Amoco Oil Co. v. Borden, Inc.

No. 88-2860 (5th Cir. January 23, 1990)

The court clarifies its earlier decision, which held that the buyer of a phosphate fertilizer plant has established a prima facie case for liability in a private Comprehensive Environmental Response, Compensation, and Liability Act cost recovery action against the seller. The court rejects petitioner's argument that, whereas the Environmental Protection Agency's inactive tailings standards apply only to off-pile areas, the district court's finding of liability based on radiation at both the pile itself and the off-pile inactive tailings sites should be reversed. Specific liability questions will be resolved during the remedial phase of trial after the district court has determined which standards will govern the cleanup effort. Additionally, the court corrects an error in its earlier decision.

[The court's prior decision is published at 20 ELR 20281.]

Counsel for Plaintiff-Appellant
Edward Warren
Kirkland & Ellis
655 15th St. NW, Ste. 1200, Washington DC 20005
(202) 879-5000

Counsel for Defendant-Appellee
Thomas W. Hill
Emens, Hurd, Kegler & Ritter
Capitol Sq., 65 E. State St., Columbus OH 43215
(614) 462-5400

Before BROWN, REAVLEY, and HIGGINBOTHAM, Circuit Judges.

[20 ELR 20526]

PER CURIAM:

Our opinion issued December 8, 1989, 889 F.2d 664, is corrected and clarified as follows:

1) Borden correctly points out, contrary to statements in our opinion, that Amoco rather than Borden offered the "as is" purchase option, which was then accepted by Borden. Additionally, the jury found that Amoco knew or should have known of the property's radioactivity prior to April 16, 1978, whereas we stated that the jury only found that Amoco should have known.

2) Borden correctly points out that Subpart B of the Inactive Tailings Standards applies only to off-pile areas, and then argues that our opinion found it liable because radiation on both the pile and the off-pile sites exceeded Subpart B. Borden therefore requests that we reverse the finding of Borden's liability for the pile itself and limit remand to an allocation of costs for cleaning up the off-pile sites.

We decline to do so. Our opinion did not decide Borden's liability with respect to the areas separately. We considered the 114 acre tract and held that Borden was liable for response costs on the 114 acres because radioactivity on the property exceeded an applicable federal standard, namely Subpart B. This is consistent with the justification standard we established, which is met "if it is shown that any release violates . . . any applicable state or federal standard. . . ." 889 F.2d at 672. By deciding liability generally, we intended to leave for the district court the specific questions of appropriate cleanup and equitable apportionment of response costs. Those questions must be resolved during the remedial phase of trial after the district court has determined which standards will govern the cleanup efforts.

When the court proceeds, it must consider the EPA's new standards regulating the radioactivity of phosphogypsum piles as well as any other relevant state or federal standards. See 54 Fed. Reg. 51,654 (Dec. 15, 1989). After determining which standard(s) will meet CERCLA's remedial goals, the district court must ascertain the appropriate response costs. Response costs will be warranted only for cleaning up areas containing radioactivity exceeding the relevant standards. If the district court finds that remedial action is not required for the phosphogypsum pile, nothing in our opinion precludes the court from limiting cleanup efforts, and therefore response cost liability, to the off-pile areas.

IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause is hereby DENIED.