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CERCLA Liability for Disposal
of Innocuous Items

Liability under CERCLA is rather Draconian. Any person who "operates" a facility and pollutes it is liable, even if the person is "a saboteur who sneaks into the facility at night to discharge its poisons out of malice." United States v. Bestfoods, 524 U.S. 51, 65 (1998). Because of the nature of the statutory scheme, the discharge of even a minute amount of seemingly innocuous material can lead to liability. This is demonstrated by the following cases.

In Dartron Corp. v. Uniroyal Chem. Co., 917 F. Supp. 1173 (N.D. Ohio 1996), the plaintiff alleged that the defendant contaminated the property then sold it to plaintiff. Defendant counter-claimed, arguing that plaintiff was liable to it for certain CERCLA response costs. The court found defendant liable on several counts, but also found plaintiff partially responsible for the environmental damage to the property.

The court did this because "on at least one occasion," id. at 1183, plaintiff spilled "used oil" on the ground. As the court stated:

 

Spilling of a substance on to the ground qualifies as a 'disposal.' . . . A disposal of any detectable hazardous substance into the environment, regardless of amount, constitutes a release. HRW Systems, Inc. v. Washington Gas Light Co., 823 F. 8upp. 318, 340-41 (D. Md. 1993).

Dartton, 917 F. Supp. at 1183 (emphasis in original).

Further, the court noted that, under CERCLA, unadulterated petroleum products are not hazardous wastes. Id. (citing 42 U.S.C. 9601(14)). Thus, spilling "virgin" motor oil is not a violation of CERCLA. However, spilling used motor oil, which contains substances not found in virgin motor oil, is a violation. Id. (citing New York v. Exxon Corp., 766 F. Supp. 177 (S.D.N.Y. 1991); United States v. Western Processing Co., 761F. Supp. 713 (W.D. Wash. 1991)).

With this case (and those cited therein), a spillage of used motor oil, in a minute amount, can lead to CERCLA liability. This is not a unique result.

In Nutrasweet Co. v. X-L Engineering Corp., 933 F. Supp. 1409 (N.D. Ill. 1996), an employee of defendant was observed emptying a mop bucket near the edge of defendant's property on a large number of occasions. The employee was mentally handicapped, and dumped the mop bucket without the knowledge of the defendant's president and majority shareholder. Plaintiff alleged that substances in the bucket polluted its property after they migrated onto its property. Plaintiff spent more than $560,000 in cleaning up its property. The court found the defendant's president/majority shareholder personally liable under CERCLA, as well as the entity.

Liability was not predicated upon the president as an "owner" of the property, since a limited partnership owned the property. Further, "operator" liability was not imposed, as the president did not participate or have knowledge of the bucket dumps. However, "arranger" liability was imposed on the president, since he arranged for the disposal of hazardous substances through his control over the substances. This is so, since CERCLA "arranger" liability is strict. Id. at 1418-19.

The court then set the case for trial, for damages to be determined by a jury. All of this, because a handicapped man emptied a mop bucket.

Similar results often occur where paint and paint cans are involved, along with paint removing solvents. For example, in Premium Plastics v. LaSalle National Bank, 904 F. Supp. 809 (N.D. Ill. 1995), CERCLA liability attached where a company, inside its building, varnished the floor three times a year with varnish and benzene, and spilled paint on the floor while moving containers of it, which was cleaned up with toluene-soaked rags. The toxic materials then seeped through the concrete foundation and contaminated the soil beneath.

In United States v. Carr, 880 F.2d 1550 (2d Cir. 1989), the court upheld a criminal conviction under CERCLA against Carr. His crime? As a civilian employee at an army base in New York, he directed workers to dispose of paint cans in a man-made pit on the base's firing range. After doing so, he failed to report this action to the appropriate federal officials, in violation of 42 U.S.C. 9603(b)(3). Thus, not only does the dumping of paint cans constitute a CERCLA violation, the failure to implicate yourself is a crime.

Similarly, in United States v. Goodner Brothers Aircraft, Inc., 966 F.2d 380 (8th Cir. 1992), the court upheld a criminal conviction under CERCLA for the release of hazardous substances into the environment without a permit. The defendant used solvents to remove paint from aircraft prior to repainting them. The old paint was placed in barrels and buried on a farm. The paint leaked and contaminated the surrounding soil.

Finally, in ABD Assocs. v. American Tobacco Co., 1995 U.D. Dist. LEXIS 11094 (D. N.C. 1995), the court ruled that where lead-based paint is used on the interior and exterior of a building, a "disposal" (under CERCLA) of a hazardous substance has occurred, since the paint could enter the environment or be emitted to the air.

As all of these cases reveal, CERCLA liability can arise in seemingly innocuous situations.


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