Containerport Group, Inc. v. American Financial Group, Inc.

No. C2-95-1262 (128 F. Supp. 2d 470) (S.D. Ohio January 16, 2001)

ELR Digest

The court holds that an Ohio property owner could seek Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 113 contribution but not CERCLA § 107 cost recovery from the previous owner of the property, and that the previous owner was not entitled to summary judgment on the subject of its liability. The court first holds that the current property owner is not entitled to summary judgment on the issue of the previous owner's CERCLA liability. The current owner presented no affirmative evidence indicating that hazardous materials were placed on the property while the previous owner owned the property. Moreover, the possibility exists that the hazardous substances on the property were disposed of while the current owner was using the site for storage. More importantly, from the time that the current owner ceased storage on the site in 1989 until site assessments were conducted in 1993 and 1994, anyone could have freely accessed the property to dispose of the hazardous material in question.

The court next holds that the current owner cannot seek CERCLA § 107 cost recovery because it cannot assert the innocent landowner defense. The current owner became aware of the contamination of the property in 1993 or 1994, but the record shows that since that time, the property has sat vacant and is completely accessible. The current owner has done nothing to secure the site or make any effort to clean up the allegedly hazardous substances. Therefore, because the current owner has failed to show that it exercised due care with respect to the hazardous substances, the innocent landowner defense fails. Consequently, since a potentially responsible party cannot bring a CERCLA § 107 cost recovery action, the current owner is limited to a CERCLA § 113 contribution action against the previous owner. The court then holds that the previous owner is not entitled to summary judgment on the issue of its potential CERCLA § 113 liability. The previous owner claimed that the current owner failed to establish a prima facie case because the current owner's response costs are not necessary or consistent with the national contingency plan as required by CERCLA § 107. However, all that is needed at summary judgment is for the current owner to show that it incurred at least one recoverable cost in response to the release of hazardous substances. The current owner has done this because investigatory costs, such as the 1993 and 1994 assessments of the property, fall within the definition of response costs. In addition, because CERCLA contains no quantitative requirement, the fact that the concentrations of metals on the property may fall below standards promulgated by the state environmental agency is completely irrelevant to the issue of the previous owner's liability.

The full text of this decision is available from ELR (14 pp., ELR Order No. L-327).

Counsel for Plaintiff
Daniel F. Gourash
Porter, Wright, Morris & Arthur
925 Euclid Ave., Ste. 1700, Cleveland OH 44115
(216) 443-9000

Counsel for Defendant
Pierce E. Cunningham
Pierce E. Cunningham Company
312 Walnut St., Cincinnati OH 45202
(513) 361-0100

[31 ELR 20433]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]