ELR Citation: ELR 20238
No(s). 08-1731 (2d Cir. Oct 19, 2009)

The Second Circuit affirmed a lower court decision that a local fire department that responded to a fire at a commercial building during which hazardous materials were released into the environment is not liable under CERCLA. Because the fire department had exclusive control over the building at the time of the fire, the owner of the building argued that they were "operators" of the building under CERCLA. But control alone is not sufficient. An operator must manage, direct, or conduct operations specifically related to pollution. While the department controlled firefighting operations at the site, the hazardous materials at issue were stored in a burning building to which firefighters could not gain safe entry. These particular circumstances would not permit a conclusion as a matter of law that the firefighters had sufficient control over the hazardous materials to manage, direct, or conduct operations specifically related to pollution. In addition, CERCLA §107(d)(2) provides an affirmative defense to a §107(a) claim for actions taken by a state or local government in response to an "emergency created by the release or threatened release of a hazardous substance generated by or from a facility owned by another person." Judgment on the CERCLA claims was therefore properly entered in favor of the fire department.