Jump to Navigation
Jump to Content

B.F. Goodrich Co. v. Murtha

ELR Citation: 21 ELR 20777
Nos. Nos. N-87-52 (PCD) et al., 754 F. Supp. 960/32 ERC 1487/(D. Conn., 01/08/1991) Summary judgment motion on mun. liability denied

The court rules that municipalities are not exempt from liability under §107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for disposal of municipal solid waste. Parties to a settlement concerning hazardous waste site cleanup costs brought a third-party action against municipalities that had allegedly arranged for disposal of hazardous substances at the sites. The court holds that the municipalities are liable if the municipal solid waste contains hazardous substances or qualifies as hazardous waste under CERCLA §101(14). The court holds that municipal solid waste is not automatically excluded from CERCLA liability simply because household waste is exempt under the Resource Conservation and Recovery Act (RCRA). The Environmental Protection Agency (EPA) acknowledges in its Municipal Settlement Policy, ELR Admin. Materials 35226, that municipal solid waste may contain hazardous substances from household and nonhousehold sources, and that potentially responsible parties, including municipalities, will be notified under CERCLA. EPA's policy, coupled with CERCLA's legislative history and the lack of an explicit exemption of municipal solid waste from CERCLA liability, strongly suggests that Congress did not intend to exclude municipal solid waste from CERCLA or to extend a cloak of immunity for municipalities under RCRA. The court thus holds that to the extent any municipality disposed of or arranged for the disposal of a hazardous substance and there is a release or threatened release of the substance at a site, the municipality may be held liable under CERCLA §107(a)(3).

The court next holds that the municipalities are not entitled to summary judgment on the issue of their liability for CERCLA cleanup costs. The court holds that a question of fact exists concerning whether the waste disposed of by the municipalities contained hazardous substances under CERCLA §101(14). The court notes that municipal liability will be limited to a share based on the amount municipalities contributed to the damage, and therefore will not violate Congress' intent by shifting cleanup costs from the industrial polluter to the taxpayer. The court rejects the municipalities' argument that municipal solid waste is not hazardous under CERCLA because its disposal is regulated by RCRA and state law. Finally, the court holds that the municipalities are not exempt under CERCLA §101(20) as common or contract carriers that merely deliver hazardous substances to a disposal facility. Even if the municipalities did not transport municipal solid waste to the disposal site, they are nevertheless responsible under CERCLA §107(a)(3) if they arranged for disposal or treatment.

[Pleadings in this case are digested at ELR Pend. Lit. 66094, 66099, and 66104. A related decision is published at 19 ELR 20357.]

Counsel for Plaintiff
Louis R. Pepe, David E. Rosengren
Pepe & Hazard
Goodwin Square, Hartford CT 06103
(203) 522-5175

Counsel for Defendants
H. Michael Semler
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

William A. Butler
Dickstein, Shapiro & Morin
2101 L St. NW, Washington DC 20037
(202) 785-9700