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EPA v. New Orleans Pub. Serv., Inc.

Citation: 17 ELR 21288
No. No. 86-4577, 826 F.2d 361/26 ERC 1521/(5th Cir., 09/03/1987)

The court holds that an electrical utility is not liable for polychlorinated biphenyl (PCB) contamination from electrical transformers that it installed in a brewery building, since the transformers were component parts of the building rather than movables owned by the utility. EPA had assessed a $17,000 civil penalty against the utility for improper disposal of the transformers. The court holds that the transformers were component parts of the building under Louisiana law. The court initially holds that it must determine the status of the transformers, which were installed in the brewery building in 1963, under the current version of the Louisiana statute as revised in 1978. Classification of the transformers under the current statute is not a retroactive application of the statute, since the new classification is applied only to determine status for matters arising in the future. Prior to the 1978 revision of the law, the transformers were movables because there was no unity of ownership — they were not attached to the building by the building owner. After the 1978 revision, which removed the unity of ownership requirement, the transformers became immovables. The transformers were "electrical installations" within the meaning of the statute and thus are considered immovables.The Environmental Protection Agency administrative law judge erred in considering the parties' treatment of the transformers.

Counsel for Defendant-Appellant
Eugene G. Taggart
Monroe & Lemann
201 St. Charles Ave., New Orleans LA 70170
(504) 586-1900

Counsel for Plaintiff-Appellee
Beth S. Ginsburg
Civil Division
Department of Justice, Washington DC 20530
(202) 724-6820

Before WILLIAMS and HILL, Circuit Judges, and MENTZ,* District Judge