ELR Citation: ELR 20252
No(s). 09-20487 (5th Cir. Sep 20, 2010)

The Fifth Circuit held that a construction company that, during an excavation, failed to investigate what it hit in a pipeline corridor and rectify any damage, is not liable as an arranger under CERCLA or the Texas Solid Waste Disposal Act. The excavation work took place in 1979, but the owner of the pipeline did not learn of the damage until 2002 when a methanol leak was discovered. The owner sued the construction company to recover its cleanup costs, and both the jury and the district court found that the release at the site would not have occurred but for the 1979 damage to the pipeline. Nevertheless, the company is not liable as an arranger because it did not plan or take any intentional steps to release methanol from the pipeline. The company did not even know that it had struck a pipeline; it only knew that it had struck something with a backhoe. The court rejected the owner's argument that the company's conscious disregard of its duty to investigate is tantamount to intentionally taking steps to dispose of methanol.