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Pneumo Abex Corp. v. Bessemer & Lake Erie R.R.

ELR Citation: 27 ELR 20230
Nos. 2:94cv716, 936 F. Supp. 1250/(E.D. Va., 09/12/1996) apportionment of response costs

The court holds that railroads that sent used bearings to a foundry are liable for 40.1 percent of the response costs incurred at the foundry site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Various landowners at the site, including the city of Portsmouth, Virginia, and the city housing authority, sued the railroads and other foundry customers, as well as other landowners at the site, to recover these costs. Although most of the defendants settled, the railroads did not. The court first holds that the harm at the site is indivisible. Although the U.S. Environmental Protection Agency's (EPA's) determination that contamination at the site is foundry-related is not dispositive, the railroads failed to provide the court with a feasible alternative. The court next holds that the methodology of plaintiffs' expert, who estimated the poundage of worn bearings that each defendant sent to the foundry, is a reasonable approach for estimating defendants' contribution to the site.

The court next holds that the majority of plaintiffs' claimed response costs are recoverable, because plaintiffs conducted their response activities under the direction of EPA and the Virginia Department of Waste Management (VDWM), consistent with various administrative orders and consent decrees. The court further holds that CERCLA §113(g)(2)(A)'s three-year statute of limitations does not bar plaintiffs' claims, because plaintiffs' efforts have been continuous and EPA did not issue its record of decision (ROD) until 1992 and its amended ROD until 1994. The court holds that plaintiffs may recover EPA oversight costs that they have already incurred and may recover future EPA and VDWM oversight costs that are consistent with the national contingency plan (NCP) and the court's opinion. The portion of plaintiffs' claimed attorney fees that are closely tied to the actual cleanup are also recoverable. Deficiencies in plaintiffs' proof, however, prevent recovery on most of their claims for the salaries of city employees. But plaintiffs' costs of testing the level of lead in the blood of site residents are recoverable, because the costs appear to be the result of the VDWM's attempt to assess the effects of the release or threatened release on site residents and the rapidity with which plaintiffs needed to respond to the release or threatened release. Plaintiffs may also recover the costs of contractors and vendors that assisted in the cleanup and removal of hazardous substances and took actions consistent with a permanent remedy.

The court holds that the railroads failed to adduce sufficient proof for the court to find that plaintiffs are attempting to exact a double remedy and holds that the amount of necessary response costs consistent with the NCP is $6,829,566.26. Plaintiffs and defendants should bear the costs of cleanup equally. Defendants were fully involved in the transport of hazardous substances and were also involved in the treatment and/or disposal of substances, and plaintiffs were fully involved in the disposal and/or treatment of hazardous substances. The parties are only able to roughly distinguish their contributions to the site. Both plaintiffs and defendants profited from the disposal arrangement, and nothing in the record suggests that any of the parties is unable to pay a share of the cleanup costs. Finally, the court holds that the railroads are responsible for 80.1 percent of defendants' 50-percent share of the liability for response costs and that plaintiffs are entitled to prejudgment interest.

[A prior opinion in this litigation is published at 26 ELR 21224. A related opinion is published at 27 ELR 20241.]

Counsel for Plaintiffs
James A. Gorry III
Taylor & Walker
1300 First Virginia Towers
555 Main St., Norfolk VA 23510
(757) 625-7300

Counsel for Defendants
Michael H. Wojcik
Weinberg & Stein
1825 Dominion Towers, Norfolk VA 23514
(757) 627-1066