As most of our readers know, the Resource Conservation and Recovery Act (RCRA)gives the EPA control over the generation, transportation, treatment, storage, and disposal of hazardous waste, often described as “cradle-to-grave” coverage of hazardous wastes. One of its provisions, 42 U.S.C. § 6972(a)(1)(B), allows any person to bring suit against another “who has contributed . . . to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.”
In National Exchange Bank and Trust v. Petro-Chemical Systems, Inc., et al., Case No. 11-CV-134 (E.D. Wisc. Dec. 3, 2012), plaintiff NEBT retained defendant Petro-Chemical to conduct tightness testing of an underground fuel oil storage tank. Petro-Chemical subcontracted to Tankology, who was alleged to have improperly reconnected certain piping after testing, resulting in a spill of the fuel oil. NEBT contended that Petro-Chemical was liable because it subcontracted the work and failed to inspect the tanks after Tankology completed its testing. On summary judgment, Petro-Chemical argued to the contrary; since it did not perform the testing and had not otherwise generated or handled the oil, it did not “contribute” to the spill.
Notwithstanding the fact that courts have held that the term “contributed” is to be liberally construed, the District Court agreed with Petro. Even under the broadest interpretation, the Court rejected the idea “that Congress intended the term ‘contributed’ to be an invitation to string together an expansive causal chain of tangential defendants.” Thus, distingishing the instant action from one in which the contractor or hiring party generated the waste, “a contractor like Petro-Chemical is not liable under the RCRA simply because it hired an allegedly malfeasant subcontractor.”