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B.F. Goodrich Co. v. Murtha

ELR Citation: 22 ELR 20683
Nos. No. 91-7450, 958 F.2d 1192/34 ERC 1401/(2d Cir., 03/12/1992) Aff'd

The court upholds a district court decision that municipalities are not exempt from liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for the disposal of municipal solid waste (MSW) that contains hazardous substances. The court initially holds that municipalities are not exempt from CERCLA liability merely because they act in their sovereign capacity when making arrangements for the disposal of MSW containing hazardous substances. To hold otherwise would create an unwarranted break in CERCLA's chain of responsibility. The court then holds that MSW is not exempt from CERCLA's definition of hazardous substances. MSW need not be listed by name instead of its constituent components to fall within CERCLA's purview, and the Act's silence on MSW is not evidence that it is excluded from the definition of hazardous substances. For a substance to be hazardous under CERCLA, it need only be listed under the table of hazardous substances in CERCLA's implementing regulations or designated as hazardous under any one of the four environmental statutes expressly listed in CERCLA's definition of hazardous substance. The court observes that the definition makes no distinction based on industrial, commercial, municipal, or household waste streams, and does not depend on the concentration of the hazardous substances. The court next holds that the household waste exemption under the Resource Conservation and Recovery Act (RCRA) does not limit CERCLA's definition of hazardous substance. Congress could have placed an exemption for household waste explicitly in CERCLA's definition of hazardous waste, as it did with petroleum and natural gas. To construe the RCRA household waste exemption as applying to CERCLA would frustrate CERCLA's broad remedial purposes and unjustifiably expand the scope of RCRA's regulations. The court observes that RCRA is preventative, while CERCLA is curative. The court further notes that an exemption of household wastes from CERCLA notification requirements does not mean that household waste is exempt from CERCLA in its entirety. The court next holds that CERCLA's legislative history does not reveal that Congress intended an exemption for municipalities. The municipalities' reliance on statements by one representative who attempted to incorporate the RCRA household waste exemption into the toxic spill cleanup amendments is misplaced, because the representative's attempt ultimately failed. Finally, the court holds that municipal liability is consistent with the unequivocal and clearly expressed policy of the U.S. Environmental Protection Agency (EPA) that CERCLA contains no exemption for MSW. EPA's Interim Municipal Settlement Policy, ELR ADMIN. MATERIALS 35225, which is intended to provide guidance to EPA regional offices on how to exercise their enforcement discretion, merely indicates that EPA does not intend to use its limited resources to pursue enforcement actions against municipalities generating or transporting MSW, unless the total commercial hazardous substances are insignificant compared to MSW. Moreover, the settlement policy expressly states that municipal wastes may fall within the CERCLA liability framework.

[The district court's decision is published at 21 ELR 20777. Pleadings and briefs in this case are published at ELR PEND. LIT. 66094, 66099, 66104, 66147, 66157, and 66161.]

Counsel for Appellants
William A. Butler, Patricia R. McCubbin, Angus E. Crane
Dickstein, Shapiro & Morin
2101 L St. NW, Washington DC 20037
(202) 785-9700

Counsel for Appellees
Louis R. Pepe
Pepe & Hazard
Goodwin Sq., Hartford CT 06103
(203) 522-5175

Deming E. Sherman
Edwards & Angell
130 Bellevue Ave., Providence RI 02840
(401) 849-7800

Before Walker and McLaughlin, JJ.