Jump to Navigation
Jump to Content

Gould Inc. v. A&M Battery & Tire Serv.

ELR Citation: 26 ELR 21614
Nos. 3 CV-91-1714, 933 F. Supp. 431/43 ERC 1853/(M.D. Pa., 07/15/1996) summary judgment for plaintiff on arranger liability

The court holds that companies that sent spent batteries to a battery recycling facility are liable under §107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for cleanup costs incurred at the site. The court first rejects defendants' argument that they cannot be liable under §107(a)(3 because their junk batteries were not solid waste. Section 107(a)(3) speaks in terms of hazardous substances, not just solid waste, and there can be no argument that lead is not a hazardous substance. For purposes of plaintiff's motion for partial summary judgment, the court holds that the sale of junk batteries to a battery recycling facility constitutes an arrangement for the disposal or treatment of a hazardous substance. The court next rejects the argument that because the batteries allegedly were useful products sold for a useful purpose, defendants are not liable under §107(a)(3). The batteries were not sold for their originally intended purpose. The courtrejects defendants' argument that they were indirect sellers with no control over how batteries that they sold to brokers would be disposed of. Evidence to date establishes that they knew the batteries' destination. Also, courts have not allowed battery suppliers to escape liability by "playing dumb" about how their hazardous waste is disposed of. The court rejects a defendant's argument that because only some of its batteries went to plaintiff's site, it is not liable. There was testimony that less than one percent of the batteries sold to the recycling company went to other sites. The court also rejects the argument that defendants who sell only "soft lead" as opposed to lead-acid batteries are not liable as arrangers. The defendant that made this argument admitted selling scrap batteries to plaintiff's battery recycling company. The court next defers the issue of allocating liability to the conclusion of the liability stage of the proceedings, and grants summary judgment against another company that admitted selling batteries to plaintiff's recycling company. In addition, the court held that a company that assumed the liabilities of a corporation whose junk-battery sales to plaintiff's recycling company are undisputed is liable under §107(a)(3) and that the lack of memory of another defendant's chief executive officer concerning battery sales does not supplant his company's prior admission of battery sales. Finally, the court declines to follow United States v. Olin Corp., 26 ELR 21303 (S.D. Ala. 1996), which held that CERCLA does not apply retroactively.

[A prior decision in this litigation is published at 26 ELR 20516. A decision in related litigation is published at 21 ELR 20415.]

Counsel for Plaintiff
Dennis R. Suplee
Schnader, Harrison, Segal & Lewis
1600 Market St., Ste. 3600, Philadelphia PA 19103
(215) 751-2000

Counsel for Defendants
Donald B. Mitchell Jr., Laurel A. Bedig
Arent, Fox, Kintner, Plotkin & Kahn
1050 Connecticut Ave. NW, Washington DC 20036
(202) 857-6000