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Private Passenger Motor Vehicles Involved in Automobile Accidents Are Not “Facilities” Under CERCLA

04.01.2010

Emergency Services Billing Corporation (“ESBC”) offers services as a billing agent for paid and volunteer fire departments to seek the expenses incurred by them when dispatched to vehicular accidents. The Westville Volunteer Fire Department responded to several vehicular accidents which allegedly presented the potential for a fire and the release, or potential release, of hazardous materials into the air. When the drivers of the vehicles, and their insurers, refused to pay some or all of the invoices for Westville Volunteer Fire Department’s services of traffic control, response to the accidents, and assessing “the potential release of hazardous materials into the air,” ESBC filed a lawsuit against the owners of the vehicles and their insurers under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”).Emergency Services Billing Corporation, Inc. v. Allstate Insurance Co., et al., No. 4:09-cv-45-RL-APR (N.D. Ind. March 19, 2010).

In order to establish liability under CERCLA, a private plaintiff must show that the site is a “facility” and that the defendant is a responsible person for the release or threatened release of a hazardous substance that caused the plaintiff to incur responses costs. The Defendants moved to dismiss the Plaintiff’s Complaint on the basis that the vehicles did not constitute “facilities” under CERCLA.

Although “facility” is broadly defined under CERCLA, which definition expressly includes the term “motor vehicle,” CERCLA also contains an exclusion to the definition of “facility” for “any consumer product in consumer use.” 42 U.S.C. § 9601(9). However, the statute does not define “consumer product” and Congress did not discuss the consumer product exception to any significant degree when adopting the language. Therefore, the District Court was required to interpret the term “consumer product.”

ESBC argued that negligently operated motor vehicles involved in accidents are not “consumer products in consumer use.” The District Court disagreed. Referring to the definition of “consumer product” found in Black’s Law Dictionary and the Magnuson-Moss Warranty Act of “tangible personal property which is distributed in commerce and which is normally used for personal, family or household purposes,” the District Court found that a personally owned vehicle is a consumer product.

ESBC cited to the Consumer Product Safety Act’s definition of “consumer product” as any article produced or distributed for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise. The District Court found that the personal motor vehicles at issue in the lawsuit would still be deemed consumer products under that definition. Because the definition of consumer products under the Consumer Product Safety Act excluded from the definition motor vehicles, as defined by the National Traffic and Motor Vehicle Safety Act, ESBC argued that motor vehicles similarly would not fall within the term of “consumer products” under CERCLA. The District Court dismissed this argument, stating that Congress could have excluded motor vehicles from CERCLA’s consumer product exception if it had wanted to do so. Furthermore, motor vehicles are not included in the Consumer Product Safety Act because safety standards for motor vehicles are enacted under the National Traffic and Motor Vehicle Safety Act.

The District Court further noted that the Environmental Protection Agency, in its discussion of a proposed rule (adopted at 40 C.F.R. §302.3) concerning the consumer products exception to the definition of facility under CERCLA, stated that “the Consumer Product Safety Act defines that term as, generally, any article sold to a consumer for the person’s use, consumption or enjoyment in or around a household, residence, school, in recreation or otherwise” and that “[t]his definition will apply for notification under CERCLA.” 48 Fed.Reg. 23552-01, 23553 (May 25, 1983). Congress has not amended CERCLA since the adoption of this regulation.

The District Court dismissed the Complaint, finding that “’consumer product in consumer use’ refers to its ordinary meaning, which includes the private passenger motor vehicles specifically at issue in this case being used for personal purposes.” The issue not addressed by this decision is whether company-owned automobiles, as opposed to semi-trucks or tanker trucks, used by employees will fall within the definition of a consumer product in consumer use. Certainly corporations can be and are consumers of automobiles. However, the fact that the consumer product is used by a corporation, as opposed to an individual, may be sufficient to distinguish the use and to find that the automobile is a “facility” under CERCLA.

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