP Comm. v. Self

Citation: 28 ELR 21480
No. 94-277L, 1 F. Supp. 2d 1282/46 ERC 1614/(D. Utah, 03/18/1998)

The court holds that a potentially responsible party (PRP) must pay 1 percent of the past and future response costs incurred during the cleanup of a contaminated site in Salt Lake City, Utah, by a committee of PRPs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first notes that the PRP consented to its liability under CERCLA both as an owner/operator under § 107(a)(2), who owned and ran the yard on the eastern half of the site, and as a generator under § 107(a)(3), who sent material containing hazardous substances to the western portion of the site for recycling. Therefore, under CERCLA §§ 107(a) and 113, the PRP is responsible for its equitable share of necessary costs of response incurred by the committee that are consistent with the national contingency plan. The court next holds that costs related to the management of the committee's PRP database go beyond mere identification of the PRPs and, therefore, are not recoverable under CERCLA. The great majority of the work with the database came after the PRPs had been identified from the site records. Maintaining the database during the years that followed no doubt helped the committee keep track of generator volumes and settlements. Such purposes are related to the reallocation of costs, however, and those costs are not recoverable. Further, the committee failed to meet its burden of affirmatively proving that any particular portion of the disputed cost items were necessary response costs. The court also holds that the costs incurred when the committee conducted two audits to review expenses that the U.S. Environmental Protection Agency charged to the committee are not recoverable under CERCLA. The audits were not necessary to the cleanup,but rather concerned how much the committee owed with respect to that cleanup.

The court then estimates that the PRP sent between 30,000 and 40,000 gallons of waste oil to the west side of the site between 1953 and 1975. The court reached this number by analyzing the waste-in sheets recording the waste oil the PRP sent to the west side. The court further concludes that the PRP's likely contribution to the environmental problem on the east side of the site, in comparison to that by the subsequent owners, is minimal, and that the PRP's equitably allocated share should reflect that relative lack of responsibility.

The court next holds that it will not attempt to divide the response costs by side in order to assign the PRP separate shares of costs as a generator and as an owner/operator. The PRP's equitable share as a generator would likely not exceed one-quarter of 1 percent. However, the PRP contributed to contamination on the east side of the site, and its share should be increased above its generator share to reflect that fact. The court, however, concludes that any such increase should be small because that contribution was only minimal.

Therefore, the court holds that under all the circumstances of this case, the PRP should be allocated responsibility for 1 percent of the committee's past and future response costs that are recoverable under CERCLA. Such an apportionment is equitable because it reflects the PRP's contribution at the site both as a generator and as an owner/operator.

[Prior decisions in this litigation are published at 25 ELR 21331 and 27 ELR 20147 and 20659.]

Counsel for Plaintiff
Paul D. Phillips, Steven W. Black
Holland & Hart
555 17th St., Ste. 2900, Denver CO 80201
(303) 295-8000

Counsel for Defendants
Derek J. Lobo
Law Offices of Radmila A. Fulton
1545 Hotel Cir. S., Ste. 190, San Diego CA 92108
(619) 293-7737