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, liqueed natura l gas, sy nthetic
gas usable for fuel, and mixtures of such synthetic gas and natural gas from the denition 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 rening 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 dened 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 dene “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” sucient 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 sucient “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 qualied 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
Burlington N. & Santa Fe Ry
. Co. v. United S
tates, 556 U.S. 599
, 612 n.8 (2009); see 42 U.S.C. §9601
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).
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).
tate v. Staco, Inc., 684 F. Supp. 822
, 834 (D. Vt. 1988), vacated in part by
1989 WL 225428 (D. Vt. Apr. 20, 1989).
. 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.,
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.