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Southfund Partners III v. Sears, Roebuck & Co.

ELR Citation: 30 ELR 20044
Nos. No. CIV.A. 1:97-CV-1369, 57 F. Supp. 2d 1369/49 ERC 1052/(N.D. Ga., 07/30/1999)

The court holds that a company is not entitled to recover response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) from the former owner of property contaminated by leaking underground storage tanks (USTs). The court first holds that the company's CERCLA claim is not barred by the sales contract's "as is" provision because under Georgia law, "as is" provisions do not release a seller from liability on nonwarranty claims. The court additionally holds that the former owner is a covered person under CERCLA. Regardless of whether it committed affirmative acts to cause the leak or spill, the former owner owned the property when hazardous materials leaked out of the USTs and into the soil. The former owner knew or should have known the solvent tanks were located on the property and acted unreasonably by ignoring the tanks during the 22 years they filled with rainwater and released solvents. The court, however, next holds that no reasonable jury could find that the company's response costs were necessary to address threats to the public health or the environment. The court also holds that the company failed to demonstrate substantial compliance with the national contingency plan (NCP). The company cannot prove satisfaction of the NCP's public participation requirement, and it failed to satisfy the site evaluation requirements of the NCP. The court, therefore, dismisses the company's CERCLA claims.

Nevertheless, the court next holds that the company may pursue its state-law claim for response costs associated with dry cleaning solvents found in one of the property's plumes under the Georgia Hazardous Site Response Act. Reasonable jurors could conclude that the former owner knew or should have known that USTs were present on the property and that the former owner acted unreasonably in failing to cap or remove the USTs. The company, however, may not seek response costs incurred to clean up petroleum found in a second plume.

Counsel for Plaintiff
Janney E. Sanders
Adams, Clifton, Sanders & Smith
311 S. Big A Rd., Toccoa GA 30577
(706) 886-7533

Counsel for Defendant
Jay M. Barber
Ogletree, Deakins, Nash, Smoak & Stewart
3800 One Atlantic Center
1201 W. Peachtree St. NW, Atlanta GA 30309
(404) 881-1300