While we tend to think of a CERCLA “facility” as the real property where environmental contaminants have come to be located, it is important to remember that CERCLA’s definition of “facility” is actually much broader than that and can serve to open the door to “Potentially Responsible Parties” not considered in your initial cost recovery analysis.
Pursuant to CERCLA, the owner of a facility from which hazardous substances have been released is liable for the costs of responding to the release. Two recent CERCLA cases involving motor vehicles illustrate how CERCLA’s broad definition of “facility” expands CERCLA “owner” liability beyond ownership of contaminated real property to ownership of equipment and vehicles from which contaminates have been released. These cases also provide us with an answer to the question: Is your vehicle a CERCLA facility? And the answer is: It depends.
In Emergency Billing Services Corporation v. Allstate Insurance Co. WL 313578 (7th Cir. Feb. 7, 2012), the 7th Circuit Court of Appeals reviewed a district court’s dismissal of a CERCLA cost recovery action brought by a municipal billing agent against the insurers of vehicles involved in car accidents to which a volunteer fire department responded. The billing agent alleged that the cars involved in the accidents were CERCLA facilities and that the fire department was entitled to be reimbursed for its costs of responding to a release or threatened release from these “facilities.” Although the definition of a CERCLA “facility” expressly includes a “motor vehicle,” the insurers argued that the vehicles involved in the accidents fell outside of CERCLA’s reach. Specifically, the insurers argued that the automobiles were excepted from the definition of “facility” by an exclusion for “any consumer product in consumer use.” The Seventh Circuit agreed and found that these personally owned automobiles were in personal use at the time of the accidents and therefore did not constitute CERCLA facilities.
Not to be outdone, the billing agent apparently found a more favorable set of facts in the case of Emergency Services Billing Corporation v. Vitran Express, Inc., 2011 U.S. Dist. LEXIS 140891 (Dec. 7, 2011). In this case the billing agent filed a CERCLA cost recovery action on behalf of another volunteer fire department that had responded to a tractor-trailer leaking a corrosive liquid disinfectant. The district court’s opinion states that the operator of the tractor-trailer was delivering a load of textbooks to a high school when it became clear that the truck was leaking fluid. It seems that along with the text books, the truck was also carrying 300 gallons of a hazardous substance in a large plastic container. The operator relocated the truck away from the high school to an area where the leaking fluid threatened a nearby waterway. The town’s volunteer fire department was dispatched and later the owner of the truck was invoiced for the costs incurred in the town’s response. The invoice was never paid and suit was filed. The truck owner and operator motioned the court to dismiss the case because the truck was a “consumer product in consumer use” and thus not a “facility” under CERCLA. The court disagreed and denied defendants’ motion, noting that the tractor-trailer was a commercial vehicle that was transporting a corrosive liquid and thus met the definition of a CERCLA “facility.”
These cases, in addition to providing us with examples of creative municipal billing, also serve to remind us that in evaluating a cost recovery claim it is important to work with your counsel to determine whether CERCLA liability can attach to “owners” of equipment or vehicles that have released hazardous substances at your cleanup site, even if those “owners” have never had an interest in the real property now contaminated.