New CERCLA Amendments Offer Liability Protection to Certain Generators of Municipal Solid Waste

Alexa Richman-La Londe
Riker, Danzig, Scherer, Hyland &
Perretti LLP
Morristown, New Jersey
alalonde@riker.com

The Small Business Liability Relief and Brownfields Revitalization Act (Act) signed into law by President Bush on Jan. 11, 2002 codifies a defense to CERCLA liability for certain generators of municipal solid waste (MSW). In essence, the amendment adopts EPA's regulatory stance toward generators of MSW. Now, statutorily, some generators of MSW have a defense CERCLA liability and will be compensated for their defense costs if eligible for the defense and sued by a non-governmental party.

MSW generators who are eligible for the exemption include the owner, operator or lessee of residential property, small business entities that for the 3 taxable years prior to receiving a notice of potential responsibility (PRP notice) employed less than 100 full-time individuals, and small non-profit entities that employed fewer than 100 employees the taxable year prior to receiving a PRP notice.

Under the Act, MSW is defined as household waste. Included are wastes generated by commercial, industrial, or institutional entities that are essentially the same as household waste, are collected and disposed of with other MSW and contains no quantity of hazardous substances greater that the quantity typically found in household waste. MSW does not include combustion ash produced by resource recovery facilities or waste from manufacturing or processing operations that is not essentially the same as household waste.

The exemption will not apply if the MSW has contributed significantly or could contribute significantly, either individually or in the aggregate, to response costs or natural resource restoration. Moreover, the exemption will not apply if the generator failed to comply with requests for information or if the generator impedes, through action or inaction, the response action or natural resource restoration.

In contribution actions, plaintiffs have the burden of establishing that the generator defendant is not eligible for the MSW exemption. And, as referenced above, if the plaintiff is unsuccessful, it will have to pay all of the defendant's reasonable costs of defense, including attorneys' and expert witness fees.