Third Circuit confirms that the U.S. did not control the pollution related operations of chromium manufacturing facilities, and therefore, was not an “operator” under CERCLA.
On May 4, 2020, the Third Circuit issued an opinion in
PPG Industries, Inc. v . United States in
which it affirmed summary judgment granted to the U.S. on PPG’s claims that the government is subject
to liability under CERCLA as a former operator of chromium manufacturing plants in Jersey City currently
owned and being remediated by PPG. The company argued that the U.S. should be considered subject
to operator liability because it had regulated prices and labor, secured financing for facility expansion
designed to conserve chromium, and directed its distribution during World Wars I and II. In holding for
the U.S. the Circuit Court confirmed that the standard for determination of operator liability under the
U.S. Supreme Court decision,
United States v. Best Foods, focuses on the relationship between the
purported operator and the facility at issue, and on “operations specifically related to pollution.”
Actions that demonstrate control according to the Third Circuit decision requires more than general
control over an industry or a facility, it requires “some indicia of control” of the polluting activities of the
facility, which include “operations that have to do with the leakage or disposal of hazardous wastes or
decisions about compliance with environmental regulations.” The Court went on to confirm that mere
knowledge of the waste disposal practice is not the same as undertaking the practice of waste disposal
when considering CERCLA liability. The Court also confirmed that the test from Best Foods is not limited
to private enterprises but also the public entities. As there was no evidence that the actions of the
United States did not involve activities specifically related to pollution, the decision of the district court
granting summary judgment to the U.S. was affirmed.
For additional information about the matters in this bulletin or in the firm’s Environmental Practice, please
contact
Steven A. Kunzman, Esq
DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services.
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