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B.F. Goodrich Co. v. Murtha

ELR Citation: 24 ELR 20515
Nos. No. N-87-52 (PCD), 840 F. Supp. 180/38 ERC 1162/(D. Conn., 12/20/1993) Summary judgment motions for contribution denied

The court holds that numerous generators of refuse, including several municipalities, are not liable in a contribution action under §113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs incurred at two waste disposal sites in Connecticut, because their waste did not include substances designated as hazardous by the U.S. Environmental Protection Agency (EPA) or they did not dispose of waste at the sites. The court first holds that a motorcycle and snowmobile business that allegedly generated waste consisting of newspaper, paper towels soiled with windshield cleaning fluid, plastic bags, used paper gaskets, spark plugs, and light bulbs is not liable because EPA has not listed any of the products as hazardous substances. The court holds that a corporation whose assertions that it sent no waste to the sites is uncontradicted by the record is also not liable. The court holds that a coffee shop is not liable because any chemical residues in containers it discarded were not shown to be other than minuscule, EPA has not listed as hazardous substances any of the chemical products allegedly contained in the residues, and the mere presence of a named hazardous substance as a constituent of a product does not render the product a hazardous substance. The court holds that a company is not liable as a successor to another company whose assets, name, and business it purchased while continuing to use its former assets, employees, and customers. The court holds not liable a company that disposed of scrap tires at the sites, because EPA has not listed tires as a hazardous substance and no evidence offered shows that hazardous substances in the tires contributed to conditions at either site giving rise to CERCLA liability.

The court next holds that the owner of apartment buildings, waste from which was disposed of at the sites, is not liable because no basis was provided for a finding that the waste, which included containers with minuscule residue of cleaning and polishing substances, cosmetics, pesticides and traps, waxes, soaps, ammonia, and shampoo, included hazardous substances. The court also holds that a hospital supply company is not liable, because EPA has not listed as hazardous substances the office waste it allegedly generated, which related to its manufacturing and packaging of hospital products, supplies, and instruments. The court denies summary judgment for an electronics company because evidence exists that the materials it disposed of may have contained hazardous substances. The court notes, however, that the company cannot be liable on the basis that components and general waste contained hazardous substances. The court dismisses without prejudice a claim against a general freight transfer business in bankruptcy subject to renewal in the event the stay on claims is lifted and pursuit of the claim in the court is deemed efficacious. The court dismisses a claim against a corporation that asserted, without challenge, that the court lacked personal jurisdiction over it and that it was not properly named.

The court holds that several municipalities are not liable as generators of municipal solid waste (MSW), because the fact that waste contains items that were made with, by use of, or incorporated components or elements that constituted or in turn contained hazardous substances is not a sufficient basis for finding that disposal of such waste constitutes disposal of hazardous substances. The court holds that no adequate foundation has been laid for the affidavit of an expert for the parties seeking contribution. The affidavit indicates that the MSW the expert studied contained products that in turn contained, as components or elements, hazardous substances. The court notes, however, that no evidence exists that any of the municipalities' MSW came from the four sources cited in the affidavit.

[Prior decisions in this litigation are published at 19 ELR 20357, 21 ELR 20777, 22 ELR 20683, and 23 ELR 21080. Pleadings in related litigation are published at ELR PEND. LIT. 66094, 66099, 66104, 66147, 66157, and 66161.]

Counsel for Plaintiffs
John J. O'Leary Jr.
Pierce, Atwood, Scribner, Allen & Lancaster
One Monument Sq., Portland ME 04101
(207) 773-6411

Counsel for Defendants
Mark Mininberg
Mininberg & Associates
315 Whitney Ave., New Haven CT 06534
(203) 562-4386