[First Hit]

Datapages, Inc.Print this page

FRANCIS, MICHAEL A., Demetriou, Del Guercio, Springer, & Moyer, Los Angeles, CA

ABSTRACT: The Expanding Universe of Potentially Responsible Parties Under CERCLA

Recently the United States Court of Appeals, Ninth Circuit, ruled in Kaiser Aluminum and Chemical Corp. vs. Catellus Development Co. that a contractor involved in the excavation of a site who spreads Previous HitsoilNext Hit contaminated with a hazardous substance is a potentially responsible party for liability purposes under the Comprehensive Environmental Response Compensation Liability Act of 1980 as amended ("CERCLA").

This case involved property conveyed by a development company to the city of Richmond. The city hired a contractor to excavate the site and to prepare it for a housing project. In doing the excavation, the contractor reportedly spread Previous HitsoilNext Hit around the site which was later determined to have been contaminated. The city sued the developer for its cleanup costs under CERCLA. The developer in turn filed a third-party complaint against the excavation contractor for contribution under CERCLA, alleging that the spreading of the Previous HitsoilNext Hit constituted a disposal of a hazardous substance and that the excavation contractor was an "operator" and a "transporter" as those terms are defined by CERCLA.

The Ninth Circuit ruled that the excavation contractor was a potentially responsible party under CERCLA as an operator of the facility at the time hazardous substances were disposed because it had "the authority to control" the contamination at the time it occurred.

In addition, the Ninth Circuit also found the excavation contractor liable as a potentially responsible party as a transporter of hazardous substances to a site "selected by that person." In this case, the court found the excavation contractor moved Previous HitsoilNext Hit from one point to another, thus fulfilling the transportation requirement. The court stated that the transportation requirement was fulfilled even though the material was not moved to a different parcel. Just the mere movement of the Previous HitsoilNext Hit alone within the same parcel creates a new site for purposes of liability under CERCLA.

This decision by the Ninth Circuit has serious implications for any development of property which may be contaminated with hazardous substances. Moreover, this decision will likely impact environmental consultants and contractors because the decision could be read to mean that any movement of soils through the collection of Previous HitsoilTop samples or the remediation of property may cause an environmental contractor or remediation contractor to become liable as either an operator of the site or a transporter of a hazardous substance, thereby triggering CERCLA liability.

AAPG Search and Discovery Article #90992©1993 AAPG Pacific Section Meeting, Long Beach, California, May 5-7, 1993.