Private Automobile Is Not A CERCLA Facility
EMERGENCY SERVICES BILLING CORPORATION, INC. v. ALLSTATE INSURANCE CO. (February 2, 2012)
Westville, Indiana's Volunteer Fire Department responds to car accidents when there is a hazardous material release. It incurs response costs when it does. In order to recover those costs, it brought suit (actually, its billing agent did) against several insurance companies who insured the owners of four vehicles that were involved in such accidents. It based its suit on the CERCLA's cost recovery provisions. Judge DeGuilio (N.D. Ind.) dismissed the complaint on the ground that none of the automobiles involved in the accidents was a "facility" under CERCLA. The Department appeals.
In their opinion, Seventh Circuit Judges Bauer, Flaum, and Sykes affirmed. The Court noted that CERCLA does allow a responder to a hazardous material situation to seek cost recovery action from a facility owner. The only issue on appeal was whether the automobiles involved in the accidents fall within the statute's definition of "facility.” The definition specifically includes motor vehicles but then excludes "any consumer product in consumer use." The Court first ruled that the Department did not waive its contention that "consumer product" was ambiguous. Although it is true that the Department did not use the word ambiguous until after dismissal in the district court, it has always pushed the court to use outside sources in interpreting a statute. Since the district court could only use those sources if the statute was ambiguous, the Court, particularly on the record before it, concluded that there was no waiver. The Court agreed with the district court that the statute was unambiguous. Although “consumer product” is not defined in the statute, the Court concluded that the dictionary definition made that term clear and unambiguous. It rejected the defendants' argument that the Consumer Product Safety Act's specific exclusion of motor vehicles from the definition of "consumer product" was evidence that the term has two different meanings. The Court pointed out that the CPSA excludes motor vehicles not because of a different understanding of what a consumer product is but because motor vehicles are regulated by different agencies. Having concluded that the automobiles at issue are not covered by the term "facility" in CERCLA, the Court nevertheless alternatively approached the same question as if "consumer product" was ambiguous. It considered the extrinsic materials, including EPA guidance, offered by the defendants and came to the same conclusion -- a private person's automobile is not a "facility" under CERCLA.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select