Who is subject to liability under CERCLA and the Texas SWDA?

Both CERCLA and the SWDA impose strict liability on four classes of responsible persons (i.e. owners, operators, arrangers, and transporters) without fault.   One court noted that CERCLA does not “listen to pleas of ‘no fault’ and can be terribly unfair in certain instances in which parties may be required to pay huge amounts for damages to which their acts did not contribute.”   That is because liability under both CERCLA and the SWDA hinges on status, not culpability.  In an effort to escape liability, defendants often claim that they simply do not fit within one of the four categories.

It should be noted that the Fifth Circuit has not addressed whether a “strict liability” standard also applies to RCRA claims or whether the plaintiff in a RCRA suit must establish some level of causation between the defendant and the contamination in order to prevail under the “contributing to” provision of RCRA.    However, at least one Texas district court that has discussed this issue required the plaintiff to establish at least some level of causation between the defendant’s actions and the contamination in order to prevail under RCRA. 

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