ELR Citation: ELR 20311
No(s). 93-11219-REK (D. Mass. Jul 24, 1996)

The court rules that a private party attempting to recover response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) must show that the defendant caused the response costs to be incurred. The court first holds that CERCLA §107(a)'s asserted silence on the issue of causation is ambiguous and inconclusive regarding plaintiffs' argument that no causation need be proved. Further, reading §107 as if it were completely silent as to whether some limit is placed on the scope of liability under CERCLA is not even a plausibly reasonable interpretation. Subsection 107(a)(4) explicitly limits liability to response costs that are caused by a release or threatened release, and therefore, does include a causation requirement. If there were no causation requirement, then the implication of §107(b) would be that a defendant would be subject to liability for not exercising due care over waste that had been produced by another and disposed of by another. While it makes sense to hold a party accountable for knowing about the characteristics of its own waste and for taking precautions against potential harm with respect to it, CERCLA contains no provisions manifesting that every person who ever dropped anything into a particular dump site is forever accountable for taking precautions with respect to unknown wastes dumped there by unknown other parties. The court next holds that the "non-appearance" in CERCLA of language in the original House Bill that would have imposed liability on "any person who caused or contributed to the release or threatened release" of a hazardous material does not manifest a total rejection of any limitation on the scope of strict liability.

The court next holds that plaintiffs' proposed construction of CERCLA is not supported by the precedent of any circuit. The court further holds that the First Circuit is unlikely to eliminate causation as an element of the legal test for liability and extend to actions brought by private parties a rule thus far developed only for government response-cost actions. Moreover, even if a burden were placed on defendant telephone company to prove that the creosote-treated utility-pole butts it disposed of did not cause plaintiffs to incur response costs, its evidence that its waste could not have leached into the surrounding soil to create a level of polycyclic aromatic hydrocarbons greater than the preexisting background level is sufficient to meet that burden. The court next holds that §107 can be interpreted consistently with common-law formulations of strict liability as establishing a regime under which a defendant will be held liable for any pollution caused by its waste even if it took every possible precaution to prevent its waste from causing pollution. Because plaintiffs have failed to proffer any evidence regarding causation sufficient to show a genuine issue of material fact, the court grants the telephone company summary judgment.

Counsel for Plaintiffs
David M. Jones
Kirkpatrick & Lockhart
One International Pl., 13th Fl., Boston MA 02110
(617) 261-3100

Counsel for Defendants
Donald D. Cooper
Hutchins, Wheeler & Dittmar
101 Federal St., Boston MA 02110
(617) 951-6600