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United States v. Aceto Agric. Chem. Corp.

ELR Citation: 18 ELR 21008
Nos. No. 87-21-W, 699 F. Supp. 1384/27 ERC 1388/(S.D. Iowa, 02/26/1988)

The court holds that pesticide ingredient manufacturers can be held liable under §107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs at a site owned by a "downstream" formulator. The language of the statute and the legislative history are unclear concerning whether makers of pesticide ingredients are liable as generators when they provide unrefined ingredients to other processors, who then create hazardous waste. Generator liability under CERCLA is not limited to those who actually make the decision of how to dispose of the hazardous substance. The legislative history indicates that issues of liability that are not resolved by the statute should be governed by relevant common law principles. Under tort law, a person who employs an independent contractor to perform abnormally dangerous work is liable for damage caused by the work. Therefore, defendants can be treated as parties responsible for the creation of hazardous waste products, so that the burden of ambiguity shifts to defendants to demonstrate specific congressional intent to shield them from liability.

The court also holds that defendant is not liable for response costs under §7003 of the Resource Conservation and Recovery Act. Although response costs are generally recoverable under §7003, plaintiffs have failed to allege that defendants had the authority to control how the formulator handled or disposed of toxic substances. Defendants' ownership of the materials fails to imply authority to control as a matter of law.

[Materials from this litigation are digested at ELR PEND. LIT. 65964.]

Counsel for Plaintiff
David Street
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2068

Counsel for Defendants
Theodore L. Garrett
1201 Pennsylvania Ave. NW, P.O. Box 7566, Washington DC 20044
(202) 662-6000