957 F.3d 395
3d Cir.2020Background
- From ~1915 to 1963 a Jersey City plant (then NPRC, later PPG) produced chromium chemicals; production generated large outdoor stockpiles of chromium-laden waste that contaminated soil and groundwater.
- During WWII the federal government designated chromium chemicals critical and exercised broad wartime controls: price and raw-material allocation, production directives, labor initiatives, and proposals (but not proven purchases) to subsidize or buy waste sludge.
- NPRC adopted a quicker, more wasteful process in 1944 that increased waste; record shows NPRC chose and implemented waste-handling practices (stockpiling outdoors) both before and after the wars.
- PPG bought the site in 1954, conducted operations through 1963, and since 1990 has spent hundreds of millions to remediate contamination.
- PPG sued the United States under CERCLA §107(a) seeking contribution/recovery for cleanup costs, arguing the Government was a past “operator” during the wars; after discovery both parties moved for summary judgment.
- The District Court granted summary judgment for the Government, finding its wartime involvement was industry-wide influence, not control over pollution-related operations; the Third Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper legal standard for past-operator liability under §107(a)(2) | Bestfoods is inapplicable to the government; FMC’s "actual control/substantial control" test should govern | Bestfoods’ definition (operator = one who manages, directs, or conducts pollution-related operations) applies generally, including to the government | Court: Bestfoods governs; operator means control over operations specifically related to pollution or compliance decisions |
| Whether the Government was a past operator of the site during WWI/WWII | Government directed production increases and wartime controls caused more waste, so it effectively operated the facility and is liable | Government’s measures were industry-wide wartime controls (prices, allocation, labor guidance); there is no evidence it managed, directed, or conducted pollution or waste-disposal operations at the plant | Court: Government was not an operator—its wartime influence did not amount to control over pollution-related operations; summary judgment for Government affirmed |
Key Cases Cited
- United States v. Bestfoods, 524 U.S. 51 (1998) (operator means one who manages, directs, or conducts operations specifically related to pollution or compliance)
- FMC Corp. v. United States Dep’t of Commerce, 29 F.3d 833 (3d Cir. 1994) (en banc) (applied an "actual/substantial control" test and found government liable where it exercised day-to-day control including waste-related activities)
- Litgo N.J., Inc. v. Comm’r N.J. Dep’t of Envtl. Prot., 725 F.3d 369 (3d Cir. 2013) (applied Bestfoods outside parent-subsidiary context and emphasized focus on pollution-related operations)