Seeing the Forest for the Trees in CERCLA Liability

Abstract

The determination of CERCLA liability for corporate subsidiaries, individual corporate actors, lenders, and others who do not actually own or operate a hazardous waste site has proven to be a particularly vexing problem. Cases dealing with these categories of individuals or companies present different fact patterns and have, for the most part, each been subject to a separate analysis for liability. Thus, for example, one finds that cases involving corporate actor liability are based on the case law concerning corporate actors, and cases involving lender liability are based on the case law for this category of individual or institution. The result is a confusing array of separate liability rules for corporate subsidiaries, individual corporate actors, lenders, and other involved parties. By surveying all these categories of liability cases, the authors demonstrate that the confusion is replaced by the revelation that general liability principles, do, in fact, exist. First, CERCLA liability extends to those who directly manage the general business operations. Second, liability will reach all those who assume and exercise responsibility for handling hazardous substances. Analyzing the case law from the standpoint of these two principles will demystify the subject of CERCLA liability and provide greater certainty for all parties who face the potential risk of liability under the statute.

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