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SENT SY:Xerox Te + ecop ier 7020 v' 7-92 3 12P�4 ,.► WI . 1992 'Thursday, July 2, 199? Daily Appellate Repoli 9203 a rule is ownership or operation did not cause the contamination. and operation of the property, Such a test would emalive Concededly, the owner/operator defendant does not potentially have proven the absence of contamination eprove COY the burden of the negative label,"negligent actor," when a givers defendant separated from the property, This Thcowner/operator defendant,however,less a"culpable thereby enabling that defendant to prove he or she did I worse risk creator' than the negligent actor. Indeed, to refuse not cause the contamination.The plaintiffs,on the other :rnativa to acknowledge this basic fact is to ignore the decision hand, did not have this option. At best, the plaintiffs Congress made when it created a strict Iiability rather could have tested the property at the time they merely than a negligence statute.Specifically,the fault principle purchased it. Had the plaintiffs conducted such a test nus act, of negligence theory has no relevance to a RCRA claim. and found contamination, they would have had direct +�icward Third,the failure to utilize alternative liability will evidence to use at the first stage of the trial. The g upon make It impossible for plaintiffs to prevail in this case plaintiffs, however, would still have no evidence as to in tort, (and other consecutive owner and operator cases like it). when the Contamination occurred.In a related argument, ,rf duty fourth, even though it wit! be impossible for the the plaintiffs' presence on the property when the plaintiffs to prevail without 11ternative liability,at least contamination was found,years after rise transfer of the cam' one,If not more,of the owner'! calor defendants is the does not laic the laintitY`s aintiffs � property, g 11 greater access to only responsible tortfeasor.'Tile potential impossibility of this evidence regarding when the contamination occumd. is isand claim does not itself justify Shifting the burden. When The existence of greater knowledge simply has not been onandcomcctod with the CongrGj3ionW de5ii'o to implomont 1hown, Bron ji;�pam 4trf1p 4' �jumFnl {�I salt in cleanup of contamination as quickly and efficiently as defendants did not get to inspect the piping and the ic legal possible,however,the impossibility of claims warrants tanks, defendants have not shown how the addition of tion in additional measures to Insure that responsibilities for this evidence would assist in the deo mination of why c scict clean-up are shared by several,rather than few,owners the contamination occurred.Concededly,the inspection an act and operaWn.Indeed,the refusal to shift the burden and of the piping system and the tanks might be relevant to A cease distribute responsibility for clean-up would directly the question of how the contamination occurred. But tership contravene the curnsnt polity of implementation of the how the contamination occurred is irrelevant 7hue 3o this statute,which prefers sharing the costs of contamination defendants are the past owners and operators of the gas ation's Clean-up. Indeed, Congress expressed its views on the station,and thus these defendants are responsible for the Meritor significance of compensation when it made RCRA a leakage regardless of how it occurred. As a result, the Ince is strict liability statute. This objective, and thus owner/operator defendants are certtdniy in no worse a on the substantive justice, will be regularly subverted and situation with respect to evidence than the plaintiffs. couru undermined if the burden of proof is not shifted to V case, defendants in CofIRCUtive ownership rases such as this (c) BURDEN SHU-T1NO one.$ Moreover, because of the impossibility of these itional types of claims, refusing to shift the burden of proof If the plaintiffs prove the poressnce of strict would free Owner/operator defendants of liability even contamination prior to the Uwsfer of the property to the cutive if a plaintiff proves all of the contamination was present plaintiffs, the plaintiffs will.have proven, (1) that the prior to the tra sfer of the property to the plaintiff_Such plaintiffs did not cause the contamination and (2) their enable a result is illogical. Under such a rule, a plaintiff can prima facie case. If plaintiffs prove their Prime facie tbility prove that one or more defendants is fully responsible case, the Court will proceed to the second stage of the a that and yet the plaintiff isdenied any recovery simply trial where each of the ownerloperator defendants will it his because the property changed hands on several be required to do exactly what plaintiffs were required hitrm. occasions. Consequently, equity requires a shifting of to do: to prove gasoline did not contaminate the land �eping the burden. Such a shifting of the burden of proof while each of them individually either owned or I, the removes the possibility that plaintiffs will be without a operated the property. In essence, the burden of proof remedy even thcu�h the Court knows that the will be shifted to the defendants to apportion damages f strict contributor is before it, between themselves. Sec. M;.Elhaney L. Eli it t is, Fifth, the strict nubility plaintiff should not be in & Co., 564 F.Supp.265,0 (D,S.D, 19831983) (removing ` Ws, a worse position than the negligence plaintiff. from plaintiff the burden of identifying the source of the I the Defendants' construction would effectively eliminate DES which allegedly injured her, and shifting to each anon, alternative liability from all strict liability cases, thus defendant the burden of'proving it was not the source of occur depriving strict liability plaintiffs of a legal toot the UFS to which plaintiff was exposed). Defendants recognized and utilized in tort law since Summers. Cannot,however,shift liability back to plaintiffs.If it is strict Iltdlred, the only policy jusdfcalion for not applying concluded that the pWriliffs did not eave of the goad alternadve liability to a strict liability case is that strict contamination, the defendants as a group must be. lht: The liability is harsh enough already.This"harshness" does cause. As a result, the Court will require each S the not justify depriving plaintiffs of a genuinely ncc4W owner/opmtor defendant to prove no contamination mots evidtntiary too], occurred during his or her period of ownership or .rotor Sixth,the ownerlopuator defendants had the best operation in order to shift liability to the other f the opportunity to gather evidonce that would have proven owner/operntar defendants, erred when the contamination occurred.Each defendant could the have tested the sol! at the end of his or her ownership (d) T't-M RULE