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Interstate Power Co. v. Kansas City Power & Light Co.

ELR Citation: 26 ELR 20936
Nos. No. C 89-3033, 909 F. Supp. 1284/(N.D. Iowa, 07/20/1994) contractor liab. on reconsideration

The court holds that a contractor that a property owner and a local municipality hired to perform demolition and construction activities on the property and who redistributed and spread existing contamination across the property and into a nearby stream is not liable under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as an arranger, owner or operator, or a transporter. The court first holds that it is appropriate to reconsider whether the contractor is liable under CERCLA. The Eighth Circuit dismissed the appeal of the liability issue for lack of jurisdiction because it was not a final order. Nonfinal orders are subject to revision at any time before the entry of judgment adjudicating all the parties' claims, rights, and liabilities. The court next holds that the contractor is not an arranger under §107(a)(3). The contractor had no authority to control the disposal of hazardous substances at the site and did nothing that it was not ordered to do. The court also holds that the contractor is not an owner or operator under §107(a)(1)-(2), because it had no authority to control the cause of contamination at the time the hazardous substances were released into the environment. Finally, the court holds that the contractor is not a transporter under §107(a)(4). The contractor did not select the site for disposal.

[The Eighth Circuit's ruling is published at 23 ELR 21246.]

Counsel for Plaintiff
Clement F. Springer Jr.
Defrees & Fiske
200 S. Michigan Ave., Chicago IL 60604
(312) 372-4000

Counsel for Defendant
Mark L. Zaiger
Shuttleworth & Ingersoll
500 Firstar Bank Bldg., Cedar Rapids IA 52406
(319) 365-9461