ELR Citation: ELR 21517
No(s). 86-2229 (E.D. Pa. Apr 29, 1992)

The court holds that the federal government did not become an "operator" under §107(a)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of a railroad yard contaminated with polychlorinated biphenyls (PCBs), and therefore did not subject itself to liability under that section when it conducted environmental cleanup activities. First, the court holds that federal sovereign immunity under CERCLA §120(a) is waived only expressly and cannot be implied. Although the United States could be held liable if it were an owner, operator, transporter, or one who arranged for disposal under CERCLA §107(a)(1-4), the court holds that the U.S. Environmental Protection Agency's (EPA's) cleanup efforts did not qualify the United States as an operator. Instead, EPA acted in its regulatory and remedial capacity under the statutory authority of CERCLA. When EPA undertakes response actions under CERCLA, it is not acting like any other nongovernmental entity. Further, Congress specifically sought to insulate the government from liability in contribution for its response activities. The court holds that the United States has not waived its sovereign immunity and thus is immune to liability.

[Previous decisions relating to this litigation are located at 19 ELR 20265 and 21 ELR 20184.]

Counsel for Plaintiff
Christopher S. Vaden
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Roger F. Fox
Blank, Rome, Comisky & McCauley
Four Penn Center Plaza, 10th-14th Fls., Philadelphia PA 19103
(215) 569-5500

David Richman
Pepper, Hamilton & Scheetz
300 Two Logan Sq., 18th & Arch Sts., Philadelphia PA 19103
(215) 981-4000

David G. Mandelbaum
Ballard, Spahr, Andrews & Ingersoll
1735 Market St., 51st Fl., Philadelphia PA 19103
(215) 864-8100

G. Daniel Bruch, David C. Landen
Swartz, Campbell & Detweiler
1700 Land Title Bldg., 100 S. Broad St., Philadelphia PA 19110
(215) 564-5190