Just as tortfeasors take their victims as they find them, so PRPs take their hazardous waste sites as they find them. This rule has been around since the beginning of CERCLA and means that a party which arranges for the disposal of its waste at one location can be generally be held responsible for whatever response costs that waste generates, including environmental cleanup costs at a second location if that waste is transshipped without the knowledge of the PRP.
This issue recently arose in an “unpublished” CERCLA decision in New Jersey, Epec Polymers, Inc. v. NL Industries, Inc. There, a PRP had been dumping radiological waste in the Raritan River for many years. The river was dredged by the Army Corps of Engineers and the dredge spoils placed on wetlands across the river from the PRP’s operations. When the hazardous nature of the dredge spoils was discovered, the owner of the wetland property sued the PRP under a number of federal, state, and common law grounds, including Section 107(a) of CERCLA. The PRP moved to dismiss a number of the counts. As to the CERCLA cost-recovery count, the court rejected the arguments that arranging for the disposal of waste necessarily requires a party other than the PRP. The court also rejected the argument that a PRP could only be responsible for response costs incurred at the facility from which the release occurred.
The plaintiff alleged the PRP was liable under CERCLA as both a former owner of a facility and as someone who arranged for the disposal of hazardous substances. The PRP moved to dismiss the CERCLA Section 107 claim, saying it was neither an owner/operator of the facility nor an arranger. Alhtough the PRP argued that was not an owner or operator since it did not own or operate the wetlands, the court ruled that the “facility” at issue was the PRP’s property and that there had been a release from that facility. The court also rejected the PRP’s argument that arranger liability required essentially a contractual relationship between the PRP and some third party, holding that a person can arrange for the disposal of his own waste and thus be liable under CERCLA.
In the end, the court doesn’t discuss what limits might apply to a PRP’s liability when its waste is relocated by a third party. The case law seems to take the position that once a PRP has allowed its hazardous substances to be released into the environment, it is jointly and severally liable for any and all response costs incurred with respect to those substances. Hence, it seems unlikely in Epec Polymers that the PRP would have any success asserting a third-party defense under Section 107(b)(3) of CERCLA. This may not be as unfair a result as might first appear. Even where no third party defense is available, the PRP should have a contribution claim against the party that relocated the waste; thus, in Epec Polymers, the PRP might have CERCLA contribution rights against the Army Corps of Engineers who disposed of the dredge spoils in the wetlands.