ELR Citation: ELR 21097
No(s). 92-1945 (3d Cir. Jul 5, 1994)

On rehearing en banc, the court holds that the U.S. government is liable for cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as an operator of a privately owned World War II industrial facility. The court first holds that the government is not immune from liability when it engages in activities that would make a private party liable if the private party engaged in them. The court rejects the distinction the government offers between regulatory and nonregulatory activities. CERCLA §120(a)(1) states that the government is liable in the same manner and to the same extent as any nongovernmental entity, regardless of the type of activity. This reading of §120(a)(1) comports with case law. It also comports with the rest of CERCLA because the only defenses to CERCLA §107 liability are those listed in §107(b), and §107(b) does not include a regulatory activity exception. Moreover, the protection from liability that §107(d)(2) provides state and local governments for cleanup actions taken 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 only applies when the government is responding to an environmental emergency. The court next holds that the government is liable as an operator, because it had substantial control over the facility and was actively involved in activities there that were not in response to a threatened release of hazardous materials. The en banc court is equally divided as to whether the government is liable as an arranger and consequently affirms the district court's holding that the government is so liable.

[Prior opinions in this litigation are published at 20 ELR 21403 and 22 ELR 20796. The vacated opinion is published at 24 ELR 20207.]

Counsel for Appellee
Neil G. Epstein
Hangley, Connolly, Epstein, Chicco, Foxman & Ewing
1515 Market St., 9th Fl., Philadelphia PA 19102
(215) 851-8400

Counsel for Appellants
Vicki O'Meara
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000