Defenses and Exceptions to Liability

• Author: Allison Rumsey/Michael Daneker
• Pages: 23-32

Page 23

II. Defenses and Exceptions to Liability

A. Statutory Defenses

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “Superfund ”)

§107(a) liability is “notwithstanding any other provision or rule of law and subject only to the defenses set

forth in the statute.” Section 107(b) of CERCLA sets forth three armative defenses: act of God, act of

war, and act of third party.1 Proving these defenses can be challenging. A defendant must show that the

release of the hazardous substance was caused solely by an act of God, war, or third party.2 Further, all of

these defenses are narrowly construed.3 And because CERCLA generally imposes strict liability, defenses

based on an absence of negligence or on the use of due care are unavailing,4 although these considerations

may be relevant to the allocation of liability.5

e act of God defense6 has been invoked with little success. is lack of success is hardly surprising, as

CERCLA denes “act of God” as “an unanticipated grave natural disaster or other natural phenomenon of

an exceptional, inevitable, and irresistible character, the eects of which could not have been prevented or

avoided by the exercise of due care or foresight.”7 Accordingly, courts have rejected the act of God defense

in cases of winter storms,8 unprecedented cold spells,9 hurrica nes,10 and heavy rains and oods.11 Defen-

dants invoking the act of God defense have fared better when pairing it with other armative defenses.12

Similarly, the act of war defense13typically has been met with little success.14 However, this defense became

newly relevant in the wake of the September 11, 2001, terrorist attacks by Al-Qaeda in New York City. In

1. 42 U.S.C. §9607(b).

2. Id.

3. Westfarm Assocs., LP v. Wash. Suburban Sanitary Comm’n, 66 F.3d 669, 677 (4th Cir. 1995) (noting CERCLA’s “narrow defenses”); Gen.

Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d 281, 285 (2d Cir. 1992); N.Y. State Elec. & Gas Corp. v. FirstEnergy Corp., 808 F. Supp.

2d 417, 487 (N.D.N.Y. 2011).

4. See, e.g., United States v. Capital Tax Corp., 545 F.3d 525, 530 (7th Cir. 2008) (“CERCLA is strict liability statute.”); Canadyne-Ga. Corp.

v. NationsBank, NA, 183 F.3d 1269, 1275 (11th Cir. 1999) (“CERCLA does not allocate liability based on fault or negligence; it is a strict

liability statute.”); United States v. Kramer, 757 F. Supp. 397, 419 (D.N.J. 1991); United States v. Dickerson, 640 F. Supp. 448(D. Md. 1986).

5. United States v. Twp. of Brighton, 153 F.3d 307, 318 (6th Cir. 1998); Control Data Corp. v. SCSC Corp., 53 F.3d 930, 936 (8th Cir. 1995);

aler v. PRB Metal Prods., Inc., 815 F. Supp. 99 (E.D.N.Y. 1993); Kramer, 757 F. Supp. at 422; United States v. Conservation Chem. Co.,

619 F. Supp. 162 (W.D. Mo. 1985).

6. 42 U.S.C. §9607(b)(1).

7. Id. §9601(1).

8. United States v. Sterling Centrecorp, Inc., No. 2:08-CV-02556, 2011 WL 6130891, at *5–6 (E.D. Cal. Dec. 8, 2011) (partial collapse of log

dam during winter storm was not act of God because it was neither exceptional nor utterly unforeseeable).

9. United States v. Barrier Indus., Inc., 991 F. Supp. 678, 679–80 (S.D.N.Y. 1998) (“unprecedented cold spell” did not fall within the act of God

defense, but even if it did, there was no evidence that the hazardous release or threat of release was caused solely by the cold spell).

10. United States v. Alcan Aluminum Corp., 892 F. Supp. 648, 658 (M.D. Pa. 1995) (hurricane did not fall within act of God defense because

it was not the sole cause of the hazardous release, the eects could have been mitigated by the exercise of due care, and hurricane was not the

sort of “exceptional” natural phenomenon to which the defense applied).

11. United States v. Amtreco, Inc., 809 F. Supp. 959, 969 (M.D. Ga. 1992) (ood was not act of God because it occurred after cleanup was already

in progress); United States v. Stringfellow, 661 F. Supp. 1053, 1061 (C.D. Cal. 1987) (heavy but foreseeable rains are not contemplated by

the term “act of God”).

12. United States v. Poly-Carb, Inc., 951 F. Supp. 1518, 1531 (D. Nev. 1996) (rejecting defendant’s act of God defense standing alone but nding

that, in combination with allegations regarding the acts of a third party, evidence of act of God defense created material disputed issue of fact).

Section 107(b) specically permits armative defenses to be combined with one another. 42 U.S.C. §9607(b)(4).

13. 42 U.S.C. §9607(b)(2).

14. For example, the Ninth Circuit in United States v. Shell Oil Co., 294 F.3d 1045 (9th Cir. 2002), rejected the act of war defense invoked by oil

companies in a suit regarding the disposal of hazardous substances created by the production of aviation fuel during World War II. Although

the government exercised signicant control over the means of aviation fuel production during a time of war, the defense was to be construed

narrowly, and the government did not compel the companies to dispose of their waste in any particular manner. Id. at 1062.