ELR Citation: ELR 20020
No(s). 92-15506 (9th Cir. Oct 8, 1992)

The court holds that a real estate developer alleged facts sufficient to state a claim under §107(a)(2) and (4) of the Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) against a contractor as an "operator," because the contractor had authority to control the cause of the contamination at the time it was released, and as a "transporter," because the contractor moved hazardous wastes from one area to another within the same parcel of property. The court first holds that although the contractor was not an "owner" of the facility, the contractor had sufficient control to incur operator liability under CERCLA §107(a)(2), which attaches when a defendant's activities produce contamination while it has authority to control the operation of the site. The court concludes that "disposal" in CERCLA §101(29) is not limited solely to the initial introduction of hazardous contaminants onto property.

The court next holds that the contractor may be liable as a transporter under CERCLA §107(a)(4) for transporting hazardous material to an uncontaminated area, regardless of whether the material was conveyed to a separate parcel of land. Finally, the court holds that since the contractor, as a third-party defendant, qualified as an operator and as a transporter, the developer alleged facts sufficient to state a claim against the third-party defendant.

Counsel for Defendants-Appellees
Howard M. Hoffman
8880 Cal Ctr. Dr., Ste. 165, Sacramento CA 95826
(916) 368-6000

Counsel for Plaintiff-Appellant
Sanford Svetcov
Landels, Ripley & Diamond
Hills Plaza, 350 Steuart St., San Francisco CA 94105
(415) 788-5000

Before Kozinski and Rea,^* JJ.