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United States v. Pesses

Citation: 30 ELR 20486
No. No. 90-654, 120 F. Supp. 2d 503/(W.D. Pa., 03/21/2000) Allocation of liability to non-settling PRP

The court holds that a metal company must pay over $ 1.49 million in remediation costs to a group of 191 settling potentially responsible parties (PRPs) that incurredover $ 10 million in Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cleanup and recovery costs at the Metcoa Superfund site in Pulaski, Pennsylvania. The settling PRPs entered a consent decree with the United States and agreed to remediate the site. The metal company, however, refused to participate in any remediation at the site and declined to enter into the decree even after a court determined that the company was liable under CERCLA. The court first holds that the costs incurred by the settling PRPs are reasonable and consistent with the national contingency plan. The court then holds that the metal company substantially contributed to contamination at the site. The metal company, which sold nickel to the manufacturer at the site, was the sixth largest contributor by weight of metals. The court next holds that the evidence indicates that the metal company did not participate in any remediation work at the site and did not perform any due diligence with respect to the operations of the site. The court then holds that the company failed to sustain its burden of showing the divisibility of the cleanup costs. The response costs at the site arose in connection with material processing that commingled waste materials at the site. The response actions were necessary, and the response costs are incapable of apportionment by party based on particular metal type. Therefore, the court used the Gore factors of contribution to the harm, toxicity of the waste volume by weight, and cooperation with the government by the settling parties to enter judgment against the company.

[A prior decision in this litigation is published at 23 ELR 20076.]

The full text of this decision is available from ELR (12 pp., ELR Order No. L-198).

Counsel for Plaintiff
Robert L. Eberhardt, Ass't U.S. Attorney
U.S. Attorney's Office
633 U.S. Post Office & CtHse.
7th Ave. & Grant Sts., Pittsburgh PA 15219
(412) 644-3500

Counsel for Defendants
Anthony P. Picadio
Picadio, McCall, Miller & Norton
4710 USX Tower
600 Grant St., Pittsburgh PA 15219
(412) 288-4000