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

ELR Citation: 27 ELR 20838
Nos. 3 CV-91-1714, 954 F. Supp. 1014/(M.D. Pa., 01/29/1997) summary judgment for plaintiff on arranger liability of additional defendants

The court holds that four defendants in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) action by the former operator of a battery breaking facility are liable as arrangers for cleanup costs incurred at the site. The court first grants summary judgment to the operator on the liability of a metal company. The metal company contended that deposition pages the operator submitted in support of its summary judgment motion fail to reveal that the metal company sold spent batteries or arranged for the disposal of a hazardous substance under CERCLA §107(a)(3). Noting its prior holding that the sale of junk batteries to a battery recycling facility constitutes an arrangement for disposal or treatment of a hazardous substance, the court finds that responses to admissions and interrogatories show that the metal company knew that some of its batteries were taken to the site. The court next rejects the argument of two defendants that the spent batteries disposed of are not waste, but rather are a commodity. These spent batteries were not sold to the facility for placement in automobiles or machines, but rather were sold for the reclamation of lead. The court also denies these defendants' motion for reconsideration of its prior grant of summary judgment to the operator. That decision was not a manifest error. In addition, the court finds that no genuine issues of material fact preclude granting the operator summary judgment on these defendants' liability now. These defendants failed to show that any of their battery shipments did not go to the site. Finally, the court holds that another metal company is responsible for the sale of spent batteries it brokered for scrap dealers. Although the company asserts that it does not physically touch or handle any batteries in its standard brokered transactions, a party need not have actual control or ownership over hazardous waste in order for §107(a)(3) liability to attach.

[Other opinions in this litigation are published at 26 ELR 20516 and 21614, and 27 ELR 20774 and 20840.]

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

Counsel for Defendants
Michael Flannelly
Morgan & Flannelly
18 S. George St., Ste. 201, York PA 17401
(717) 854-2822