Trial News

The Fourth Circuit has ruled that defendants in toxic tort cases are strictly liable for hazardous waste cleanup costs whether or not they knew that the waste they arranged for disposal was hazardous (68th St. Site Work Grp. v. Alban Tractor Co., Inc., No. 23-1155 (4th Cir. 2024)).

The 68th Street Site Work Group—a conglomeration of seven landfills in Baltimore County, Md.—accepted waste from the late 1940s to the late 1970s, including industrial and commercial waste containing hazardous materials that contaminated soil, groundwater, wetlands, creeks, and rivers. In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §9601 et seq.—colloquially, the “Superfund Act”—to ensure prompt, effective cleanup of waste disposal sites and to hold parties who dispose of hazardous waste liable for cleanup and remediation costs. The 68th Street Group filed suit in 2021 under the Superfund Act, alleging that the 156 defendants that had used the dump site incurred liability by arranging for the disposal of waste there. The plaintiff demanded reimbursement for past and future cleanup efforts.

Of those defendants, 31 filed either a motion to dismiss or both a motion to dismiss and a motion for summary judgment in district court. That court dismissed the claims against the 31 defendants, saying that the complaint did not state that the defendants knew their waste was hazardous. (68th St. Site Work Grp. v. Airgas, Inc., 2021 WL 4255030 (D. Md. Sept. 16, 2021).) The plaintiff appealed.

Vacating and remanding the district court’s findings, the Fourth Circuit looked to the language in CERCLA’s arranger-liability provision, which requires that the plaintiff show that defendants “arranged for disposal . . . of hazardous substances” (42 U.S.C. §9607(a)(3)). The unanimous three-judge panel found that the district court erred when it ruled the 68th Street Group needed to show that the defendants intended to dispose of waste, as well as intended to dispose of hazardous waste.

The court noted that “arrange” implies action directed to a specific purpose, so “the arranger-liability provision is susceptible to two possible readings. The provision could be read to require intent to dispose of waste, or it could be read to require both intent to dispose of waste and the knowledge that the waste is hazardous.” It continued, “Had Congress intended to include a knowledge requirement as part of arranger liability, it easily could have done so by imposing liability on a party who, for example, ‘arranged for disposal . . . of a substance it knew or should have known was hazardous.’ But Congress did not do so.”

“The Fourth Circuit made it abundantly clear that requiring a plaintiff to allege that a defendant knew its waste was hazardous is not the standard under CERCLA,” said Gary Justis of Crested Butte, Colo., who represents the plaintiff. “CERCLA was intended to ensure that polluters would pay for damage they’d done to the environment—whether they knew or not that their waste was hazardous. Had the district court’s decision not been challenged or upheld on appeal, it would have been the most extreme change to CERCLA, making it nearly impossible to prove that any entity knew its waste contained hazardous material.”