Transporter Liability Under CERCLA

Ronald M. Eddy and Diana Terry Riendl

Editors' Summary: CERCLA continues to be one of the most complex and convoluted of the federal environmental statutes. Many legal battles have been waged over the scope of liability of potentially responsible parties. Although the courts have agreed on some of the issues concerning liability, most of the cases to date have focused on the liability of generators, owners, and operators. Yet transporters of hazardous waste are also vital links in a framework that envisions oversight of hazardous waste "from cradle to grave," and are subject to some of the same liability as others covered by CERCLA. This article examines that transporter liability. The authors discuss the cases that have directly or indirectly addressed transporters' liability under CERCLA, and examine the present status of that liability. They discuss the relevance of joint and several liability and causation as those principles have been applied to generators and owners or operators, and analyze the provisions of CERCLA that were written specifically with transporters in mind. Observing that some of these issues concerning transporters' CERCLA liability are as yet unresolved, the authors suggest lines of argument that transporters can use to limit their potential liability.

Mr. Eddy and Ms. Riendl are attorneys with the law firm of Sherman & Howard in Denver, Colorado. The views expressed in this article are the authors' and do not necessarily reflect those of the firm or its clients. The authors gratefully acknowledge the assistance of Carrie Rodgers in preparing this article.

[16 ELR 10244]

Each year, millions of gallons of hazardous substances are transported to disposal and treatment facilities throughout the nation. The transporters who carry those substances are confronted with myriad federal, state, and local statutes, regulations, and ordinances¹ that govern virtually every phase of their operations and impose sanctions for noncompliance.² Of all the laws which regulate transporters' activities, perhaps none has the potential to impose more onerous and overpowering liability than the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).³

When CERCLA was enacted in 1980, Congress targeted transporters, along with three other groups of persons,⁴ to bear the costs of cleaning up the nation's hazardous substances sites. It was apparent from the face of the statute that potentially devastating liability could be imposed on transporters and other parties for response costs and natural resource damages resulting from releases of hazardous substances, with the upper limit of liability set at $50 million in certain instances.⁵ Few anticipated, however, that CERCLA's often ambiguous provisions⁶ [16 ELR 10245] would be consistently applied by the courts infavor of governmental plaintiffs, thus greatly easing the burden on those plaintiffs of establishing liability.

CERCLA's liability scheme is particularly unfair to transporters in two respects. First, the Act imposes liability without regard to culpable conduct, so that a carrier who acts as an innocent conduit of hazardous substances between the point of generation and the point of treatment or disposal is liable to the same degree as a midnight dumper. Further, transporter liability is not limited solely to releases during transport, but extends to releases which occur from treatment and disposal facilities long after the substances have left the control of the transporter.⁷

This article is intended to inform transporters of their potential liability under CERCLA and to identify strategies that they can use to limit that liability. The statutory underpinnings of CERCLA liability are discussed, along with the doctrines of strict liability and joint and several liability which have been superimposed on the statute by judicial decisions. Also explored are the nature and scope of liability for releases which occur after delivery to a disposal or treatment facility, the issue of whether causation is an element of liability under CERCLA, third-party defenses, and what effect, if any, the transporter's selection of the facility has on liability. Finally, the article briefly examines a transporter's liability for releases of hazardous substances during transport.

Background

Transporter liability usually arises under one of two basic scenarios. In the first instance, a transporter may be liable for releases which occur during transport. The second and more common situation, which is the primary focus of this article, occurs where there is a release or threat of a release of hazardous substances from a treatment or disposal facility, such as a landfill. Upon discovery of the release or threat of release, the United States Environmental Protection Agency (EPA)⁸ will first determine whether a response action is appropriate. If so, EPA will attempt to identify and notify the potentially responsible parties (the past and present owners and operators of the facility, the generators of the hazardous substances deposited there, and the transporters responsible for delivery of hazardous substances to the site) that they may be liable under CERCLA § 107 for the costs of cleaning up the site. EPA may then sue the responsible parties to force a cleanup, perform the cleanup itself with monies from the Superfund⁹ and seek reimbursement from the responsible parties later, or allow the responsible parties to conduct their own site cleanup.

As a potentially responsible party, a transporter faces tremendous potential liability. Although he may have delivered hazardous substances to a facility without incident, the transporter may be liable, under the doctrine of joint and several liability, for the entire costs of cleanup at the facility as well as for natural resource damages.¹⁰ The legal fees alone for defending a suit for cleanup costs and damages can be enormous.¹¹

Statutory Provisions

The basis for transporter liability is set forth in § 107(a), CERCLA's general liability provision. As an owner or operator of a hazardous substance facility (the transport vehicle), a transporter is potentially responsible for releases which occur during transport. Transporters are also potentially liable for releases from disposal or treatment facilities which have received the hazardous substances carried by the transporter. Section 107(a) states, in relevant part:

(a) notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b)¹² of this section —

[16 ELR 10246]

(1) the owner and operator of a vessel … or a facility¹³ [and]….

(4) any person who accepts or accepted any hazardous substances for transport¹⁴ to disposal or treatment facilities or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for —

(A) all costs of removal or remedial action incurred by the United States government or a state not inconsistent with the National Contingency Plan;

(B) any other necessary costs of response incurred by any person consistent with the National Contingency Plan; and

(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such release.¹⁵

In addition to § 107(a), a transporter's potential liability as an owner or operator is set out in § 101(20)(B), which provides, in relevant part:

[In] the case of a hazardous substance which has been accepted for transportation by a common or contract carrier and except as provided in section 9607(a)(3) or (4) of this title, (i) the term "owner or operator" shall mean such common carrier or other bona fide for hire carrier acting as an independent contractor during such transportation.¹⁶

Section 101(20)(C), on the other hand, may relieve transporters of liability for certain releases which occur after hazardous substances have been delivered to their destination. That section states:

[In] the case of a hazardous substance which has been delivered by a common or contract carrier to a disposal or treatment facility and except as provided in section 9607(a)(3) or (4) of this title (i) the term "owner or operator" shall not include such common or contract carrier, and (ii) such common or contract carrier shall not be considered to have caused or contributed to any release at such disposal or treatment facility resulting from circumstances or conditions beyond its control.¹⁷

The applicability of subsection (20)(C) has yet to be decided by any court. Its interplay with the general transporter liability provision, § 107(a)(4), will be discussed later in this article.

Releases from Treatment or Disposal Facilities

Section 107(a)(4) deals exclusively with transporter liability for releases which occur after delivery to treatment or disposal facilities or sites. As discussed more fully below, the issues of strict liability, joint and several liability, and retroactivity regarding post-delivery releases appear, for the most part, to have been resolved. The issue of whether causation is a required element of transporter liability, however, is more troublesome and may still be open to question.

Strict Liability

It is now virtually settled that CERCLA imposes strict liability, at least for response costs, on generators of hazardous substances and owners and operators of hazardous substances facilities.¹⁸ The few courts which have addressed the standard of liability for transporters have held, not surprisingly, that strict liability applies to them as well.

In United States v. Northeastern Pharmaceutical & Chemical Co.,¹⁹ for example, a case involving transporter and generator liability, the district court had little difficulty deciding that the standard of liability to be applied under § 107(a) of CERCLA (as well as under §§ 104 and 106) is strict liability. In support of its holding, the court looked primarily to § 101(32), which defines "liability" under CERCLA to be the standard of liability which obtains under § 311 of the Federal Water Pollution Control Act.²⁰ Since § 311 has consistently been construed as a strict liability provision, the court concluded that CERCLA must also be read to impose strict liability on transporters and generators.²¹

Similarly, in City of Philadelphia v. Stepan Chemical [16 ELR 10247] Co.,²² the United States District Court for the Eastern District of Pennsylvania noted that CERCLA imposes strict liability upon all persons listed in § 107(a), including transporters.

Causation

In the ongoing battle between the federal government and CERCLA defendants over the nature and scope of § 107(a) liability, one of the most hotly contested issues has been whether causation must be proven as an element of liability.²³ The majority of courts which have addressed the issue, primarily in the context of generator or owner/operator liability, have concluded that causation is not an element of liability under CERCLA. The controversy does not appear to have been completely resolved, however. Although a clear minority, some courts seem to require a specific showing of causation. Further, a portion of CERCLA yet to be interpreted by the courts, which applies solely to transporters, appears to require a showing of causation in order to establish transporter liability in certain instances.

The courts have not yet addressed in detail the issue of whether causation is an element of transporter liability under § 107(a)(4). The few courts which have considered the issue have done so without any in-depth analysis. The causation issue has, however, been carefully dissected by the courts in regard to generator liability. The rationale of those courts appears to be equally applicable to transporters.²⁴ The cases that do address transporter liability, as well as the seminal generator causation cases, are briefly discussed below.

Causation in the Generator Context. In analyzing causation with respect to generator liability, the courts have first looked to the express language of § 107(a) and then to the accompanying legislative history. The majority position, based on a literal reading of § 107(a)(3), is that specific proof of causation is not required. A plaintiff must only establish that:

1. The generator's hazardous substances were shipped to the facility in issue;

2. The generator's hazardous substances, or substances like those of the generator, are present at the facility;

3. There is a release or threat of release of a or any hazardous substance at the facility; and

4. Response costs were incurred as a result of the release or threat of release.²⁵

Some courts have concluded that CERCLA "presumes" a contributory causal relationship between each of the hazardous substances deposited at a site and the hazardous condition found there. That presumption may be rebutted by proving the applicability of the § 107(b) defenses (i.e., acts of God, war, and third parties).²⁶

The courts have then looked to CERCLA's legislative history for support of the proposition that causation is not an element of liability. H.R. 7020 and the earlier versions of S. 1480, both predecessors to CERCLA in the 96th Congress, contained language providing that a person must have "caused or contributed" to a release of hazardous substances before liability could attach under CERCLA. According to the House report on H.R. 7020, the "cause or contribute" language was intended to require a plaintiff to prove "a causal or contributory nexus between the acts of the defendant and the conditions which necessitated [a] response action."²⁷ The report further states that "the usual common law principles of causation, including those of proximate causation, should govern the determination of whether a defendant 'caused or contributed' to the release or threatened release."²⁸ These causation provisions were, however, deleted from CERCLA prior to its enactment. The courts have construed this deletion to be evidence of congressional intent that causation need not be proven as an element of liability under CERCLA.²⁹

Causation in the Transporter Context. Adopting a similar approach for transporters, liability would attach, [16 ELR 10248] based on a strict reading of § 107(a)(4), if a plaintiff could establish that:

1. The transporter accepted and transported hazardous substances to the facility in issue and that facility was selected by the transporter;

2. The substances transported, or similar hazardous substances, are present at the facility;³⁰

3. There is a release or threat of release of a or any hazardous substance at the facility; and

4. Response costs were incurred as a result of the release or threat of release.³¹

In United States v. South Carolina Recycling & Disposal, Inc. (South Carolina Recycling II),³² the court briefly addressed the issue of transporter liability. The court looked to the statutory language of CERCLA and stated:

To establish transporter liability under section 107(a)(4) of CERCLA, the government must prove that a person accepted hazardous substances for transport to a disposal or treatment facility selected by that person. 42 U.S.C. § 9607(a)(4).³³

Although the court did not specifically address the other requirements for liability discussed above — presence of the transported materials (or similar materials) at the site, selection of the site by the transporter, release of a hazardous substance, and incurrence of response costs — the court's findings of fact indicate that these elements were also present in the case.³⁴

A recent case involving transporter liability, however, appears to indicate that specific proof of causation is required. In United States v. Ottati & Goss, Inc. (Ottati I),³⁵ the court was called upon to decide whether a transporter was liable under CERCLA for the transportation of drums of diatomaceous earth to a landfill. The transporter defendant admitted that it had transported drums to the site. It denied liability, however, on the grounds that its drums had been removed from the site prior to commencement of government cleanup activities, and that, alternatively, even if they were still present, they did not contain "hazardous substances" within the meaning of the Act.

Although the court in Ottati I did not clearly explicate its reasoning, it appeared to conclude that causation is required in order to establish liability.³⁶ In granting the transporter defendant's motion to dismiss, the court stated:

The court finds that the defendant did not dispose of any hazardous substances which is evidenced by the record and by the court's determining as a trier of fact the credibility of the witnesses. The defendant did not cause or contribute to cause the disposal of any hazardous wastes of diatomaceous earth on site which exceeded the thresholds established by EPA for hazardous waste.³⁷

The import of Ottati I, however, is questionable, based not only on the skeletal reasoning of the court in that case but also on the court's subsequent holding in United States v. Ottati & Goss, Inc. (Ottati II).³⁸ In Ottati II, the same judge who authored the opinion in Ottati I again addressed the issue of causation, this time in regard to generators. In the latter decision, however, the court appeared to align itself, from a practical standpoint, with the majority position, as typified by Wade and South Carolina Recycling I that a defendant's specific hazardous substance need not be linked with the plaintiff's incurrence of response costs.³⁹

The seemingly opposite holdings in Ottati I and Ottati II may evidence the court's intent to establish different causation requirements for transporters and generators. No [16 ELR 10249] such intent, however, was expressly stated in either case. More likely, the general causation requirements set out in Ottati II, a better reasoned decision than Ottati I, apply not only to generators but also to transporters. When viewed in the light of Ottati, II, the court's holding in Ottati I appears to be based on its factual finding that the federal government failed to establish that the substances transported to the site by defendants were hazardous. Therefore, since the government did not prove the minimal causation requirements,⁴⁰ the court dismissed defendant transporters from the litigation.⁴¹

Causation: A Minority Viewpoint. A minority of courts, in the context of transporter liability as well as generator liability, have held that proof of causation is required before liability can attach under § 107(a). This view was espoused in one of the earliest cases to address the causation issue, Ohio ex rel. Brown v. Georgeoff,⁴² and in one of the most recent, City of New York v. Exxon Corp.⁴³

In Georgeoff, a case involving transporter liability, the court concluded that causation is an element of liability under CERCLA. Defendant transporters argued that Ohio's suit should be dismissed because it sought to impose upon them liability for acts performed prior to CERCLA's enactment. In analyzing whether Ohio was seeking to apply CERCLA retroactively, the court discussed causation as an element of § 107 liability. It examined two major issues in this regard: first, whether general tort theory would recognize intervening cause as a bar to a finding of liability where a transporter delivered a product without incident to a facility he selected; and, second, if tort theory would bar such a finding, whether the § 107(b) limitation of defenses would change this result.⁴⁴

As to the first issue, the court concluded that § 107 is analogous to the tort doctrine of strict liability, and that the concept of intervening cause therefore applies to CERCLA actions. In addressing the second issue, the court stated:

This leaves Ohio's argument that the § 9607(b) limitation of defenses changes this result. That section, however, is inapplicable. Intervening cause does not act as a defense; rather, it acts to negate causation, an element of the § 9607 cause of action. The § 9607(b) limitation of defenses, therefore, does not apply.⁴⁵

The Georgeoff court did not rely on the express language of § 107, nor did it cite any supporting authority in making this finding.

The court's finding is stated broadly and appears to encompass all persons identified by § 107(a) and not just transporters. To date, however, no other courts have cited Georgeoff for the proposition that causation is an element of § 107 liability.

The causation issue was recently addressed in City of New York v. Exxon Corp.⁴⁶ In Exxon, generator defendant Alcan Aluminum Corp. (Alcan) moved to dismiss the city's CERCLA claims on the grounds that its wastes were not hazardous substances within the meaning of the Act. The court denied Alcan's motion, concluding that the city had alleged a sufficient basis for its claims. The court then stated:

In order for Alcan to be liable, the City must prove that the wastes did in fact contain such hazardous substances, and that the presence of those hazardous substances in the City's landfills caused or will cause the City to incur response costs within the meaning of the Act.⁴⁷

Although it did not elaborate, the court appeared to interpret CERCLA to require that a plaintiff establish a causal link between a particular defendant's waste and the incurrence of response costs by the plaintiff.⁴⁸

Causation and § 101(20)(C). The issue of causation in regard to transporter liability is further complicated by a provision of CERCLA yet to be interpreted by the courts. Section 101(20)(C) suggests that proof of causation is required in certain instances. That section states, "except as provided in section 9607(a)(3) or (4)," where a common or contract carrier⁴⁹ has delivered hazardous substances to a disposal or treatment facility, the carrier shall not be considered to be an owner or operator and "shall not be considered to have caused or contributed to any release at such disposal or treatment facility resulting from circumstances or conditions beyond its control."⁵⁰

[16 ELR 10250]

The applicability of § 101(20)(C) is difficult to assess. Two interpretations of that section are possible, neither of which is fully satisfactory.

The first possibility is that Congress simply intended in § 101(20)(C) to establish that once a transporter has successfully delivered his cargo to a treatment or disposal facility he no longer can be held liable, as an owner or operator, for post-delivery releases, but remains potentially liable as a transporter under § 107(a)(4). This interpretation, however, would seemingly make § 101(20)(C) superfluous. Section 107(a)(1) alone dictates that a transporter, whose sole involvement is the transportation of materials to a treatment or disposal facility, cannot be liable as an owner or operator for post-delivery releases. This is true simply because he does not have an ownership or operational interest in the treatment or disposal facility, the key elements of liability under § 107(a)(1).⁵¹

The second alternative is that Congress intended § 101(20)(C)(ii) to provide special consideration for transporters and to require proof of causation in order to establish transporter liability for post-delivery releases. As discussed below, CERCLA's legislative history supports this interpretation.

Subsection 20(C) appears to be Congress' response to the concerns of the trucking industry that their liability could extend ad infinitum rather than being limited solely to the time of transport. Those concerns were articulated in a letter from the American Trucking Associations, Inc., to the chairman of the Senate Committee on Commerce, Science, and Transportation that was read into the record during a Senate debate on the CERCLA bill.⁵² Subsequent to that time, subparagraph (C)(ii) was added to the legislation. The causation language in subparagraph (C)(ii), in fact, is nearly identical to language proposed by the American Trucking Associations.

This interpretation, however, is not without its own problems. The "except as provided" language in subsection (20)(C) creates an apparent conflict between that subsection and § 107(a). The phrase "except as provided in section 9607(a)(3) and (4)" appears to dictate that § 107 govern whenever its provisions conflict with § 101(20)(C). If § 107 is interpreted not to require proof of causation as an element of liability (the position taken by the majority of courts), then that section virtually negates the efficacy of the causation language in § 101(20)(C)(ii) as a possible limitation on liability, and frustrates the apparent congressional intent behind (20)(C). Conversely, if § 107 is interpreted to require a showing of causation, the "cause or contribute" language of § 101(20)(C) could be given effect and would serve to describe the scope of liability for transporters; this interpretation would, however, render the "except as provided" language superfluous, and would apparently defeat the congressional intent, whatever it may have been, in including that phrase. Thus, neither reading makes complete sense.⁵³

The proper interpretation and application of § 101(20)(C) will remain uncertain pending resolution by the courts. Until then, transporters may well use that subsection in support of an argument that proof of causation is required in order to establish transporter liability for post-delivery releases from treatment and storage facilities.

Joint and Several Liability/Retroactivity

CERCLA has been interpreted to allow, but not to require, courts to impose joint and several liability.⁵⁴ In instances where a defendant can establish divisibility of harm, apportionment, rather than joint and several liability, may be appropriate.⁵⁵ A few courts have concluded that apportionment may be appropriate even where the defendant cannot prove the extent of his contribution to the harm.⁵⁶ [16 ELR 10251] While the issue of joint and several liability has arisen primarily in the context of generators, owners, and operators, the rationale of those courts appears to be equally applicable to transporters.⁵⁷

The appropriate method for allocating costs between defendants continues to be controversial. Some defendants have asserted that liability should be divided on the basis of volumetric contribution while others have argued that the relative toxicity and the migratory potential of the hazardous substances should be considered. One court has apportioned liability among generators on the basis of the number of barrels sent to the site.⁵⁸

Whether apportionment based on volume or toxicity would be most advantageous to a transporter will depend on the particular facts of the case. Any apportionment scheme, however, should be carefully structured to avoid double recovery by the plaintiff from generators, transporters, and persons who own or operate the treatment or disposal facility. As part of any settlement negotiations regarding apportionment, transporters who have acted solely as a conduit for hazardous materials should strongly assert that, since their relationship to the hazardous substances is far less substantial than that of the generators who created the substances and the owners and operators of facilities who are responsible for their safe disposal and treatment, they should bear a smaller share of liability for costs and damages than those other parties.

The courts have consistently ruled that transporters, like generators, owners, and operators, may be liable for response costs incurred after the date of CERCLA's enactment by federal, state, and private parties as a result of actions which transpired prior to passage of the statute.⁵⁹ Some courts have held that defendants may also be lable for response costs incurred by the government prior to enactment of CERCLA.⁶⁰

Selection of Disposal or Treatment Facilities or Sites

Transporter liability under CERCLA is limited, in part, by the qualifying language of § 107(a)(4). That section provides that liability applies only to persons who accept or accepted any hazardous substance for transport to "disposal or treatment facilities or sites selected by such person."⁶¹

Although it is unclear from the face of § 107(a)(4) whether the "selected by" language modifies only "sites" or applies equally to "disposal or treatment facilities,"⁶² the courts have had little apparent difficulty in interpreting and applying it. The courts generally appear to view the terms "disposal facilities," "treatment facilities," and "sites" as interchangeable, and simply require that a transporter have selected the destination for disposal before they will find him liable.⁶³

The courts' interpretation of § 107(a)(4) is in accord with remarks made following CERCLA's enactment by Senators Chafee and Randolph during consideration of the 1984 amendments to the Resource Conservation and Recovery Act (RCRA).⁶⁴ The two senators had both been members of the Senate Committee on Environment and Public Works in 1980, when that committee played an instrumental role in drafting CERCLA. In introducing their 1984 amendment, which limited possible citizen suits against transporters, Chafee and Randolph indicated that the proposed provision would bring RCRA into accord with CERCLA, which, they stated, requires selection of the disposal destination by the transporter before liability can be imposed upon him. The explanation which accompanied the amendment states, in relevant part:

This amendment would be consistent with the Comprehensive Environmental Reponse, Compensation, and Liability Act (CERCLA). CERCLA provides that a transporter may be liable for damages resulting from the release of hazardous waste from a facility, which the carrier transported to that hazardous waste facility — but only if the carrier actually selected that facility. Under new section [16 ELR 10252] 7002(a)(1)(B), however, a citizen could bring an action against the transporter for contributing to the past transportation of this hazardous waste even though it did not select the site. The action could include a claim that an innocent transporter should undertake or contribute to site cleanup. CERCLA recognizes that such a transporter should not be liable under those circumstances. With this amendment section 7002(a)(1)(B) will also deal with transporters in the same manner.⁶⁵

EPA has recently moved to clarify the site selection issue. Previously, the agency had issued letters to transporters notifying them that they were potentially responsible parties (PRPs) before it was determined whether they had selected the delivery destination. Transporters also had been named as defendants in CERCLA suits before such a determination was made. EPA's Office of Waste Program Enforcement has issued a policy memorandum which states that PRP notice letters should not be sent to transporters, nor should enforcement actions be brought against them, until EPA has determined that the transporter selected the disposal or treatment facility or site.⁶⁶

Transporters faced with potential liability for the cleanup of a treatment or disposal facility or site should carefully examine the site selection defense. Further, in order to limit their potential liability, transporters should, to the extent possible, require the generator to expressly select the destination for delivery of the hazardous substances.⁶⁷

Third-Party Defenses

Section 107(b) identifies several defenses to liability. In addition to defenses based on acts of God and war, that section provides that no liability shall attach under § 107(a) when the release or threat of release was caused solely by an act or omission of a third party not employed by or contractually related to the otherwise liable party.⁶⁸ In order for the third-party defense to apply, the potentially liable party must establish by a preponderance of the evidence that he exercised due care in regard to the substances, that he took precautions against the foreseeable acts or omissions of the third parties, and that the consequences of those acts or omissions were foreseeable.⁶⁹

The third-party defense may be available to transporters faced with liability stemming from post-delivery releases from treatment and disposal facilities. Transporters could assert that the releases were solely a result of the improper design, construction, or operation of the treatment or disposal facility by third parties and, therefore, transporter liability should not attach.

The chances for a successful third-party defense by a transporter will hinge on the particular facts of the case and whether the transporter can meet his burden of proving lack of contractual contact, due care, and foreseeability. The courts have construed and applied the requirements of § 107(b) very narrowly in determining liability.⁷⁰ In general, the courts have been reluctant to grant either plaintiffs' partial summary judgment motions on liability or defendants' motions to dismiss based on the third-party defense, opting instead for the development of additional facts at trial.⁷¹

In order to preserve the possibility of a third-party defense, a transporter should, to the extent possible, have the generator of the hazardous substances make all arrangements regarding the transport and disposal of those materials. A transporter should avoid any contractual ties to the treatment or disposal facility. Further, in regard to the requirements of due care and lack of foreseeability, a transporter should consider familiarizing himself with the general methods of operation and reputation of the facilities he intends touse for final disposal or treatment and refuse to transport materials to any facilities which have a history of poor operation and maintenance.⁷²

[16 ELR 10253]

Releases During Transport

In addition to potential liability for releases from land treatment or disposal facilities, a transporter is liable under CERCLA for releases of hazardous substances which occur during transport. This liability stems from § 107(a)(1) which provides that an owner or operator of a facility is liable for releases of hazardous substances to the environment.⁷³ Section 101(20)(B) also provides that a carrier is considered to be an owner or operator of a hazardous substances facility during transport.⁷⁴

There may, however, be certain circumstances in which a transporter would not be liable under CERCLA for releases during transport. Under § 306, these circumstances occur when the release takes place during transportation that commenced before the released substance was listed as hazardous under the Hazardous Materials Transportation Act (HMTA).⁷⁵ Section 306 provides:

(a) Each hazardous substance which is listed or designated as provided in section 9601(14) of this title shall, within ninety days after December 11, 1980, or at the time of such listing or designation, whichever is later, be listed as a hazardous material under the Hazardous Materials Transportation Act.

(b) A common or contract carrier shall be liable under other law in lieu of section 9607 of this title for damages or remedial action resulting from the release of a hazardous substance during the course of transportation which commenced prior to the effective date of the listing of such substance as a hazardous material under the Hazardous Materials Transportation Act, or for substances listed pursuant to subsection (a) ofthis section, prior to the effective date of such listing: Provided, however, That this subsection shall not apply where such a carrier can demonstrate that he did not have actual knowledge of the identity or nature of the substance released.⁷⁶

While the congressional intent behind this section appears to be the coordination of CERCLA with the HMTA, § 306 is ambiguously worded and is therefore difficult to apply. Strictly interpreted, § 306(b) would subject a carrier to liability under "other laws" in lieu of CERCLA if an in-transit release occurred before the released substances were listed. If, however, the carrier could demonstrate that he did not have actual knowledge of the identity or nature of the substance released, he could be held liable under CERCLA rather than "other laws," a term which is not defined in CERCLA. Such an interpretation would, however, have little practical application. It strains the imagination to envision a carrier attempting to prove lack of knowledge under such a reading, for doing so would subject him to liability under CERCLA, a liability far more devastating than any imposed upon a carrier by "other laws," whatever those laws might be.

Subsection (b) can be more logically interpreted to mean that, if a transporter was unaware of the hazardous nature of the released substances, and those substances were released prior to being listed as hazardous, the transporter shall not be liable under either CERCLA or other laws.

The third and most compelling alternative is that subsection (b) is the victim of a drafting error. It may well have been intended to require the carrier to prove lack of knowledge of the hazardous nature of the transported substances in order to be released from liability under CERCLA and be held responsible only under other laws. If this scenario is correct, then Congress may have intended the proviso phrase of subsection (b) to read "provided, however, that this subsection shall not apply unless such carrier can demonstrate that he did not have actual knowledge…."

This latter alternative appears to be the most consonant with the intent and original language of this provision when it was introduced by Senator Cannon as an amendment to S. 1480. Senator Cannon's amendment was simple and straightforward, and was clearly intended to absolve transporters of liability under CERCLA for in-transit releases of substances which had not yet been listed. The amendment stated:

SEC. 13. (a) Each hazardous substance which is listed or designated as provided in section 2(b)(13) of this Act shall, within ninety days after the date of enactment of this Act or at the time of such listing or designation, whichever is later, be listed as a hazardous material under the Hazardous Materials Transportation Act.

(b) A common or contract carrier shall not be liable under Section 4 [the general liability provision] of this Act for damages or remedial action resulting from the release of a hazardous substance during the course of transportation which commenced prior to the effective date of this designation under Subsection (a) of this section.⁷⁷

Senator Cannon's amendment was not adopted, however. Instead the provision was passed in its current form on November 24, 1980, when it was introduced without explanation by Senators Stafford and Byrd.⁷⁸

To date, no courts have addressed the issue of the correct application of § 306.

Limits of Liability

Section 107(c) establishes the upper limits of liability for transporters and other "responsible persons" identified under § 107(a). Subsection (c)(1)(D) provides an upper liability limit of $50 million for damages plus all costs of response for a release from a land disposal or treatment facility. For releases from a motor vehicle, aircraft or rolling stock, the upper limit of liability is $50 million.⁷⁹ Special [16 ELR 10254] provision is made, however, under subsection (c)(1)(C), for a reduction of the maximum liability for releases from vehicles, aircraft, and rolling stock: the Department of Transportation is granted the power under that subsection to promulgate regulations reducing the upper limits of liability for transporters from $50 million to an amount not less than $5 million.⁸⁰

It is interesting to note that § 107(c) provides a mechanism for reducing a transporter's maximum liability for releases occurring during transport, but not for releases which occur from a disposal or treatment facility after delivery by the transporter. In addition, § 107(c) appears to provide an absolute cap on liability of $50 million for releases occurring during transport, regardless of how great the natural resources damages or response costs might be. In contrast, post-delivery releases from a facility could cost a transporter $50 million in damages plus all costs of response. Under this scheme, a transporter could face greater liability for a release from a disposal facility, an event over which he has no control, than he would for a release occurring during transport, at a time when he has near total control.

Conclusions

While it is settled law that responsible parties under CERCLA are subject to a strict liability standard, several other issues remain open to debate in the area of transporter liability. Many of these ambiguities create opportunities for transporter defendants to challenge the plaintiff's burden of proof, to assert defenses which are not enumerated in § 107(b), and to argue for reduction of their share of damages and response costs.

In the area of causation, a transporter can argue that, although a majority of courts have held that proof of causation is not required in order to impose CERCLA liability, there is a respectable minority of courts that have kept this issue alive. Although transporters clearly face an uphill battle on this issue, § 101(20)(C)(ii) may provide additional support for the proposition that causation must be proven in order to impose liability upon a transporter for post-delivery releases from disposal or treatment facilities.

Transporters who did not participate in choosing the site for delivery of hazardous substances should assert a defense based on site selection under § 107(a)(4).

For releases of hazardous substances during transport which began prior to the listing of those substances under the Hazardous Materials Transportation Act, where a transporter defendant can prove that he had no knowledge of the hazardous nature of the substances, he should consider arguing that he should be held liable, if at all, under other laws rather than under CERCLA, since any liability imposed under other laws is likely to be less onerous than CERCLA liability.

Finally, a transporter who cannot avoid liability should carefully examine whether the injury is divisible according to the contribution of each of the various defendants. If so, then there is a clear case for apportionment of damages. If not, then the transporter may still be able to assert that other practical considerations, such as amount and toxicity of the waste transported, exercise of due care, and cooperation with government officials to prevent harm to public health or the environment, render the imposition of joint and several liability inequitable and militate in favor of apportionment of damages.

1. See, e.g., Hazardous Materials Transportation Act of 1974, 49 U.S.C. §§ 1801-1811; Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. §§ 6901-6987, ELR STAT. 42001.

2. For a general overview of the issues involved in the transportation of hazardous materials, including federal, state, and local roles, prevention and enforcement, emergency response, and information gathering, see U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, TRANSPORTATION OF HAZARDOUS MATERIALS: STATE AND LOCAL ACTIVITIES, OTA-SET-301 (1986); Dougherty, Hazardous Waste at the Crossroads: Federal and State Transit Rules Confront Legal Roadblocks, 12 ELR 10075 (1982); see also Rosbe, Transport of Hazardous Substances, 15 ELR 10255 (1985).

3. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941. This article focuses upon liability under CERCLA as enacted in 1980. As part of the present reauthorization process, both houses of Congress have passed bills amending CERCLA. A joint congressional committee has just announced that it has agreed to certain provisions of a CERCLA compromise bill. The contents of that compromise bill were not available to the authors at press time. However, on the basis of the House and Senate bills that were being negotiated by the conference committee, the authors do not anticipate that transporter liability as discussed in this paper will be significantly modified by the committee's actions.

4. In addition to transporters, CERCLA § 107(a) identifies "owners or operators" of hazardous waste "facilities" (as those terms are defined in the statute), past owners and operators, and persons who arrange for disposal of hazardous substances (commonly referred to as "generators") as liable parties for releases of hazardous substances to the environment. 42 U.S.C. §§ 9607(a)(1), (2), and (3), ELR 41947.

5. CERCLA § 107(c)(1), 42 U.S.C. § 9607(c)(1), ELR STAT. 41947. See infra note 79 and accompanying text.

6. Since the advent of CERCLA, the courts have consistently bemoaned the poor draftsmanship of the Act in attempting to decipher its ambiguous and tangled provisions. See generally United States v. Stringfellow, 14 ELR 20385, 20386 (C.D. Cal. Apr. 5, 1984); City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 1142-43, 12 ELR 20915, 20917-18 (E.D. Pa. 1982); Ohio ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 1310, 13 ELR 20457, 20462 (N.D. Ohio 1983); United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1111, 12 ELR 20954, 20957 (D. Minn. 1982).

7. Innocent transporters are treated unfairly in CERCLA's liability scheme in one other respect. While they play an important role in ensuring the proper disposal and treatment of hazardous substances, that role is limited. Transporters neither created the hazardous substances nor are they responsible for their treatment or disposal once they have been delivered to a facility. Nonetheless, transporters are potentially liable under § 107 to the same degree as generators or owners and operators of treatment or disposal facilities. Despite the inherent inequity in this statutory scheme, the courts have given no indication that transporters will be treated differently from other liable parties identified in CERCLA.

CERCLA's broad liability scheme may prompt results unintended by Congress. Faced with potential ad infinitum liability for postdelivery releases from treatment or disposal facilities, transport firms that properly handle hazardous substances may elect to terminate business, leaving the nation sorely in need of responsible transport services.

8. Under the National Contingency Plan, 40 C.F.R. § 300, ELR REG. 47401, a state may act in place of EPA as the lead agency in responding to a release or threat of release of hazardous substances. 40 C.F.R. § 300.24, ELR REG. 47402.

9. The Hazardous Substance Response Trust Fund (more commonly known as the "Superfund") was established under CERCLA § 221, 42 U.S.C. § 9631, ELR STAT. 41953.

10. See CERCLA § 107(a)(4)(C), 42 U.S.C. § 9607(a)(4)(C), ELR STAT. 41947.

11. Liability under CERCLA for persons who transport hazardous substances obviously goes far beyond the landfill context and extends to railways, pipelines, aircraft, and other means of conveyance. CERCLA liability also encompasses owners and operators of vessels used for transportation on water. See §§ 107(a)(1) and 101(28). To date, however, CERCLA has been invoked primarily for releases from landfills. Accordingly, the discussion in this article is limited to onland transportation and disposal of hazardous substances. For interesting discussions of liability under CERCLA and other laws for transport by means other than motor carrier, see Pawlow, Liability for Shipments by Sea of Hazardous and Noxious Substances, 17 LAW & POL'Y IN INT'L BUS. 455 (1986); Schoenbaum, Liability for Spills and Discharges of Oil and Hazardous Substances from Vessels, 20 FORUM 152 (1984); Quarles, Rail Transportation of EPA-Regulated Hazardous Wastes, 17 FORUM 857 (1982).

12. Section 107(b), entitled "Defenses," provides:

(b) There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by —

(1) an act of God;

(2) an act of war;

(3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or

(4) any combination of the foregoing paragraphs.

42 U.S.C. § 9607(b), ELR STAT. 41947.

13. Section 101(9) broadly defines "facility" to include "(A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel." 42 U.S.C. § 9601(9), ELR STAT. 41943. Accordingly, a transporter is potentially liable, as an owner or operator of a facility (the facility being his vehicle) for releases which occur during transport.

14. CERCLA § 101(26) defines "transport" or "transportation" to mean "the movement of a hazardous substance by any mode, including pipeline (as defined in the Pipeline Safety Act, 49 U.S.C. §§ 1671 et. seq.), and in the case of a hazardous substance which has been accepted for transportation by a common or contract carrier, the term 'transport' or 'transportation' shall include any stoppage in transit which is temporary, incidental to the transportation movement, and at the ordinary operating convenience of a common or contract carrier, and any such stoppage shall be considered as a continuity of movement and not as the storage of a hazardous substance." 42 U.S.C. § 9601(26), ELR STAT. 41944.

15. 42 U.S.C. § 9607(a)(1) and (a)(4), ELR STAT. 41947.

16. 42 U.S.C. § 9601(20)(B), ELR STAT. 41943.

17. 42 U.S.C. § 9601(20)(C), ELR STAT. 41943.

18. See, e.g., New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (the present owner of a hazardous substance site held to be strictly liable); United States v. Cauffman, 15 ELR 20161 (C.D. Cal. Oct. 23, 1984) (owners and operators of hazardous substances facilities as well as past owners and operators at the time of disposal are strictly liable under §§ 107(a)(1) and (2), respectively); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985); United States v. Price, 577 F. Supp. 1103, 13 ELR 20843 (D.N.J. 1983); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983); City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 1140 n. 4, 12 ELR 20915, 20916 n. 4 (E.D. Pa. 1982) (strict liability to be imposed on "responsible party" identified in § 107(a)); United States v. South Carolina Recycling and Disposal, Inc., 14 ELR 20895 (D.S.C. 1984).

19. 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984).

20. 33 U.S.C. § 1321, ELR STAT. 42103.

21. In holding the defendant liable as a transporter of hazardous wastes, the court stated:

Defendant Mills was an independent contractor who contracted with representatives of NEPACCO to transport the hazardous waste from their facility to the Denney farm site. Defendant Mills had previously selected the Denney farm site and contracted with James Denney to deposit the hazardous waste at a specific price. The Court finds that defendant Mills is strictly liable pursuant to sections 101(26), 104, 106(a) and 107(a)(4), 42 U.S.C. §§ 9601(26), 9604, 9606(a) and 9607(a)(4) as a transporter of hazardous waste.

Northeastern Pharmaceutical, 579 F. Supp. at 846-47, 14 ELR at 20222.

22. 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982). Accord United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

23. See generally Comment, CERCLA 1985; A Litigation Update, 15 ELR 10395 (1985); Frank & Atkeson, Superfund: Litigation and Cleanup, 16 ENV'T REP. (BNA) 50 (1985); Comment, CERCLA Litigation Update: The Emerging Law of Generator Liability, 14 ELR 10224 (1984); Mintz, A Response to Rogers, Three Years of Superfund, 14 ELR 10036 (1984); Rogers, Three Years of Superfund, 13 ELR 10361 (1983); Our Opinion, 6 CHEM & RAD. WASTE LITIG. REP. 25 (1983).

24. The courts often speak in general terms and refer to the "causation requirement" or "causal nexus" under CERCLA rather than dissecting causation into its component parts of cause-in-fact and proximate cause. See KEETON, PROSSER AND KEETON ON THE LAW OF TORTS §§ 41-45 (1984). In the generator context, the courts often couch the issue of causation in terms of whether a CERCLA plaintiff must establish that a particular defendant's hazardous substances "caused" the incurrence of response costs at the site in question. Framed in this manner, the issue is primarily one of cause-in-fact.

Similarly, in the transporter liability context, the causation issue may be framed as whether a plaintiff must establish that the materials conveyed to a treatment or disposal facility by a particular transporter defendant caused the incurrence of response costs at the site.

25. See United States v. South Carolina Recycling and Disposal, Inc., (South Carolina Recycling I), 14 ELR 20272 (D.S.C. Feb. 23, 1984); United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983). See also United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

The relative positions of the parties in Wade typify the causation controversy. In that case, the government argued that CERCLA creates "presumption of causation" when a defendant falls within one of the classes of persons identified in § 107. The generator defendants, in turn, argued that traditional tort law concepts of causation should apply, and that the government should be required to prove both that a defendant's hazardous substances were deposited at the site in issue and that those substances have been the subject of the government's response action. Defendants argued in the alternative that the government must at least prove a link or causal nexus between its response costs and waste of the same sort as that created by the generators. 577 F. Supp. 1332, 14 ELR at 20097; see also Memorandum of Plaintiff United States in Opposition to Defendants' Motion for Summary Judgment, reprinted in 6 CHEM. & RAD. WASTE LITIG. REP. 648 (1983).

26. See South Carolina Recycling I, 14 ELR at 20274 n. 5; see infra text at notes 68-72 regarding third-party defenses.

27. See United States v. Wade, 577 F. Supp. at 1333-34, 14 ELR at 20098 (citing H.R. REP. NO. 1016, 96th Cong., 2d Sess. (1980), reprinted in 1980 U.S. CODE CONG. & ADMIN. NEWS 6119, 6136-37).

28. Id.

29. Id., 577 F. Supp. at 1334, 14 ELR at 20098.

The courts have employed a similar line of analysis — strict interpretation of the statutory language coupled with the legislative history — in analyzing the causation issuein regard to other categories of liable parties under § 107(a). See New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (proof of specific causation is not required to establish liability of an owner/operator under § 107(a)(1)). Accord United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

30. For generators, the requirement that the defendant's hazardous substances (or similar substances) be present at the site is based on the express language of § 107(a)(3). The last portion of that subsection provides that a generator is liable if his materials are deposited at a facility which "contain[s] such substances." See United States v. Wade, 577 F. Supp. at 1332, 14 ELR at 20097.

Similar language does not appear in § 107(a)(4) regarding transporters. Nonetheless, it is only logical that the courts would apply such a requirement to transporters also. Without that requirement, a plaintiff's burden of proof would be less stringent for establishing transporter liability than for establishing generator liability; a transporter could be liable simply for transporting hazardous substances to a facility he selected even though those materials, or similar substances, were no longer present at the site. Such disparate treatment for transporters appears unwarranted.

31. There is no express causation requirement in § 107(a)(4). However, the reasoning of the Wade and Shore Realty courts, that the deletion of causation language from CERCLA's predecessor bills evidences congressional intent to eliminate causation as an element of liability, appears to be equally applicable to transporters.

32. 14 ELR 20895 (D.S.C. Aug. 28, 1984).

33. Id. at 20898.

34. Id. at 20895-97; see also United States v. Conservation Chemical Co., 619 F. Supp. at 191, 16 ELR at 20203.

35. No. 80-225-L (D.N.H. Nov. 26, 1984)

36. The court's reasoning is difficult to follow. It is apparently based solely on two cases, United States v. Tex-Two Co., 589 F.2d 1310, 9 ELR 20006 (7th Cir. 1978), and United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983), and does not address the various other cases discussed above which hold that causation is not an element of liability under CERCLA.

The Ottati court cites United States v. Wade, apparently as support for the proposition that causation is an element of liability under § 107. The court quotes extensively from portions of the Wade case regarding the causation language which was present in the predecessor bills to CERCLA. As noted in Wade, however, that language was deleted prior to enactment and this deletion was cited by the Wade court in support of its holding that causation is not an element of liability under CERCLA. Tex-Tow, the remaining case cited by the Ottati I court, arose under the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1251-1376, ELR STAT. 42101. Tex-Tow owned a barge which released oil into a waterway as a result of a collision caused by a third party. Tex-Tow asserted that, although it was the cause-in-fact of the oil spill, it was not the proximate cause due to the intervening act of the third party. In reviewing Tex-Tow's assertions, the court held that even though the FWPCA is a strict liability statute, the elements of causation and foreseeability must be proven in order to impose liability. The court then concluded, however, that proximate or legal cause was satisfied when the actual pollution was coupled with the statisticalforeseeability of pollution attributable to the type of activity engaged in by Tex-Tow. The court noted, in relevant part, that "[although] a third party may be responsible for the immediate act or omission which 'caused' the spill, Tex-Tow was engaged in the activity or enterprise which 'caused' the spill." Tex-Tow, 589 F.2d at 1314, 9 ELR at 20008.

37. Ottati I, 22 ERC at 1739 (emphasis added).

38. 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985).

39. South Carolina Recycling I, 14 ELR 20272; United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096. The Ottati court appears to have taken an approach to the causation issue directly opposite to that taken by the Wade and South Carolina Recycling courts. In Wade and South Carolina Recycling I, the courts held that CERCLA does not require specific proof of causation and that a plaintiff, in order to establish a defendant's liability, must only meet the limited four-part test set out by the courts. The Ottati court, by contrast, seems to hold that a showing of causation — both cause-in-fact and proximate cause — is required. The Ottati court, however, seemingly concludes that cause-in-fact is satisfied by meeting the same four-part test set out in Wade and South Carolina Recycling I. The Ottati court then apparently concludes that proximate cause is established if the defendant is engaged in a business which deals with hazardous substances. From a defendant transporter's viewpoint, the different approaches are only of academic interest as the result in either case is the same.

40. See supra note 35.

41. In contrast, in Ottati II the generator defendants' hazardous substances were present at the site and the government incurred response costs as a result of those substances. Further, the generators were engaged in a business involving hazardous substances. They were, therefore, found liable.

42. 562 F. Supp. 1300, 13 ELR 20457 (N.D. Ohio 1983).

43. 633 F. Supp. 609 (S.D.N.Y. 1986).

44. Proximate causation, rather than cause-in-fact, appears to be the primary focus of the court's inquiry. As the Georgeoff court frames the issues, it appears to be assumed that the hazardous substances delivered by the transporter were present at the site and resulted in the incurrence of response costs by the government. The issue then became whether an intervening event (for example, poor facility construction or management) would preclude a finding that the transporter is legally responsible for cleanup of the site.

45. 562 F. Supp. at 1306, 13 ELR at 20460.

46. 633 F. Supp. 609 (S.D.N.Y. 1986).

47. 688 F. Supp. at 620 (emphasis added).

48. See also Idaho v. Bunker Hill Co., 635 F. Supp. 665, 674 (D. Idaho 1986) (CERCLA plaintiff must prove causal link between act of defendant owner/operator and damage to natural resources for which recovery is sought).

49. The use of the terms "common carrier" and "contract carrier" in § 101(20)(C), instead of "transporter" or "person who accepts hazardous substances for transport" as in § 107(a)(4), appears to be an intentional limitation of the scope of § 101(20)(C). "Common carrier" and "contract carrier" are defined terms under federal interstate commerce transportation statutes. A "motor common carrier" is defined as "a person holding itself out to the general public to provide motor vehicle transportation for compensation over regular or irregular routes, or both." 49 U.S.C. § 10102(13). A "motor contract carrier" is defined, in part, as "a person providing motor vehicle transportation of property for compensation under continuing agreements with one or more persons (i) by assigning motor vehicles for a continuing period of time for the exclusive use of each such person; or (ii) designed to meet the distinct needs of each such person." 49 U.S.C. § 10102 (14)(B). Thus, CERCLA § 101(20)(C) does not appear to apply to persons who are not ordinarily in the transport business, persons who agree with a generator to haul waste on only one occasion, and persons transporting their own hazardous substances. This analysis may be applied as well to § 101(20)(B), which also refers to "common or contract carriers."

50. 42 U.S.C. § 96011 (20)(C), ELR STAT. 41943. Section 101(20)(C) does not expressly state that proof of causation is required. The "caused or contributed" phrase in that subsection, however, is virtually identical to language once present in the general liability provisions of the predecessor bills to CERCLA. As previously discussed, Congress intended the "caused or contributed" language in the general liability provisions to require a showing of causation in order to establish liability. See discussion of H.R. 7020, supra text at notes 27-29. A similar intent can logically be attributed to the "caused or contributed" language of subsection 20(C).

Causation language identical to that used in subsection 20(C) is found in § 101(20)(B)(ii). Subsection 20(B)(ii) appears to require that causation be established in order to impose liability on a generator of hazardous substances for releases which occur during the time of transport.

51. Further, from a practical standpoint, it is of little significance to a transporter that he is not liable as an owner or operator if he continues to remain liable under other provisions of § 107(a).

52. In a letter to Senator Howard Cannon (Aug. 26, 1980), Bennett C. Whitlock, Jr., of the American Trucking Associations, Inc., stated:

I am writing on behalf of the motor carrier industry to express concern over several provisions of S. 1480, "Environmental Emergency Response Act," which appear to be inappropriate for truck operations, and to recommend changes in the bill which the trucking industry believes will improve the practicality of the legislation.

* * *

Our primary concern with S. 1480 is that, in addition to the provisions of strict liability, the legislation establishes transporter liability that extends far beyond the immediate transportation activity. Section 4(a)(iv) provides that a transporter is jointly, severally and strictly liable for releases from a disposal or treatment facility to which it has transported any hazardous substances. This provision establishes a long-term liability that is unjustified. We believe that the transporter should be liable only for releases that occur during the transportation of hazardous substances or which are a result of circumstances within the transporter's control. To that end, we ask for revision of Section 4(a)(iv) and for inclusion of a limitation of liability provision for transporters similar to that in Section 2(b)(15)(b)(ii) [the predecessor to section 9601(20)(B)] which limits the liability of generators of hazardous substances. Through such an amendment the transporter of hazardous substances "shall not be considered to have caused or contributed to any discharge or release" following such transportation "which resulted solely from circumstances or conditions beyond its control."

126 Cong. Rec. S12921 (daily ed. Sept. 18, 1980) (statement of Senator Cannon), reprinted in ENVIRONMENTAL LAW INSTITUTE, 1 SUPERFUND: A LEGISLATIVE HISTORY 179 (1983).

53. It is difficult to discern from the legislative history what Congress intended with respect to proof of causation for transporters for postdelivery releases. As previously discussed, the deletion of similar causation language from the general liability provisions of the predecessor bills to CERCLA has been interpreted by the courts to reflect Congress' intent to remove causation as an element of liability. Section 101(20)(C), however, was added after the causation requirement was dropped from the general liability provisions of S. 1480, and arguably evidences a congressional intent to re-create a causation requirement expressly for transporters. This argument is, however, undermined by the "except as provided" language which was subsequently added to that subsection.

54. See, e.g., United States v. Shell Oil Co., 605 F. Supp. 1064, 15 ELR 20337 (D. Colo. 1985); United States v. Conservation Chemical Corp., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); United States v. A & F Materials Co., 578 F. Supp. 1249, 14 ELR 20105 (S.D. Ill. 1984); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983).

55. See cases cited supra note 54.

56. United States v. A & F Materials Co., 578 F. Supp. 1249, 1256, 14 ELR 20105, 20108 (S.D. Ill. 1984) (quoting with approval the following criteria for apportionment which had been set out in the Gore amendments to H.R. 7020, a predecessor to CERCLA: (1) ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished, (2) amount of the hazardous waste involved, (3) the degree of toxicity of the waste, (4) the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste, (5) degree of care exercised by the parties, and (6) the degree of cooperation by the parties with federal, state, or local officials to prevent any harm to the public health or the environment).

Accord United States v. Stringfellow, 14 ELR 20385 (C.D. Cal. Apr. 5, 1984). See also Frank & Atkeson, Superfund: Litigation and Cleanup, 16 Env't Rep. (BNA) 50 (1985).

57. See, e.g., United States v. Northeastern Pharmaceutical & Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984) (defendant generators, transporters, and site owner acted to cumulatively create an indivisible condition at the hazardous substance site; therefore, joint and several liability is appropriate); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983); United States v. Conservation Chemical Corp., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

58. United States v. Ottati & Goss, Inc. (Ottati III), No. 80-225-L (D.N.H. Mar. 3, 1986). See also Consent Decree, United States v. Chem-Dyne Corp., Nos. C-1-82-840 and C-1-82-962; but see South Carolina Recycling I 14 ELR 20272 (D.S.C. Feb. 23, 1984) (rejecting apportionment based on relative volumetric contribution as not taking into consideration toxicities of the materials deposited at the site).

59. See generally United States v. Northeastern Pharmaceutical & Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984); Ohio ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 13 ELR 20457 (N.D. Ohio 1983). Accord United States v. Wade, 577 F. Supp. 1326, 14 ELR 20437 (E.D. Pa. 1984); United States v. Morton-Thiokol, Inc., No. 83-4787 (D.N.J. July 2, 1984).

60. See, e.g., United States v. Shell Oil Co., 605 F. Supp. 1064, 15 ELR 20337 (D. Colo. 1985); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985); Ottati II, 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985). But see United States v. Wade, 577 F. Supp. 1326, 14 ELR 20437 (E.D. Pa. 1984); United States v. Northeastern Pharmaceutical & Chemical Co., 579 F. Supp. 823 (W.D. Mo. 1984).

61. 42 U.S.C. § 9607(a)(4), ELR STAT. 41947 (emphasis added). The site selection defense is unique to transporters, arising directly from the express language of § 107(a)(4). The courts have consistently rejected the argument that site selection is also an element of generator liability. See United States v. Conservation Chemical Co., 619 F. Supp. at 233-34, 16 ELR at 20225; United States v. Wade, 577 F. Supp. at 133 n. 3, 14 ELR at 20098 n. 3.

62. Under the former reading, a transporter would be liable for transport to sites which he selected, and for transport to any disposal or treatment facilities whether selected by him or not. Under the latter reading, a transporter would only be liable if he selected the destination for delivery, regardless of whether that destination was a "disposal facility," a "treatment facility," or a "site."

The ambiguity is caused in part by the apparently redundant listing of "sites" along with "facility"; the latter term is defined broadly in § 101(9) to include "sites." See supra note 13.

63. See United States v. South Carolina Recycling & Disposal, Inc., 14 ELR at 20898 (D.S.C. Aug. 28, 1984) (court stated that in order to establish transporter liability under § 107(a)(4), "the government must prove that a person accepted hazardous substances for delivery to a disposal or treatment facility selected by that person"). See also United States v. Northeastern Pharmaceutical and Chemical Co., Inc., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984) (transporter defendant found liable under § 107(a)(4), based in part on his selection of the disposal "site," a farm where the hazardous substances were deposited into newly excavated trenches); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (court used the terms "site" and "facility" interchangeably).

64. 42 U.S.C. §§ 6901-6987, ELR STAT. 42001.

65. 130 CONG. REC. S9177 (daily ed. July 25, 1984).

66. See Memorandum from G. Lucero and F. Stiel to EPA Regional Counsels and Regional Waste Management Division Directors, (Dec. 23, 1985) (discussing Policy for Enforcement Actions Against Transporters under CERCLA), reprinted in 11 CHEM. WASTE LITIG. REP. 653 (1986). According to the memorandum, EPA will attempt to determine whether a transporter selected the site in issue through review of site records and the records of federal and state regulatory agencies, as well as through information request letters issued pursuant to CERCLA § 104(e).

67. It is important to note that the care which a transporter must take in transporting hazardous substances does not end simply because the generator, and not the transporter, selected the facility. Plaintiffs also may assert various common law claims against the transporters. For example, plaintiffs may allege that, even if a transporter did not select the site, the transporter is still liable under common law for negligently depositing the hazardous substances at a site which the transporter knew or should have known was poorly operated. See Kenny v. Scientific, Inc., 204 N.J. Super. 228, 497 A.2d 1310, 15 ELR 20403 (N.J. Super. Ct. Law Div. 1985).

68. 42 U.S.C. § 9607(b), ELR STAT. 41947. The requirement of lack of contractual consent apparently does not apply to arrangements arising from published tariff and acceptance for carriage by a common carrier by rail. See § 107(b)(3).

69. CERCLA § 107(b), 42 U.S.C. § 9607(b), ELR STAT. 41947; see supra note 12.

70. See, e.g., New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358, (2d Cir. 1985) (third-party defense not applicable to present land owner who was aware of or could have foreseen the activities of his tenant regarding the disposal of hazardous materials on the property); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (a generator cannot assert third-party defense where transporters dumped wastes along roadside as contractual relationship existed between generator and transporter).

71. United States v. Maryland Bank & Trust Co., 632 F. Supp. 573, 16 ELR 20557 (D. Md. 1986) (the government's motion for summary judgment on issue of third-party defense denied as additional facts required regarding defendants' exercise of due care); United States v. Mirable, 15 ELR 20992 (E.D. Pa. Sept. 4, 1985) (government's motion for partial summary judgment denied; genuine issues of fact remain regarding defendant's due care and foreseeable acts or omissions of third parties); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985). But see United States v. South Carolina Recycling and Disposal, Inc., 14 ELR 20272, 20274 (D.S.C. Feb. 23, 1984) (government's motion for partial summary judgment on liability granted as defendant failed to support third-party defense with affidavits); United States v. Argent Corp., 14 ELR 20616 (D.N.M. May 4, 1984).

72. There obviously is no guarantee that such actions by a transporter will ensure the availability of the third-party defense. The language of § 107(b)(3) is vague and extremely broad. The third-party defense apparently is lost if the third parties' actions or omissions are "in connection with" a contractual relationship between the third party and the defendant. Further, the contractual relationship can be either direct or indirect. It is unclear whether a contract between the generator and the disposal facility, which contemplates the transporter's role in moving the hazardous materials from the generator to the disposal facility, would be sufficient to void the third-party defense for the transporter. See Commonwealth v. Pace, 616 F. Supp. 815, 16 ELR 20036 (D. Mass. 1985) (under the Massachusetts Oil and Hazardous Material Release Prevention Act, the state equivalent of CERCLA, third-party defense is not available to transporters that had direct or indirect contractual relationship with generators of the wastes and owners and operators of the site; due care during transport not sufficient to establish that transporters took precautions against foreseeable acts or omissions of third parties.) Nonetheless, the more removed a transporter is from the third party responsible for the release, the better his position is to assert the defense.

73. 42 U.S.C. § 9607(a)(1), ELR STAT. 41947. See also supra note 13; under § 101(9), the "facility" which is owned or operated by a transporter is his vehicle.

74. 42 U.S.C. § 9601(20)(B), ELR STAT. 41943.

75. 49 U.S.C. §§ 1801-1811.

76. 42 U.S.C. § 9656, ELR STAT. 41955.

77. 126 CONG. REC. S13366 (daily ed. Sept. 24, 1980), reprinted in ENVIRONMENTAL LAW INSTITUTE, 1 SUPERFUND: A LEGISLATIVE HISTORY 175 (1983).

78. See 126 CONG. REC. S14962 (daily ed. Nov. 24, 1980), reprinted in ENVIRONMENTAL LAW INSTITUTE, 2 SUPERFUND: A LEGISLATIVE HISTORY 258 (1983).

79. Section 107(c)(1) provides:

(c)(1) Except as provided in paragraph (2) of this subsection, the liability under this section of an owner or operator or other responsible person for each release of a hazardous substance or incident involving release of a hazardous substance shall not exceed —

(A) for any vessel which carries any hazardous substance as cargo or residue, $300 per gross ton, or $5,000,000 whichever is greater;

(B) for any other vessel $300 per gross ton, or $500,000, whichever is greater;

(C) for any motor vehicle, aircraft, pipeline (as defined in the Hazardous Liquid Pipeline Safety Act of 1979), or rolling stock, $50,000,000 or such lesser amount as the President shall establish by regulation, but in no event less than $5,000,000 (or, for release of hazardous substances as defined in section 9601(14)(A) of this title into the navigable waters, $8,000,000). Such regulations shall take into account the size, type, location, storage, and handling capacity and other matters relating to the likelihood of release in each such class and to the economic impact of such limits on each such class; or

(D) for any facility other than those specified in subparagraph (C) of this paragraph, the total of all costs of response plus $50,000,000 for any damages under this subchapter.

42 U.S.C. § 9607(c)(1), ELR STAT. 41947.

Section 103(c) of CERCLA provides, however, that any person who had accepted hazardous substances for transport and had selected the facility for delivery of those substances, who knowingly failed to notify EPA of the existence of that facility within 180 days after December 11, 1980, is not entitled to any limitation of liability or defenses to liability, and may be subject to criminal penalties, unless the facility was permitted or accorded interim status under the Solid Waste Disposal Act.

80. The Secretary of Transportation is the President's delegate under § 107(c), pursuant to Executive Order No. 12316, 46 Fed. Reg. 42237 (1981), as amended by Executive Order No. 12418 (1981).

No such regulations have yet been promulgated by the Department of Transportation.