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Liability - Cradle to Grave Concerns

The following information, provided by Barnes & Thornburg law firm, should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and readers are urged to consult their own attorney on any specific legal questions they may have concerning their situation.

Potential CERCLA Liability

U.S. EPA states that e-wastes can contain such hazardous materials as lead, mercury, and hexavalent chromium. If improperly handled, these materials can be released into the environment. U.S. EPA notes that mercury from electronics has been cited as a leading source in municipal waste. According to Dell, flat-panel displays have eliminated the use of lead, however, they include a small amount of mercury as part of the backlighting. A typical 17-inch computer monitor contains approximately 2 lbs. of lead; larger monitors may contain up to 10 lbs. For more information, see Exporting Harm – The High-Tech Trashing of Asia (Feb. 2002) at www.svtc.org/cleancc/pubs/technotrash.pdf

Who should be concerned? State and local governments.

Elements of a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Claim:

• The site is a “facility” within the meaning of CERCLA;
• A release of a hazardous substance for the site has occurred;
• The release or threatened release has resulted in response costs being incurred consistent with the “national contingency plan”; and
• Defendant is a “covered person” under § 107(a) of CERCLA.
  42 U.S.C. § 9607 (a); Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 325 (7th Cir. 1994); Environmental Trans. Sys. Inc. v. Ensco, Inc., 969 F.2d 503, 506 (7th Cir. 1992).

“Facility” means:

• Any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, OR
• Any building, structure, installation, equipment, pipe or
• Any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel. 42 U.S.C. § 9601(a).

“Hazardous substance” = “RCRA hazardous waste”

• Defined at 42 U.S.C. § 9601(14).
• Covers a staggering array of substances.
• Only substances specifically excluded are natural gas and oil.
• Pursuant to 9601 (14)(B), EPA has designated over 700 hazardous substances (See 40 C.F.R. § 302.4).
• Does not impose any quantitative requirement or concentration level – instead substance must simply fall within one of the designated categories.
• Includes municipal solid waste if that waste contains a hazardous substance, found in any amount, that is listed in any of the subsections of this definition.
  Goodrich Corp. v. Town of Middlesbury, 311 F.3d 154 (2nd Cir. 2002).

CERCLA § 113(f) provides: “Any person may seek contribution from any other person who is liable or potentially liable under § 9607(a) … In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” (The successful) Contribution claims against the municipalities were posited on the presence of hazardous substances, as constituent parts of consumer and industrial products, in the municipal solid waste that the municipalities dumped into the landfills.

CERCLA defines a “covered person” as:

(1) the owner or operator of a facility;
(2) any person who at the time of the disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of;
(3) any person, who by contract, agreement or otherwise arranged for the disposal or treatment of hazardous substances at the facility; and
(4) persons who transported hazardous substances to thefacility.
42 U.S.C. 9607(a)(1)-(4); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1497 (11th Cir. 1996).

 

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