Durham Manufacturing Co. v. Merriam Manufacturing Co.

No. 3:99CV02583 GLG (128 F. Supp. 2d 97) (D. Conn. January 9, 2001)

ELR Digest

The court holds that a manufacturer seeking to recover response costs it incurred at a Connecticut site cannot bring a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107 cost recovery action against other potentially responsible parties (PRPs), but that the manufacturer can seek cost recovery under a state hazardous waste statute. The court first holds that the manufacturer, as an operator of a Superfund site, is a PRP, and, therefore, cannot bring a CERCLA § 107 cost recovery action against another PRP unless it can assert an affirmative defense. The manufacturer attempted to assert the innocent landowner defense by arguing that the site is divisible into separate facilities and, as such, the manufacturer is innocent with regard to portions of the site. The overwhelming authority, however, rejects the innocent landowner defense as to portions of the site. Moreover, the manufacturer provides no facts supporting divisibility, and the manufacturer failed to claim that a third party released the hazardous substances at issue, as is required to qualify for the defense. The court next holds, however, that the manufacturer can seek reasonable recovery costs under Connecticut General Statute § 22a-452. CERCLA does not preempt state statutes where, as here, the state-law claim does not conflict with CERCLA's settlement scheme. Further, allowing the state-law claim would not defeat or impede a purpose of CERCLA, and the manufacturer could not recover damages under state law that are also recoverable under CERCLA.

The full text of this decision is available from ELR (7 pp., ELR Order No. L-335).

Counsel for Plaintiff
Richard M. Fil
Robinson & Cole
280 Trumbull St., Hartford CT 06103
(860) 275-8200

Counsel for Defendants
Amy Souchuns
Shipman & Goodwin
One American Row
Hartford CT 06103
(860) 251-5000

[31 ELR 20436]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]