United States v. Agway, Inc.

No. 1:99-CV-708 (FJS/GJD) (193 F. Supp. 2d 545) (UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK March 28, 2002)

ELR Digest

The court holds that a company is jointly and severally liable for costs incurred by the United States at the Friedrichsohn's Cooperage, Inc. site in Waterford, New York. The company, which was previously found liable as an arranger under the Comprehensive Environmental Response, Compensation, and Liability Act, argued that its liability should be limited by the common-law doctrine of divisibility and apportionment so that it is only responsible for that part of the U.S. response costs equal to its relative "volumetric contribution" of barrels to the site. The court first holds, however, that the company failed to meet its burden of proof with respect to its divisibility defense. Although in some instances, volume might constitute a reasonable basis for apportionment, this is not such a case. There is no dispute that the present case involves the presence of a single harm in which the chemicals contained in the company's barrels became commingled with the chemicals contained in the barrels of others who shipped barrels to the site. Thus, despite the company's arguments to the contrary, the relative toxicity, migratory potential, degree of migration, and "synergistic capacities" of the hazardous substances deposited at the site are important to the determination of whether the harm is divisible. Moreover, the company presented no evidence about these factors. Accordingly, the court granted the U.S. motion for partial summary judgment as to the company's liability and found the company jointly and severally liable for $ 2,020,238.19 in U.S. response and enforcement costs.

The full text of this decision is available from ELR (13 pp., ELR Order No. L-495).

Counsel for Plaintiff
Patricia A. McKenna
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Philip H. Gitlen
Whiteman, Osterman & Hanna
One Commercial Plaza, Ste. 1900, Albany NY 12260
(518) 487-7600

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]