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Marriott Corp. v. Simkins Indus., Inc.

ELR Citation: 26 ELR 21577
Nos. No. 92-2541-CIV, 929 F. Supp. 396/(S.D. Fla., 01/24/1996) CERCLA response cost recoverable

The court holds that the costs a corporation incurred in cleaning up a paper mill site it purchased from a paper recycling company are reasonable and consistent with the national contingency plan (NCP) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and that the president of the paper recycling company is individually liable for those costs. The court first finds that the release of hazardous materials that contaminated the site and its groundwater occurred over a 20-year period during the paper recycling company's ownership of the site. The court holds that the president's actual control of the paper mill's operations makes him individually liable for the purchaser's cleanup costs. As president, controlling shareholder, and director of the recycling company, he had actual authority and controlled the mill's operations including waste disposal on a day-to-day basis. The court next holds that the purchaser's response actions at the site were reasonable and necessary under CERCLA. The court further holds that the purchaser's decision to expand its excavation beyond areas identified in the cleanup plan was appropriate, necessary, and consistent with the NCP. The court also holds that the increase in material excavated at the site by more than 50 percent from the initially estimated quantity did not require an "explanation of significant differences" under 40 C.F.R. §300.435. The remedy, excavation of hazardous-substance-laden industrial wastes, including sludge and debris, did not change significantly. Further, the statutory requirement for public comment was satisfied with newspaper advertising for a public hearing, notice to the paper recycling company of a remedial action plan, and the response and involvement of the county government where the site is located.

Counsel for Plaintiff
Kirk Burns
Douglas M. Halsey
First Union Financial Ctr.
200 S. Biscayne Blvd., Ste. 4980, Miami FL 33131
(305) 375-0077

Counsel for Defendants
Mark Kobelinski
Earl, Blank, Kavanaugh & Stotts
One Biscayne Tower
Two S. Biscayne Blvd., Ste. 3636, Miami FL 33131
(305) 358-3000