A Company Can Be Held Liable As An Owner Under CERCLA Even Though It Does Not Own The Contaminated Property

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In EPEC Polymers, Inc. v. NL Industries Inc., Civ. Action No. 12-3842 (D.N.J. May 24, 2013), defendant NL Industries Inc. owned property on one side of the Raritan River, where it produced and discharged waste to the river.  Plaintiff EPEC Polymers, Inc. owned property on the opposite side of the river.  The U.S. Army Corps of Engineer had dredged the river and dredging spoils were placed on EPEC’s property.  These dredged spoils contained, in part, NL’s waste.  EPEC spent over $2 million investigating the contamination on its property.

EPEC sued NL under several statutory and common law theories of recovery seeking to recoup its cleanup costs from NL.  One of EPEC’s claims was that under CERCLA’s owner/operator liability section, NL was liable.  That provision imposes liability on any person who owned or operated the facility at the time of the disposal of a hazardous substance.

NL argued that it cannot be held liable as an owner/operator because it did not own the site at which the cleanup is being conducted.  Specifically, NL stated that its property “is not the facility at which hazardous waste came to be located or where EPEC allegedly has incurred ‘response costs’ for which it now seeks recovery under CERCLA.”  Therefore, NL reasoned that it could not be held liable as an owner or operator of the facility under CERCLA’s owner/operator liability provision.

The Court rejected this argument and broadly interpreted the definition of facility holding that NL’s property is the “facility” for the purposes of owner/operator liability.  Thus, NL can be held liable as an owner/operator under CERCLA even though it did not own or operate the property at which the contamination is being remedied.  The Court also held that NL can be liable as an arranger under CERCLA’s liability provisions for having arranged for the dumping of its hazardous waste into the river.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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