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Struhar v. Cleveland, City of

Citation: 28 ELR 21572
(05/29/1998)

The court holds that a city is not liable as an arranger under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for burying discarded barrels and drums at an airport, and cannot be held responsible for the medical monitoring costs of a firefighter exposed to hazardous chemicals. The firefighter allegedly suffered physical injury from exposure to chemicals during his participation in fire drills at the airport. The court first holds that the firefighter failed to produce sufficient evidence to show that the city intentionally arranged for the disposal of hazardous chemicals. The evidence suggests that the city intended to bury the barrels only as part of a general cleaning plan. Furthermore, no evidence shows that the city specifically sought to dispose of the trace chemicals remaining in the barrels.

The court then holds that the city is not liable to the firefighter for medical monitoring costs. CERCLA does not provide a private right-of-action for recovery of medical monitoring costs. Private parties may not themselves establish a medical monitoring fund under CERCLA. Nor may private parties recover monitoring costs as costs of recovery. Judicial interpretation of "costs of recovery" and CERCLA's separate funding provisions governing medical monitoring costs both provide that "costs of recovery" under CERCLA do not include medical monitoring costs. Rather, the authority to create such a fund rests solely with the Agency for Toxic Substances and Disease Registry. The court then dismisses the firefighter's state-law claims without prejudice so that he may pursue them in state court.

Counsel for Plaintiff
Michael Shafran
Shafran & Associates
1370 Ontario St., Cleveland OH 44106
(216) 696-1076

Counsel for Defendant
Heather D. Graham-Oliver, Ass't Director of Law
Case Western Reserve University
School of Law
11075 East Blvd., Cleveland OH 44106
(216) 368-3600