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Environmental Liability: Equipment Lessor Is Responsible Under CERCLA for Cleanup Costs As the Owner of a 'Facility'
Equipment lessors need to learn a new acronym: CERCLA. It stands for the Comprehensive Environmental Response, Compensation and Liability Act, and it has the potential to expose lessors to millions of dollars in environmental liability. This according to the recent Illinois federal district court case of United States v. Saporito, 210 WL 489703 (N.D.Ill. Feb. 9, 2010). Before discussing the case, some background is in order.
Cleanup of environmentally contaminated real estate is frequently a very expensive proposition. CERCLA (a/k/a Superfund) is the federal law that deals with the nation's most polluted sites. The cost of cleanup at an average CERCLA site is in excess of $30 million. To establish who must pay these costs, the federal law identifies four groups: 1) The current owner and/or operator of a facility; 2) the owner and operator of the facility at the time of the release; 3) anyone who arranges for the disposal of hazardous waste; and 4) a transporter of hazardous waste.
As with many federal laws, the devil is in the details ' in this case, the definitions. When CERCLA refers to the owner of a “facility,” it is not referring to just a building or even the real estate. Rather, a facility is defined under CERCLA regulations to be:
- 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;
- 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.
In other words, when you think “facility” under CERCLA, think a very broad universe. With these thoughts in mind, let's review the facts of United States
v. Saporito.
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