ELR Citation: ELR 20760
No(s). s. LR-C-80-109, -110 (E.D. Ark. Oct 12, 1993)

The court holds that the United States is not liable as an operator or an arranger under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for its role in the production of Agent Orange at a facility in Jacksonville, Arkansas. The court holds that the United States cannot be held liable as an operator or arranger, because there is no evidence that the United States actually participated in the actual management or daily operations of the facility. Also, the United States neither supplied, owned, nor possessed the raw materials used to make Agent Orange. The court determines that the authority of the United States to regulate the working conditions of employees at the facility under the Walsh-Healey Act did not give the United States the authority to control the hazardous waste disposal activities required for CERCLA liability. The court also determines that the Defense Production Act of 1950 (DPA) did not give the United States pervasive control over all aspects of the operations and business at the facility. The relationship between the United States and a contractor under the DPA is one of buyer and seller, except that the buyer has the power to require the seller to perform the contract and to give it priority over other contracts.

[Prior decisions in this action are published at 10 ELR 20709, 15 ELR 20002, 21 ELR 20925, and 22 ELR 21210.]

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

Counsel for Defendants
V. Robert Denham Jr.
Powell, Goldstein, Frazer & Murphy
191 Peachtree St. NE, 16th Fl., Atlanta GA 30303
(404) 572-6600