Advanced Technology Corp. v. Eliskim, Inc.

No. 1:96CV755 (96 F. Supp. 2d 715) (N.D. Ohio May 3, 2000)

ELR Digest

The court denies a corporation's motion to reconsider a ruling that disputed issues of material fact exist as to whether the corporation's neighbor can claim an innocent landowner defense, which would allow the neighbor to pursue a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107(a) cost recovery action against the corporation. The neighbor began demolition of a building on its property, but the demolition released lead, which had come from the corporation's property, into the air. The U.S. Environmental Protection Agency (EPA) entered an administrative order of consent (AOC) with the neighbor for remediation of the contamination. The neighbor subsequently filed CERCLA §§ 107(a) and 113(f)(1) claims against the corporation. The corporation argued that the neighbor could not bring a CERCLA § 107(a) claim because it was a potentially responsible party that released hazardous materials into the environment and, thus, could not qualify for the innocent landowner defense.

The court first holds that the neighbor is not precluded from asserting a cost recovery action via the innocent landowner defense. The corporation failed to cite a single case wherein a release occurs when a third party unknowingly commits an action that exposes hazardous substances that had been previously released onto the property by a third party. Moreover, there are disputed facts as to whether the neighbor knew or should have known of the contamination. Nevertheless, with regard to the court's order, the neighbor had no reason to believe that its reasonable use of the property would expose hazardous materials that the corporation placed there. Thus, the neighbor is not precluded from asserting a cost recovery action via the innocent landowner defense. In addition, an AOC that the corporation signed with EPA does not provide protection from the neighbor's contribution action because the corporation's AOC did not clearly indicate that it provided protection from parties, such as the neighbor, who had already incurred response costs.

The full text of this decision is available from ELR (5 pp., ELR Order No. L-225).

Counsel for Plaintiffs
Carter E. Strang
Arter & Hadden
1100 Huntington Bldg.
925 Euclid Ave., Cleveland OH 44115
(216) 696-1100

Counsel for Defendants
David G. Ries
Thorp, Reed & Armstrong
One Riverfront Center
20 Stanwix St., Pittsburgh PA 15222
(412) 394-7711

[30 ELR 20574]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]