Who qualifies as an “operator” under CERCLA and the Texas SWDA?

CERCLA defines an “operator” in a circular manner as “any person ... operating” a facility.  In United States v. Bestfoods, the Supreme Court stated that “under CERCLA, an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility.”  

To be held liable for remediation costs, an operator 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 CERCLA likewise defines an “operator” in a circular manner as “any person ... operating” a facility.

In United States v. Bestfoods, the Supreme Court stated that “under CERCLA, an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility.”  A court must decide whether an entity is an operator after considering the totality of the circumstances concerning its involvement at the site.

The Ninth Circuit held that to be an “operator” of a hazardous waste facility, a party must do more than stand by and fail to prevent contamination.    Operator status means that a party must play an active role in running the facility, typically involving hands-on, day-to-day participation in the facility’s management.   Based upon this authority, a Texas district court likewise held that a pipeline easement holder did not qualify an “operator” where there was no evidence that the easement holder played an active role in operating the pipeline that leaked.

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