Legal and Regulatory

Contractors and Engineers Face Environmental Vulnerability Under CERCLA

Because contractors and engineers can be liable for moving contaminated soil and debris, they should look for a contract that specifies the scope of work and removes them from the classifications of responsible parties under CERCLA.
By Steven L. Hoch
September 28, 2018
Legal and Regulatory

On any significant construction site, it is inevitable that soil and debris are moved from place to place. Of course, numerous construction trades are involved in deciding that this movement should take place, including civil engineers, mechanical engineers, architects, geotechnical engineers, contractors, owners and a host of other trades, all of whom (and many more) may prove to be liable for the movement of soil and debris that may, even unknowingly, contain some type of contamination.

This liability stems from the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), known also as Superfund and its state counterparts, because CERCLA has nothing to do with knowing what a contractor did, or even that which the contractor didn’t intend to do. The real threat of falling into the CERCLA web means is that a contractor or engineer may be responsible for the entire cleanup, even if its part was very small.

To be held liable to any other party under CERCLA, a contractor or engineer must first fit the criteria of being a Potentially Responsible Party (PRP). CERCLA § 107(a) lists four broad categories of persons as PRPs. 42 U.S. Code § 9607. These are: Current Owners/Operator, Past Owner/Operator, Arrangers and Transporters. In general, these categories can be summarized as follows:

  • owners and former owners are anyone in the chain of title present or past unless the contamination occurred after their ownership;
  • operators and former operators must manage, direct or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations. But one can be an operator without their knowledge;
  • an arranger is someone who “arranges” for the deposition of contagion, e.g., telling a truck to dump soil at a particular dump site; and
  • a transporter is someone who physically moves the contaminant from one place to another (in the example above the truck driver is a transporter).

The only other significant issue is that there must be a site at which there is actual or threatened release of hazardous substances and that cleanup is required. Release means that the contaminants must impact the environment such as a waterway, adjoining property etc. The courts give a very broad meaning to this term, so it is virtually impossible to claim there was no release.

This issue is not just sophistry but rather it has occurred, and the courts have found CERCLA liability to exist among many types of contractors and engineers. For example:

  • K.C. 1986 Ltd. P’ship. v. Reade Mfg., 33 F.Supp.2d 1143, 1151 (W.D. Mo. 1998) absolute exemption from CERCLA liability does not exist for engineers who conduct pre-acquisition environmental inquiries;
  • Nu-W. Mining Inc. v. U.S., 768 F.Supp.2d 1082 (D. Idaho 2011) government, whose engineer managed design and location of waste dumps for four phosphate ore mines, liable under CERCLA for selenium contamination spread as a result;
  • Ganton Techs., Inc. v. Quadion Corp., 834 F.Supp. 1018, 1022 (N.D. Ill. 1993) rejecting engineer's Motion to Dismiss, although engineer was merely an observer, where engineer "could be liable as 'operators'" because engineer's own reports show that the engineer “actively supervised and directed”;
  • Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338 (9th Cir. 1992) finding excavating and grading contractor who spread hazardous substances around property qualified as an operator; and
  • BancorpSouth Bank v. Envtl. Operations, Inc., 908 F.Supp.2d 1016 (E.C. Mo. 2012 finding contractors for site where hazardous substances were spread as a result of the conduct of contractors created basis for operator liability.

As there is no absolute protection, there are some things that an engineer and/or contractor can do to lower the potential for CERCLA liability. Be careful in contracting and make sure the scope of work specifically removes the company from the classifications of responsible parties under CERCLA. Contractors may use language such as this with the party to whom they are contracting with and while is not necessarily binding on others, a court could look at it and use the language to clarify what the contractor’s role and responsibilities were on the site:

  • Contractor/Engineer is not responsible for the safety program at the Project nor the safety of any contractor, subcontractor or other person;
  • Contractor/Engineer is not responsible for any decisions concerning any aspect of the environmental impact of its scope of work on the project;
  • Contractor/Engineer is not responsible for arranging for, or actually transporting of hazardous substance or waste;
  • limit the agreement to expressly indemnity the contracting party other than any services related to a "Hazardous Environmental Condition" which should be defined. If the contractor has any idea of the type of contaminants that could possibly be encountered add “including but not limited to the contaminant”;
  • include a limitation of liability provision in general and for contaminates specifically;
  • require the owner or his representative to "review all documents or oral reports presented and render in writing decisions pertaining thereto within a reasonable time" so the contractor can attest that the contracting party knew what it knew about hazardous substances.
  • Contractor/Engineer will not assume the status of a generator, storer, transporter or person who arranges for disposal with respect to services at the project under any federal or state law or regulation and that these none of these responsibilities can be assigned from someone else to the contractor.

These are not exclusive, of course, and because there is a wide range of circumstances that differ from site to site, contracting party to contracting party etc., this is not a one-size-fits-all. Take the time to assess the issues and consider the appropriate changes to standard terms and conditions to account for these types of pitfalls. Contact knowledgeable counsel if necessary, but mostly just be aware.

by Steven L. Hoch
Steven Hoch has more than 40 years of experience with both federal and state environmental laws and regulations in the context of permitting, regulatory proceedings, litigation, enforcement actions, water supply, public policy formation and advice. His work includes issues involving contamination of land and ground and surface water, and also has significant experience in hazardous substances and waste handling practices, remediation, soil erosion and claims of toxic exposures.

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