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United States v. Hercules, Inc.

ELR Citation: 31 ELR 20567
Nos. 99-3684 et al., 247 F.3d 706/52 ERC 1129/(8th Cir., 04/10/2001) Rev'd in part and aff'd in part

The court reverses a district court decision imposing joint and several liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the former owner of the Vertac Chemical Plant site in Jacksonville, Arkansas, and rejecting the former owner's argument that harm at the site was divisible, but upholds the court's decision that a company who purchased chemicals manufactured at the site was liable under CERCLA as an arranger. The court first reverses summary judgment against the former owner on the issue of liability and remands so that the district court can address the evidence supporting divisibility in light of the proper legal standards. In rejecting the former owner's divisibility arguments, the district court merely stated that the former owner failed to set forth any facts establishing that the harm is clearly divisible or that the former owner's waste did not, or could not, contribute to the release and resulting response costs at the site. The proper standard for determining divisibility, however, is that the defendant show either distinct harms or a "reasonable basis" for apportioning causation for a single harm. Thus, the former owner need not prove that its waste "did not, or could not, contribute" to any of the harm at the CERCLA site to establish divisibility because it is also possible to prove divisibility of single harms based on volumetric, chronological, or other types of evidence. The court next holds that the district court properly imposed arranger liability against a company that purchased chemicals manufactured at the site. The company argued that the district court erred by focusing its analysis on ownership, and not on the authority to control the production and disposal process. Control, however, is not a necessary factor in every case of arranger liability. Although the court finds the ownership issue to be debatable, the evidence in favor of the company's position is not strong enough to prove that the district court's finding was clearly erroneous. Additionally, the court declines to address the company's takings and due process challenges to the retroactive application of CERCLA in this case. The company's constitutional arguments are not ripe for consideration, and it has not adequately briefed the complexities involved in its constitutional challenge to CERCLA.

Prior decisions in this litigation are published at 10 ELR 20709, 15 ELR 20002, 21 ELR 20925, 22 ELR 21210, 24 ELR 20760, 25 ELR 20491, 27 ELR 21351, and 29 ELR 21060.]

Counsel for Plaintiffs
Sam Blesi
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Charles L. Moulton
Attorney General's Office
200 Tower Bldg.
323 Center St., Little Rock AR 72201
(501) 682-2007

Wollman, J. Before McMillian and Bye, JJ.