Nice try, but...

Second Circuit rules that first responder is not a PRP under CERCLA

The Second Circuit handed down a Superfund decision in AMW Materials Testing v. Town of Babylon yesterday, rejecting the claim of an aerospace metal finishing company that--get this--the local fire department was liable for a share of the cleanup costs from a release under CERCLA that occurred when their Amityville, New York facility was destroyed in a catastrophic fire ten years ago.

The claim--which shows off plaintiff's counsel's issue-spotting skills--was that the fire department became an "operator" under CERCLA § 101(20)(A)(ii) for the purposes of section 107 liability, under the Supreme Court's broad definition of that term from United States v. Best Foods, 524 U.S. 51, 66 (1998) (“someone who directs the workings of, manages, or conducts the affairs of a facility”). The Supremes went broad in an attempt to flesh out a not-very-helpful statutory definition (i.e. "any person owning or operating such a facility," 42 U.S.C. 9601(20(A)(ii)), and did include, as an example, "a saboteur who sneaks into the facility at night to discharge its poisons out of malice." 524 U.S. at 65. But the bit that plaintiff's counsel overlooked was that the Supremes also specified that, to be an "operator," a party must exercise control over the hazardous materials at issue. Id. at 66-67 ("an operator must manage, direct, or conduct operations specifically related to pollution, that is operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations."). The Second Circuit panel noted that although "defendants controlled firefighting operations at the AMW site, the hazardous materials at issue were stored in a burning building to which firefighters could not gain safe entry." (Slip op. at 11).

For good measure, the panel went on to rule that CERCLA § 107(d)(2)'s exemption for state or local government first responders insulated the fire department from liability except in the case of gross negligence in their response. The plaintiffs had challenged the applicability of the first-responder exemption, arguing that it applied only to CERCLA § 113 contribution actions, but not the CERCLA § 107 cost-recovery provision, but the Second Circuit rejected this as baseless and nonsensical. (Slip op. at 16).

So there you have it folks. Next time you are storing a lot of nasty chemicals that catch fire, don't think you can get out of the cleanup just because the fire department shows up to prevent a greater catastrophe.