Bill Penny
Bill Penny

Bill Penny is a Member in the Nashville office of Stites & Harbison. He is a member of the firm's Environmental, Natural Resources and Energy Service Group as well as the Green Industry Practice Group. Bill has more than 25 years experience in environmental law. You can contact him at william.penny@stites.com or by phone at 615-782-2308.

Martin Corinne
Corinne Martin

Corinne Martin is an Associate in the Nashville office of Stites & Harbison. She is a member of the Environmental, Natural Resources & Energy Service Group, the Green Industry Practice Group, and the Business Litigation Service Group. cmartin@stites.com or by phone at 615-782-2218.

cercla

A New Use for CERCLA?

10.26.09 10:51 AM
posted by

The State of Oklahoma has become creative in its efforts to deter poultry producers from depositing poultry waste into the Illinois River Basin. In State of Oklahoma, ex.rel Edmonson v. Tyson Foods, Inc., et seq., the Attorney General of Oklahoma brought a suit pursuant to federal environmental laws against large poultry producers, the likes of Tyson Foods, Cargill Turkey, and others. Specifically, the AG has brought a claim against the defendant poultry producers alleging Comprehensive Environmental Response Compensation and Liability Act (CERCLA) violations, and accordingly contends that the poultry producers "have arranged for the disposal of their poultry waste which contains hazardous substances." 

To succeed on a CERCLA claim, the plaintiff must prove that:
 
The defendant is a "covered person";
There has been a "release" or "threatened release"
Of a “hazardous substance”; and
The "release" or "threatened release" caused the plaintiff to incur costs. 

The use of CERCLA in this situation is unusual,  and it would seem more likely that authorities would proceed under the Clean Water Act to deter such conduct, although they would run into the problem of non-point source regulation... We shall soon find out whether this is, indeed, a new use for CERCLA.  I’ll post a blog when we hear back from the district court.  

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