CERCLA Liability

• Author: Allison Rumsey/Michael Daneker
• Pages: 1-22

Page 1

I. CERCLA Liability

A. Who Is Liable Under CERCLA?

Liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980

(CERCLA) is strict; breach of care is not an element of a claim. e elements of CERCLA liability generally are

1. a “release or threatened release” of “haza rdous substances” into the environment;

2. release from a “facility”;

3. the “release or threatened release” caused the incurrence of “response costs”; and

4. the defendant is a “covered person.”1

B. A Release or Threatened Release

CERCLA §101(22) denes “release” a s any “spilling, leaking, pumping, pouring, emitting, emptying,

discharging, injecting, escaping, leaching, dumping, or d isposing into the environment (including the

abandonment or discarding of barrels, containers, and other closed receptacles containing any hazard-

ous substa nce or pollutant or contaminant).”2 Courts have held that the term “release” is broad enough

to include the abandonment of closed containers and hazardous substances being carried on clothes or

transported by the wind.3 Moreover, the release need not necessa rily reach the “outdoors” immediately to

constitute a release into the environment. Releases include threatened releases.4 At least one court has held

that CERCLA requires only a showing of a release or threatened release and does not require that an actual

threat or dangerous level of haza rdous waste be present.5

CERCLA denes “hazardous substance” to include “a va riety of chemica ls and toxins including those

designated by the U.S. Environmental Protection Agency (EPA) as a ir pollutants, water pollutants, and

solid wastes” under the Clean Water Act, the Resource Conservation and Recovery Act (RCRA), the Clean

1. A fth element may apply in private cost-recovery suits. e majority of courts have held that private plaintis bringing a CERCLA cost

recovery suit, unlike the Environmental Protection Agency, must prove as an element of their prima facie case that the response costs at issue

were necessary and consistent with the National Contingency Plan. EPA’s costs must also be necessary and consistent, but it does not bear the

burden of proving this. See Cnty. Line Inv. Co. v. Tinney, 933 F.2d 1508 (10th Cir. 1991); 3550 Stevens Creek Assocs. v. Barclays Bank of

Cal., 915 F.2d 1355 (9th Cir. 1990); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir. 1989); Dedham Water Co. v. Cumberland Farms

Dairy, Inc., 889 F.2d 1146 (1st Cir. 1989), decision claried, 901 F.2d 3 (1st Cir. 1990). Other courts have held that such proof is a component

of private plaintis’ proof of damages, rather than their prima facie case. See Envtl. Transp. Sys., Inc. v. ENSCO, Inc., 763 F. Supp. 384, 387

(C.D. Ill. 1991), a’d, 969 F.2d 503 (7th Cir. 1992); City of N. Miami, Fla. v. Berger, 828 F. Supp. 401, 408–09 (E.D. Va. 1993).

2. 42 U.S.C. §9601(22).

3. See United States v. Medley, 13 Chem. Waste Litig. Rep. 143, 146 (D.S.C. 1986) (“e emitting or release of volatile organics into the ambient

air and the storage of hazardous substances in deteriorating or leaking drums and unlined lagoons at the Medley Farm site clearly constituted

a ‘release’ or ‘substantial threat’ of release of hazardous substances into the environment.”); Kowalski v. Goodyear Tire & Rubber Co., 841 F.

Supp. 104, 108 (W.D.N.Y. 1994) (release by being carried on clothing); United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 1149 (D.

Ariz. 1984) (nding threat of release where asbestos bers “lying on the surface of the soil . . . could be released in a light wind”); Amoco Oil

Co. v. Borden, Inc., 889 F.2d 664, 669 (5th Cir. 1989); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1152 (1st Cir.

1989) (“e courts have construed CERCLA’s denition of ‘release’ broadly.”); New York v. Shore Realty Corp., 759 F.2d 1032, 1045 (2d

Cir. 1985) (“We hold that the leaking tanks and pipelines, the continuing leaching and seepage from the earlier spills, and the leaking drums

all constitute ‘releases.’”).

4. See Vermont v. Staco, Inc., 684 F. Supp. 822, 832–33 (D. Vt. 1988), vacated in part, No. 86-190, 1989 WL 225428 (D. Vt. Apr. 20, 1989)

(“threatened release” includes presence of mercury in septic systems with capability of leaching into groundwater).

5. See Johnson v. James Langley Operating Co., 226 F.3d 957 (8th Cir. 2000).

Page 2 Superfund Deskbook

Air Act, or the Toxic Substances Control Act.6 e EPA may also designate any “element, compound, mix-

ture, solution, or substance” as a “hazardous substance” under CERCLA §102 because it may present “sub-

stantial danger to the public health or welfa re or the environment” when relea sed into the environment.7

CERCLA expressly excludes petroleum, natural gas, natural gas liquids, liqueed natura l gas, sy nthetic

gas usable for fuel, and mixtures of such synthetic gas and natural gas from the denition of “hazardous

substance.”8 e petroleum exclusion “removes from the coverage of CERCLA substances that are inherent

in petroleum or added to it during the rening process, but not ha zardous substances that are added to,

or mixed with, petroleum during or after its use.”9 Even a de minimis amount of a haz ardous substance

contaminating petroleum ca n lead to liability under CERCLA.10

C. From a Facility

“Facility” is broadly dened in CERCLA §101(9) to include “any site or area where a hazardous substance

has been deposited, stored, disposed of, or placed, or otherwise come to be located”—in other words

essentially “every conceivable place where ha zardous substances c an be found.”11 To show that an area is a

“facility,” the plainti need only show that a hazardous substance under CERCLA is placed there or has

otherwise come to be located there. “Facility,” however, does not include any consumer product in con-

sumer use or any vessel. e Seventh Circu it has found that motor vehicles can be “consumer products in

consumer use” and thus owners/operators of personal motor vehicles are exempt from CERCLA’s response-

cost provisions.12 Where a contaminated property may be naturally divided into multiple parts, a court

may nd multiple facilities to be present.13

D. Leading to the Incurrence of Response Costs

To bring a lawsuit, a party must have incu rred response costs. CERCLA does not dene “response costs.”

Courts have tended to construe the term broadly, holding that it includes, for example, a variet y of inves-

tigatory cost s.14 e term is not, however, without limits. e Eighth Circuit has held that when a party

has not personally spent any money investigating or remediating contamination on his or her property,

the party may not have incurred “necessar y costs of response” sucient to maintain claims for recovery of

costs.15 e ird Circuit has held that the costs of water sampling and laboratory fees did not meet the test

of incurred response costs because they were incurred two years after the lawsuit was led and not before.16

In this case, salaries of employees who purportedly devoted over 4,000 hours responding to contamination

on the property were not sucient “response costs” because the Department of Natural Resources did not

maintain adequate records of t hose expenses.17 Additionally, when counsel advanced money for sampling,

laboratory ana lyses, and site visits (and at least some of such costs were incurred prior to the start of the

litigation), the ird Circuit held such costs only qualied as incurred response costs if the Depa rtment

of Natural Resources had a legal obligation to reimburse those expenses.18 To be clear, however, as long as

6. Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 612 n.8 (2009); see 42 U.S.C. §9601(14).

7. 42 U.S.C. §9602(a).

8. Id. §9601(14).

9. Members of Beede Site Grp. v. Fed. Home Loan Mortg. Corp., C.A. No. 09-370-WES, 2013 WL 4778570, at *3 (D.N.H. Sept. 5, 2013).

10. See id. at *4 (nding that when plainti’s expert concluded waste oil would typically contain hazardous substances, defendants had not met

burden of showing that waste oil did not contain contaminants, but that when plainti had made no initial showing that oil in the soil was

contaminated with hazardous substances, the exclusion applied).

11. United States v. Sterling Centrecorp, Inc., No. 2:08-cv-02556-MCE JFM, 2011 WL 6130887, at *4 (E.D. Cal. Dec. 8, 2011).

12. Emergency Servs. Billing Corp. v. Allstate Ins., 668 F.3d 459 (7th Cir. 2012).

13. See Alprof Realty, LLC v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, No. 09-cv-5190 (CBA) (RER),

2012 WL 4049800, at *8 (E.D.N.Y. Sept. 13, 2012).

14. See State v. Staco, Inc., 684 F. Supp. 822, 834 (D. Vt. 1988), vacated in part by 1989 WL 225428 (D. Vt. Apr. 20, 1989).

15. See Trimble v. ASARCO, Inc., 232 F.3d 946, 958 (8th Cir. 2000) (“[T]he mere possibility, even the certainty, that an obligation to pay will

arise in the future does not establish that a cost has been incurred.”), abrogated on other grounds by Exxon Mobil Corp. v. Allapattah Servs.,

Inc., 545 U.S. 546 (2005).

16. Because the plainti had not incurred any response costs when it led the complaint, it did not meet the elements necessar y for a cause of

action. See U.S. V.I. Dep’t of Planning & Natural Res. v. St. Croix Renaissance Grp., LLLP, No. 11-2265, 2013 WL 2420865, at *1 (3d Cir.

June 5, 2013).

17. See id.

18. See id.