The federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") imposes strict liability upon four (4) categories of potentially responsible parties ("PRPs") for any release or threatened release of a hazardous substance into the environment. The four categories of liable parties under CERCLA are the current owner and operator of the hazardous waste facility; the past owner or operator of the hazardous waste facility; the person who "arranged for" disposal or treatment of a hazardous substance; and, in certain cases, transporters of hazardous substances.
Although it may be difficult to imagine that a contractor engaged in routine activities at a construction site, such as soil excavation, could be liable as a PRP under CERCLA, there are courts that have imposed just such liability. In a 1992 case, Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp., 976 F.2d 1338 (9th Cir. 1992), the owner of a contaminated site filed suit against an excavation contractor under CERCLA. The owner alleged that the excavator "transported" a "hazardous substance" by moving contaminated soil onto an uncontaminated area of the property. The court agreed and held the excavator responsible under CERCLA.
In 1993, a federal trial court in Virginia imposed liability upon a contractor which had performed construction and waste disposal work. The court determined that the contractor exercised actual physical control over the waste, and therefore imposed operator liability under CERCLA. North Miami v. Berger, 828 F.Supp. 401 (E.D. VA 1993). However, other courts have applied a more demanding test and have declined to impose CERCLA liability when a contractor had no "authority to control" the disposal of hazardous substances at the site.
In summary, a contractor's liability under CERCLA for routine construction activities likely will be determined by the specific facts of the contractor's level of control and authority over the site. Thus, if a contractor merely implements directions form another entity, such as the site owner, and has no authority to exercise control over the hazardous substance, then the contractor is likely to escape CERCLA liability. If, on the other hand, the contractor exercises sufficient control and authority over the removal, disposal or treatment of hazardous substances, then the specter of CERCLA liability may be very real indeed. Contractors should carefully scrutinize conditions at or near a construction site, conduct pre-project due diligence, whenever possible, and protect themselves with appropriate contractual language. In the immortal words of Henry de Bracton: "An ounce of prevention is worth a pound of cure."
This article is provided by Fraser Stryker for general informational purposes and is not intended to be and should not be construed as legal advice on any specific facts or circumstances. Please contact Stephen M. Bruckner at 402-978-5225 with any specific questions.