ELR Citation: ELR 21401
No(s). WN 89-2898 (D. Md. Apr 30, 1991)

The court holds that the United States and Maryland are immune from contribution actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) based on their activities in cleaning up a hazardous waste site. Defendants allege that the governments are liable under CERCLA §107(a)(3) because they arranged for contractors to spray hazardous substances over the facility. While the Environmental Protection Agency (EPA) or a state can be held liable under CERCLA §107 when it acts as an owner, operator, transporter, or generator, several courts have held that CERCLA §120 does not waive the federal government's sovereign immunity when it is cleaning up a hazardous waste site. Further, interpreting CERCLA §§101(20)(D) and 120(a)(1) as waivers of sovereign immunity for EPA and the states in carrying out their cleanup duties would contradict CERCLA's purposes. Such an interpretation would also create a new defense whenever EPA or a state initiates a cleanup action, while CERCLA liability is subject only to the defenses in §107(b).

Counsel for Plaintiff
Robin Lancaster, Jon M. Lipschultz
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

J. Joseph Curran Jr., Attorney Gen.; Catherine M. Flanagan; Michael C. Powell
Office of the Attorney General of Maryland
Munsey Bldg., Calvert & Fayette Sts., Baltimore MD 21202
(301) 576-6300

Counsel for Defendants
Warren K. Rich, Frank E. Couper
Rich, Tucker & Rice
93 Main St., Ste. 300, P.O. Box 589, Annapolis MD 21401
(301) 269-8034

William N. Hedeman, Robert Brager, Paul E. Hagen
Beveridge & Diamond
1350 I St. NW, Ste. 700, Washington DC 20005
(202) 789-6000