By Steven M. Siros, Partner, Jenner & Block
A federal district court refused to dismiss a lawsuit alleging CERCLA liability on the part of several environmental contractors that performed an environmental assessment and cleanup of a contaminated property. In Bancorpsouth Bank v. Environmental Operations, Inc., et al. (Free Download), Bancorpsouth filed a CERCLA cost recovery lawsuit against several environmental contractors that were involved in the remediation of a contaminated site. Bancorpsouth alleged that the contractors had known since at least 2001 that there were hazardous materials on the property and that the contractors "engaged in the deliberate disturbance, unearthing, spilling, moving and re-releasing" of these hazardous materials on the site. Furthermore, Bancorpsouth alleged that the contractors failed to properly design and carry out the construction of an engineered cell on the site and to adequately screen materials from the dirt on the site prior to the dirt being spread around the site as fill. The contractors moved to dismiss the complaint, arguing that Bancorpsouth had failed to allege that they fell within any of the categories of CERCLA responsible parties or that they had actual control or the authority to control any of the environmental operations on the site.
In refusing to grant the contractors' motion to dismiss, the court found that Bancorpsouth's failure to identify a specific category of CERCLA responsible party was not fatal to its CERCLA claims. Instead, the court it sufficient that the complaint alleged that the contractors knew that the site was contaminated and that they deliberately disturbed those contaminated materials. With respect to Bancorpsouth's failure to allege that the contractors had actual control or the authority to control, the court noted that "while discovery may reveal that the [contractors] had no authority to control the handling of the hazardous materials on the property", the allegations in the complaint were sufficient to place the contractors on notice of the CERCLA claims against them.
(Lexis.com subscribers can access the Lexis enhanced version of the BancorpSouth Bank v. Envtl. Operations, Inc., 2011 U.S. Dist. LEXIS 117010 (E.D. Mo. Sept. 30, 2011) decision with core terms, case law links, and Shepard's.)
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