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E.S. Robbins Corp. v. Eastman Chem. Co.

ELR Citation: 26 ELR 20866
Nos. No. CV 93-B-932-NW, 912 F. Supp. 1476/42 ERC 1528/(N.D. Ala., 09/28/1995)

The court holds that a chemical manufacturer is not liable under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or state common law for contamination allegedly resulting from spills that occurred while independent truckers off-loaded the manufacturer's product into a customer's storage tanks. The court first holds that the manufacturer is not liable as an owner or operator of any facility from which hazardous substances were released and is, therefore, not a responsible party under CERCLA §107(a)(2). Noting the customer's argument that the trucks in which the product was transported are "facilities" under CERCLA, the court finds that the manufacturer did not own the trucks. Furthermore, the customer has not presented sufficient evidence to enable a reasonable jury to conclude that the manufacturer actually supervised the independent truckers' activities such that the manufacturer could be held liable as an owner or operator under CERCLA. With respect to the manufacturer's alleged "arranger" liability, the court finds no evidence that in selling the chemical product to the customer, the manufacturer was really arranging for its ultimate disposal.

With respect to the customer's common-law strict liability claim, the court holds that the transportation and delivery of the chemical product does not constitute an abnormally dangerous activity. In addition, the customer has not presented sufficient evidence from which a jury could reasonably conclude that merely transporting and off-loading the chemical product was inherently dangerous, such that the manufacturer could not delegate that duty under §§416 and 427 of the Restatement (Second) of Torts. With respect to the customer's wantonness and negligence claims, the court holds that the customer failed to demonstrate either that the manufacturer had any duty or that it failed to fulfill any duty to the customer regarding the off-loading of the product. The customer argues that the manufacturer assumed a duty to off-load the product, but the cases the customer cites are distinguishable because they all involved active control of the defendant's activity. Merely providing instructions and suggestions does not result in the manufacturer's assumption of a duty to off-load the material or to do so in any particular manner. In addition, the court finds no industry standard imposing a duty on a manufacturer to off-load a product in a particular manner. Finally, the court holds that the manufacturer is not liable even if the spillage constituted a nuisance or trespass, because the manufacturer had no control over the off-loading of product by the truckers or the customer.

Counsel for Plaintiffs
Walter H. Monroe
Bradley, Arant, Rose & White
2001 Park Pl., Ste. 1400, Birmingham AL 35283
(205) 521-8000

Counsel for Defendants
Charles A. Perry
Hunton & Williams
NationsBank Plaza
600 Peachtree St. NE, Atlanta GA 30308
(404) 888-4000