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Jastram v. Phillips Petroleum Co.

ELR Citation: 24 ELR 21157
Nos. No. 92-0763, 844 F. Supp. 1139/39 ERC 1375/(E.D. La., 01/27/1994)

The court holds that oil and energy companies in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 private cost recovery action are not liable for the costs of cleaning up brine or saltwater because those are not hazardous substances under CERCLA §101(14). The court first holds that the definition of a "hazardous substance" in CERCLA §101(14) does not encompass brine or saltwater. Under CERCLA §107(a), private parties, such as oil and energy companies, can only be held liable for cleanup of releases or threats of release when hazardous substances are involved. The court notes a contrary position taken in the U.S. Environmental Protection Agency (EPA) Office of Solid Waste and Emergency Response's Directive 9832.1 (1983), which states that EPA intends to hold private parties liable under CERCLA §107 for releases or threats of release of pollutants or contaminants that may present an imminent and substantial endangerment to the public health or welfare, even though these pollutants may not be designated or defined as hazardous substances. However, the EPA Administrator has not exercised discretion under CERCLA §102 to designate brine or saltwater as a hazardous substance. The court declines to allow the Agency memorandum to preempt the statutory language and holds that the oil and energy companies are not liable for cleanup costs associated with brine or saltwater. The court then denies summary judgment regarding cleanup costs for pit or production sludge, because sludge is not exempt from §101(14)'s definition of a hazardous substance, and genuine issues of material fact remain as to whether lead levels in the sludge rendered it hazardous and whether the cleanup substantially complied with the National Contingency Plan.

Counsel for Plaintiffs
Charles B. Johnson
Coleman, Johnson & Artigues
321 St. Charles Ave., 10th Fl., New Orleans LA 70130
(504) 586-1979

Counsel for Defendants
Charles D. Marshall Jr., David N. Schell
Milling, Benson, Woodward, Hillyer, Pierson & Miller
909 Poydras St., Ste. 2300, New Orleans LA 70112
(504) 569-7000