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United States v. D.S.C. of Newark Enterprises, Inc

ELR Citation: 43 ELR 20134
Nos. 09-2270, (D.N.J., 06/12/2013) (Cooper, J.)

A district court held, in an unpublished opinion, that a company that sold its facility, including equipment that contained asbestos dust and waste, may not be held liable as an owner or operator or as an arranger under CERCLA. Nearly 20 years after the company sold the site, the new owner abandoned it. EPA then filed suit against the new owner to recover response costs it incurred cleaning up the site, and the owner filed a third-party action against the company, arguing that the company should be held liable for asbestos dust left in containers when it sold the site. But the record fails to show that the company engaged in the improper disposal of asbestos dust. Containerizing asbestos dust for temporary storage does not constitute "disposal" under CERCLA. Where hazardous substances are held within a container for a purpose other than disposal, there is no release unless and until the container is abandoned. In addition, there are no genuine disputes of material fact with respect to whether there was disposal during the company's operations. Without a disposal during the time the company owned or operated the site, the company cannot be a former owner or operator as defined under CERCLA §107. Thus, the company cannot be liable for contribution under §113 as a former owner or operator of the site. Likewise, there are no facts indicative of an intent to arrange for the disposal of hazardous substances. The court, therefore, granted the company's motion for summary judgment.