RECENT FEDERAL DECISIONS

January 2010

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Following Jury Verdict on Common Law Counts, District Court Determines the Source of PCE Release and Response Costs under CERCLA
Walnut Creek Manor v. Mayhew Center, LLC, ___F. Supp.2d___

Following a jury verdict in favor of Walnut Creek Manor (WCM) as against Mayhew Center, LLC (Mayhew) on the negligence, ultrahazardous activity, trespass, and nuisance claims, the District Court adjudicated the remaining non-jury statutory claims under the federal Comprehensive Environmental Response, the Compensation and Liability Act (CERCLA) and California Hazardous Substance Account Act (HSAA). These remaining bench issues consist of the source of the release of tetrachoroethylene (PCE), and whether that release caused either party to incur response costs that were necessary and consistent with the National Contingency Plan. Although the jury determined that the source of the PCE released at the WCM property was the Mayhew property, the District Court was not bound by that jury determination. The District Court did independently come to that same conclusion. The District Court held that evidence suggested that PCE contamination existed in far greater concentrations on the Mayhew side of the property line, and gradually moved away from this point of release. However, as no CERCLA cleanup plan had been created, the District Court could not determine the amount of CERCLA response costs. Finally, the District Court rejected Mayhew’s contribution claim.