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American Color & Chem. Corp. v. Tenneco Polymers, Inc.

ELR Citation: 26 ELR 21261
Nos. C/A 3:90-2741-0, 918 F. Supp. 945/(D.S.C., 04/21/1995)

The court holds that the former owner of property contaminated with polychlorinated biphenyls (PCBs) is liable under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for cleanup costs that the current owner of the site incurred. The court first notes that the former owner has conceded that it is a covered person under §107(a), that the site is a facility under §101(9), and that the PCBs released are a hazardous substance under §101(22). The court next holds that the current owner substantially complied with the 1990 national contingency plan (NCP) in cleaning up the site and incurring response costs. The current owner showed that documents substantially similar to the documents that the 1990 NCP requires were prepared. The court next holds that the South Carolina Department of Health and Environmental Control's (DHEC's) participation in the cleanup served as a substitute for individual public participation, because the agency is charged with protecting the public interest and actively involved itself in all aspects of investigating, planning, and remediating the site. Moreover, the public, including the former site owner, made meaningful public comment and influenced the chosen remedial response. The court next holds that the DHEC's consent orders were substantially equivalent to those found in the NCP, and that the former owner waived its right to insist on technical compliance with the NCP, because it suggested that the amended consent order not require NCP compliance and also participated an equal basis with the current owner in deciding on the remedial action. The court holds that the former owner must reimburse the current owner for all response costs associated with the site's remediation, including future costs associated with the incidental remediation of slight non-PCB contamination occurring as the result of the remediation and investigation. The former owner admitted that its activities resulted in the discharge of hazardous wastes into the environment at the facility, which it owned at the time. The current owner did not use any PCB-containing products at the site and possessed no knowledge of PCB contamination when it purchased the site. The court holds that the former owner failed to show that the current owner's monetary relief should be reduced or offset under §113. The court also holds that applying CERCLA retroactively does not violate the former owner's constitutional right to due process. Finally, the court holds that the current owner is not entitled to attorney fees.

Counsel for Plaintiff
Robert E. Stepp
Glenn, Irvin, Murphy, Gray & Stepp
Southern National Bank Bldg.
1901 Assembly St., Ste. 390, Columbia SC 29202
(803) 765-1100

Counsel for Defendant
Michael S. Thwaites
Ogletree, Deakins, Nash, Smoak & Stewart
Palmetto Ctr.
1426 Main St., Ste. 1820, Greenville SC 29211
(803) 252-1300