ELR Citation: ELR 20468
No(s). 00-55027 (9th Cir. Feb 11, 2002)

The court affirms in part and reverses in part a district court holding that the U.S. government waived its sovereign immunity under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §120(a)(1), that the government was liable as a CERCLA §107(a)(3) arranger for the disposal of hazardous wastes produced in conjunction with the production of aviation gas during World War II, and that, as such, the government was liable for 100% of the cleanup costs at the site in California where the aviation gas waste was disposed. The court first holds that the United States waived its sovereign immunity under CERCLA §120(a)(1). The U.S. Supreme Court has held that §120(a)(1) is an unambiguous waiver of sovereign immunity, and the waiver is not limitedto nongovernmental activities. Thus, the scope of CERCLA's waiver of sovereign immunity is coextensive with the scope of liability imposed by CERCLA §107(a), and the U.S. government will only be liable under CERCLA when it qualifies as an owner or operator of a facility, an arranger of waste disposal, or an entity that accepts waste for transport. In this case, no such liability applies because the government is not liable as an arranger of the disposal of the aviation gas waste. The United States never directly entered into arrangements to dispose of the aviation gas waste. The court next holds that the government cannot be held liable as a §107(a)(3) arranger under a broader theory of liability for control over disposal of the waste. The United States never owned or possessed or had the authority to control or duty to dispose of the aviation gas waste. Because the United States is not an arranger, it has no liability under CERCLA for the cleanup costs. In addition, the oil companies that produced the aviation gas waste cannot claim the CERCLA §107(b)(2) "act of war" defense as a defense to their liability.

Prior decisions in this litigation are published at 22 ELR 20791, 24 ELR 20877, and 29 ELR 20027.]

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

Counsel for Defendants
Ronald L. Olson
Munger, Tolles & Olson
355 S. Grand Ave., 35th Fl., Los Angeles CA 90071
(213) 683-9100

Fletcher, J. Before Trott and Thomas, JJ.