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ABB Indus. Sys., Inc. v. Prime Tech., Inc.

ELR Citation: 27 ELR 21335
Nos. No. 96-7869, 120 F.3d 351/44 ERC 2089/(2d Cir., 07/25/1997) CERCLA and RCRA citizen suit dismissed

The court dismisses a property owner's Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA), negligence, and contract claims against two companies that allegedly contaminated the owner's property while the property was under their control. The court first holds that the lower court properly dismissed the owner's CERCLA claims. None of the owner's evidence raises an issue of fact whether a spill, discharge, leak, etc. occurred while the companies controlled the site. Next, the court holds that prior owners and operators of a site are not liable under CERCLA for mere passive migration. None of the terms used in the definition of "disposal" is commonly used to refer to the gradual spreading of hazardous chemicals already in the ground. And Congress' use of the term "leaching" in the definition of "release" for current owner liability purposes demonstrates that Congress knew that passive migration occurred but decided not to impose such liability on prior owners. Further, if disposal included the gradual spreading of hazardous chemicals before the defendant acquired the site, the innocent owner defense would hardly ever be available. Moreover, this interpretation is consistent with CERCLA policy.

The court then holds that the owner's RCRA claims against the companies were properly dismissed. The owner cannot demonstrate that the companies are currently in violation of a permit or regulation under RCRA. And because the owner cannot show that the companies spilled hazardous chemicals or otherwise contaminated the site, the owner cannot establish that the companies have contributed or are contributing to an endangerment to the environment. Next, the court holds that because the owner cannot establish that the companies contaminated the site, the owner's negligence claims were properly dismissed. Applying New York State law, the court then holds that the statute of limitations bars the owner's breach of contract claim. The court therefore affirms the lower court decision.

Counsel for Plaintiff
Kevin J. Lyons
Cook & Franke
600 E. Mason St., Milwaukee WI 53202
(414) 271-5900

Counsel for Defendants
Allan B. Winston
Winston & Winston
411 Theodore Fremd Ave., Rye NY 10580
(914) 967-7000

Before Meskill, Newman and Keenan,* JJ.