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United States v. Poly-Carb, Inc.

ELR Citation: 27 ELR 20902
Nos. CV-N-91-360-ECR, 951 F. Supp. 1518/(D. Nev., 12/03/1996)

The court holds that disputed factual issues preclude it from determining an oil company's liability as an arranger under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for a phenolic caustic spill at a chemical processing plant. The court first holds that the plant is a "facility" within the meaning of CERCLA §107(a)(3), that a release of a hazardous substance occurred, and that plaintiff incurred response costs. The court then holds that it lacks sufficient facts to decide if phenol caustic falls under CERCLA's petroleum exclusion and whether the caustic was being reclaimed.

Turning to the oil company's defenses, the court holds that plaintiff filed this action before CERCLA's three-year statute of limitations ran. The statute of limitations begins running after the completion of the removal action. Plaintiff "closed out" the site within three years of commencing this action. "Closing out" a site, which in this case included off-shipping drums of spent granular activated carbon, backfilling soil treatment area, removing above-ground plumbing and pumps, disconnecting site electrical power, and securing groundwater monitoring wells, constitutes a removal action. The court then holds that the oil company failed to raise a genuine issue of material fact as to whether an act of God, a windstorm, caused any release. The court holds, however, that genuine issues of material fact preclude summary judgment on the oil company's third-party defense. Although undisputed evidence tends to show that the spill was the result of an intentional act, the perpetrator is unknown. The court therefore cannot tell how the spill occurred or who caused it. The court also lacks adequate evidence to determine whether a third party was the spill's sole cause.

Counsel for Plaintiff
Lois J. Schiffer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Michael G. Thornton
Nossaman, Guthner, Knox & Elliott
50 California St., 34th Fl., San Francisco CA 94111
(415) 398-3600