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B.F. Goodrich Co. v. Murtha

ELR Citation: 19 ELR 20357
Nos. Nos. N-87-52 (PCD) et al., 697 F. Supp. 89/(D. Conn., 10/24/1988) Motion for access order & preliminary injunction granted

The court holds that the defendants, owners, and past operators of a landfill listed on the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA) National Priorities List, must afford certain third parties, who entered into a consent decree with the Environmental Protection Agency, full and unrestricted access to the site to undertake response actions. While CERCLA §104(e) does not expressly authorize a court order requiring a landowner to permit private parties to gain entry to a site, such an order is authorized under §106(a). Section 104(e) of CERCLA is not, as the defendants contend, the exclusive provision for access to hazardous waste sites under CERCLA. Reading §106(a) as being limited by §104(e) would be inconsistent with the purposes of CERCLA. In addition, CERCLA §122, which prohibits nonsettling parties from interfering with remedial actions, supports the issuance of an access order under §106(a). The court next rejects defendants' argument that the language of §106(a) prevents the issuance of the order. The court holds that the "imminent and substantial endangerment" language is not limited to emergency situations. An endangerment is "imminent" if conditions that give rise to it are present, even though the actual harm may not be realized for years. Finally, the court holds that once an endangerment finding is made under §106(a), a showing of threatened irreparable harm need not be made before an injunction is issued. It is appropriate for the court to consider the availability of an adequate remedy at law, the possibility of harm to the non-moving party if relief is granted, the likelihood of success on the merits, and the public interest.

Counsel for Plaintiff
Barbara A. Finamore, William D. Brighton
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Louis R. Pepe, David E. Rosengren
Pepe & Hazard
One Corporate Ctr., Hartford CT 06103
(203) 522-5175

Counsel for Defendants
Laura B. Frankel
Updike, Kelly & Spellacy
One State St., P.O. Box 31277, Hartford CT 06103-3176
(203) 548-2600