ELR Citation: ELR 20462
No(s). 86-Z-369 (D. Colo. Aug 26, 1994)

The court holds that a railroad company that owned part of the Broderick Wood Products Superfund site is not jointly and severally liable for all cleanup costs at the site. The court first holds that the railroad company is liable as a successor under §107(a)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The company's predecessor owned and held title to the parcel of land in question, the predecessor owned the parcel at the time the hazardous material was disposed of, and the railroad company was the successor. The court next holds that the railroad company failed to prove the elements of CERCLA §107(b)(3)'s innocent landowner defense. The defense is also unavailable to the company because the predecessor had entered into a contractual relationship to rent the land to another company, and the predecessor knew of the disposal of hazardous waste on its land during the period of the contract. The court holds that it is appropriate to determine divisibility of harm in the early stages of litigation. The court next holds that the railroad company is not jointly and severally liable for all cleanup costs at the site, because there is a reasonable basis for dividing liability. Although the environmental harm at the site is not chronologically divisible, it is geographically divisible. There are two separate areas of groundwater and soil contamination at the site: One emanating from a pond impoundment area located on the parcel of land in question, and another emanating from a processing plant area to the east of that parcel. Because neither the railroad company nor its predecessor ever owned the land on which the processing plant stood, and because that plume has neither merged with the pond plume nor migrated onto the parcel of land in question, the railroad company is not liable for the plume emanating from the processing plant area. The court holds that the railroad company is jointly and severally liable for groundwater and soil contamination on the parcel of land in question.

Counsel for Plaintiff
William G. Pharo, Ass't U.S. Attorney
U.S. Attorney's Office
1200 Federal Office Bldg.
Drawer 3615, Denver CO 80294
(303) 844-3400

Counsel for Defendants
Brooke Jackson, John F. Shepherd
Holland & Hart
555 17th St., Ste. 2900, P.O. Box 8749, Denver CO 80201
(303) 295-8000