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Elf Atochem N. Am. v. United States

ELR Citation: 26 ELR 21062
Nos. 92-7458, 94-0662, 914 F. Supp. 1166/42 ERC 1472/(E.D. Pa., 02/12/1996) summary judgment motions on government's CERCLA liability

The court holds that the federal government's mere allocation of raw materials to a facility during World War II was not equivalent to supplying raw materials for purposes of arranger liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that genuine issues of material fact as to whether the government owned arsenic trichlorinators that a government financed contractor used to manufacture a poison gas component during World War II preclude summary judgment of CERCLA liability claims. The court also holds that genuine issues of material fact as to whether the government managed or controlled the private facility at which the contractor manufactured the poison gas preclude summary judgment of claims against the government. The test for control uses a totality of circumstances standard. This test is unusual to resolve on summary judgment, especially when issues such as the number and nature of on-site inspections and visits by the government are disputed. The court next holds that there is insufficient evidence to prove that sulphuric acid used in the chlorinators that the government allegedly owned was released into the environment for purposes of owner liability under CERCLA. That the sulphuric acid was shunted to other machines in the facility, reclaimed in drums, or given away does not establish that there was a release of the acid into the environment. The court also holds that arsenic trioxide dust that settled when it was poured into the chlorinators that the government allegedly owned was a release of hazardous substances at the chlorinators; it was not a release at the manufacturer's floor on which it landed. The court next holds that genuine issues of material fact preclude summary judgment on whether arsenic was released from government-owned tank cars at the manufacturer's facility. The court also holds that the mere allocation of raw materials to the manufacturer was not equivalent to supplying raw materials for purposes of the government's potential arranger liability under CERCLA. Finally, the court states that a party with substantial control over operations can be liable as an operator under CERCLA, but only if the control is pervasive.

[Prior decisions in this litigation are published at 24 ELR 20352 and 25 ELR 20585, 20673, and 21367.]

Counsel for Plaintiff
William J. Kennedy
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch St., Philadelphia PA 19103
(215) 994-4000

Counsel for Defendant
Brud Rossmann
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000