Without widespread alarm, the United States District Court for the Central District of California rejected a plaintiff’s claim this past October for reimbursement of millions of dollars in the CERCLA cost-recovery case, California Department of Toxic Substances Control v. NL Industries, Inc., ___ F. Supp. 3d ___, No 2:20-CV-11293-SVW-JPR, 2022 WL 14769903 (C.D. Cal. Oct. 20, 2022). The implications of this decision, however, could echo loudly in future CERCLA cost-recovery actions, as the decision defines a new standard for establishing the causation prong in such an action.
In NL Industries, the remediation costs stem from lead contamination from a former Exide plant near Los Angeles, where lead-acid batteries were recycled for more than 100 years. The cleanup area extends 1.7 miles around the plant. The immediate 0.5-mile radius is an industrial area, while the remaining cleanup area is residential. The California Department of Toxic Substances Control (the Department) has remediated nearly 4,000 properties so far, with cleanup scheduled to continue until the fall of 2025 for a total of 6,000 properties. The state has designated $700 million for the cleanup and has estimated that an additional $150 million will be needed to complete the cleanup. EPA has indicated that it would consider listing the site on the Superfund National Priorities List — a move that could provide millions of dollars and expedite cleanup.
Judge Stephen Wilson held a three-day bench trial to “resolve a question as to CERCLA’s third prong: whether releases from the [Exide Plant] caused [the Department] to incur response costs,” with the narrower question being “whether the costs [the Department] incurred in responding to contamination in the Residential Areas were attributable to the [Exide Plant].”
The court held that the Department did not meet its burden “in showing that the entirety of the 1.7-mile radius could have been contaminated, and certainly not in amounts that would have caused [the Department] to incur response costs in the Residential Areas” or “in showing that discrete portions of the Residential Areas were contaminated.” The court rejected the Department’s claim that the plant’s operators were liable for response costs stemming from the facility’s releases.
The court’s reasoning centered on rejecting speculative evidence in favor of establishing “plausibility” that contamination in particular places was caused by releases from the plant: “[the Department’s] largely speculative evidence establishes, at most, that an undetectable amount of lead landed in some undefined parts of [the 1.7-mile radius] . . . . This speculation is insufficient to establish the required nexus between the [Exide] Plant’s releases and the cleanup costs [the Department] incurred throughout the Residential Areas.”
Implications for Future Cases
The court’s opinion extensively discusses CERCLA causation case law, finding that courts have struggled to articulate a clear causation standard for CERCLA’s requirement that there be a nexus between a hazardous substance release and the response costs incurred. Yet despite CERCLA’s liberal construction and Congress’ underlying intent for the law, the NL Industries court refused to embrace a relaxed causation standard: “CERCLA’s broad remedial purpose does not empower the Court to water down causation to mere possibility.”
Plaintiffs in CERCLA cost-recovery actions will need to be more vigilant about establishing causation. Since they may now need to prove that certain releases “plausibly” caused contamination in specific areas, future litigation will feature a greater emphasis on site testing and analysis of site characteristics, such as site geology. Indeed, such a heightened analysis played a role in NL Industries. Unlike CERCLA cases involving contaminated water bodies, where contaminants can plausibly spread, NL Industries involved soil migration. Analyzing the area’s geography, the court explained that the specific location of contamination “was critical because, once airborne lead particles landed in the soil, there was no evidence that lead continued to propagate throughout the Residential Areas.” Thus, there was insufficient evidence that the lead could have traveled to cause contamination in another area.
Future cases will especially require heightened analysis for proving causation when it comes to hazardous substances that occur naturally in the environment, such as the metals lead, barium, and arsenic.
Attorneys in Taft’s Environmental practice group are continuing to closely monitor developments surrounding CERCLA law. For help navigating CERCLA liability and remediation, contact Taft attorneys Frank Deveau and Tommy Sokolowski.