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United States v. Hooker Chems. & Plastics Corp.

ELR Citation: 18 ELR 20580
Nos. No. CIV-79-990C, 680 F. Supp. 546/27 ERC 1296/(W.D.N.Y., 02/23/1988) Ruling on CERCLA liability of OCC

The court holds that defendant Occidental Chemical Corporation is strictly, jointly, and severally liable under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs incurred by the United States and New York at the Love Canal waste disposal site. The court first holds that defendant meets the statutory definition of a potentially liable party under CERCLA, since it operated a facility at which hazardous substances were disposed and from which there was a release of hazardous substances that caused plaintiffs to incur response costs. The court rules that CERCLA's liability provisions apply retroactively, rejecting defendant's constitutional challenges under the Due Process, Taking, and Contract Clauses. The court holds that plaintiffs may recover response costs incurred before CERCLA's enactment. The court holds that defendant may not assert the third-party defense in CERCLA §107(b)(3). Defendant deeded the Love Canal property to a third party, which later deeded part of the property to another third party. Defendant's direct and indirect contractual relationships with these parties that it claims are solely responsible for the release of hazardous chemicals at the site preclude it from asserting the defense. Even if no contractual relationship existed, the third defense would still fail because defendant's disposal practices were at least partially responsible for the release or threatened release of chemicals.

[Previous decisions in this litigation appear at 11 ELR 20883, 12 ELR 20701, 14 ELR 20875, 15 ELR 20801, and 16 ELR 20079.]

Counsel for Plaintiffs
Barry S. Sandals, Bruce S. Gelbe
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Defendants
Thomas H. Truitt
Piper & Marbury
888 16th St. NW, Washington DC 20006
(202) 785-8150