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Mathews v. Dow Chem. Co.

ELR Citation: 27 ELR 20759
Nos. No. 96-WY-1368-CB, 947 F. Supp. 1517/(D. Colo., 12/02/1996)

The court denies defendant chemical companies' motions to dismiss landowners' Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims to recover the costs of cleaning up contamination caused by leaking chemicals from a site that was used to package, store, and ship hazardous substances. The court first holds that the landowners are not limited to bringing a CERCLA §113 claim, but may also bring a §107 cost recovery action. The landowners pleaded an affirmative defense, which would absolve them of liability. A party with a valid affirmative defense to potentially responsible party liability is not limited to actions for contribution under CERCLA §113. The court next rejects defendants' assertion that the landowners may not avail themselves of the innocent landowner defense because they failed to conduct a commercially reasonable environmental inspection before purchasing the property. The landowners alleged that they engaged in a commercially reasonable inspection and this question involves factual issues that are not appropriately resolved in a motion to dismiss. The court then holds that the landowners satisfied notice pleading requirements by seeking recovery of investigative costs and technical consultants' fees. The court refuses to exercise supplemental jurisdiction over the landowners' state negligence and trespass claims. Although the state and CERCLA claims do arise out of a common nucleus of operative facts, the state claims would predominate over the CERCLA action if the court were to exercise supplemental jurisdiction. The court then holds a defendant that had hazardous substances packaged on the site was liable as an "arranger." The landowners sufficiently alleged that spills were an inherent part of the packaging and storage process and that defendant knew or should have known of the spills, that defendant retained ownership of its products throughout the storing and packaging process, and that defendant exercised control over certain activities at the site. The court, however, holds that defendant is not liable as an "operator," because the landowners did not show that the defendant had been involved in the daily operations of the facility and exercised pervasive control over its operations.

Counsel for Plaintiffs
Timothy R. Gablehouse
Gablehouse & Epel
1050 17th St., Ste. 1730, Denver CO 80265
(303) 844-3433/572-0050

Counsel for Defendants
C. Michael Montgomery
Montgomery, Green, Jarvis, Kolodny & Markusson
600 17th St., Ste. 2400, Denver CO 80202
(303) 592-6600