CERCLA Affirmative Defenses Broadly Construed by Second Circuit.  Does the Same Apply to OPA's Affirmative Defenses?

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), strict liability for hazardous waste cleanup is imposed on owners and facility operators, on certain persons who arrange for the disposal or treatment of hazardous waste, and on certain persons who transport hazardous waste. 42 U.S.C § 9607(a)(1) - (4). The Oil Pollution Act of 1990 (OPA) imposes strict liability on those responsible for the discharge of oil or the substantial threat of discharge of oil "into or upon the navigable waters or adjoining shorelines" of the United States. 33 U.S.C. § 2702. The liability provisions of OPA were largely modeled after those of CERCLA. In fact, OPA and CERCLA share the following affirmative defenses to strict liability: (1) an act of God, (2) an act of war, or (3) a third party not in a contractual relationship with the responsible party. 33 U.S.C. § 2703, and 42 U.S.C. § 9607.

In a decision dated May 2, 2014, the United States Court of Appeals for the Second Circuit addressed the scope of the "act of war" defense in the context of CERCLA. In In re September 11 Litigation, case no. 10-4197 (May 2, 2014), a real estate developer sought remediation costs under CERCLA from the owners and lessees of the World Trade Center, and the owners of the airplanes that crashed into it. The costs were incurred in renovating a building which was contaminated by substances from the World Trade Center. In evaluating whether the "act of war" defense applied to bar the real estate developer's claims, the Second Circuit considered the purpose of CERCLA: to ensure that the costs of cleanup of hazardous wastes are borne by those responsible for the contamination. The court concluded that "that purpose, however broad, is not advanced here by imposing CERCLA liability on the airlines and the owners (and lessors) of the real estate" because the defendants did not have control over the buildings and airplanes, and could not have taken any measures to prevent contamination. The court also relied on the express recognition by Congress and the President that the September 11 attacks were an "act of war." As such, the Second Circuit held that the September 11 attacks were acts of war "solely for purposes of construing CERCLA's affirmative defenses." This is a clear departure from the narrow interpretation applied to CERCLA's affirmative defenses in the past.

This decision raises questions as to what affect this will have on the interpretation of OPA. Will courts evaluating OPA follow the Second Circuit and more broadly construe OPA's affirmative defenses? Given the similarity in the construction of OPA and CERCLA, courts interpreting OPA commonly look to CERCLA jurisprudence for guidance. See United States v. Viking Res., Inc., 607 F. Supp. 2d 808, 831 (S.D. Tex. 2009)("Courts interpreting OPA's removal cost provisions, which are comparable to CERCLA's response cost provision, have similarly looked to CERCLA jurisprudence for guidance"); see also Apex Oil Co. v. United States, 208 F. Supp. 2d 642 (E.D. La. 2002)("The close analogy to the OPA found in cost recovery actions under section 107 of [CERCLA]…cannot be ignored.") In light of the long line of cases narrowly construing OPA's affirmative defenses, it remains to be seen whether the Court's decision in In re September 11 Litigation will be limited to matters relating to the September 11 attacks, or whether courts will begin to more broadly construe OPA's affirmative defenses.

To read a copy of the Second Circuit Court of Appeals' Decision in In re September 11 Litigation, case number 10-4197, click here.

For more information about OPA or CERCLA, please do not hesitate to call on us at

Chalos & Co, P.C.
International Law Firm

© 2016 Chalos & Co, P.C. Site by Webline Designs