Complaints Are Not Totally Meaningless: A CERCLA Plaintiff Must Allege Disposal Against a Former Owner

I know it may surprise some litigators, but occasionally the allegations in a complaint do matter.  In Garrett Day v. International Paper, the Court dismissed CERCLA claims brought by the current owner of a former paper mill located in Dayton, Ohio, ohioagainst alleged former owners.  The opinion covers a lot of issues, but the most important is the distinction between “release” and “disposal” under CERCLA.  While most of the elements of CERCLA liability focus on whether a “release” occurred, liability may be imposed against a former owner only if the defendant owned the facility “at the time of disposal of any hazardous substance.”

The definition of “release” includes a range of passive events.  However, a “disposal requires evidence of ‘active human conduct.’”  The Court cited a number of cases holding that passive releases do not constitute disposal.  Because the complaint contained “no factual allegations … to support a finding that, as the result of ‘active human conduct,” any hazardous substance was discharged,…” and because the “[c]omplaint simply alleges that hazardous substances were used in the paper-making process, and were later found at the Site,” the Court allowed the defendants’ motion to dismiss.

The Court did dismiss without prejudice and allowed the plaintiff 20 days to refile.  The plaintiff should be able to draft a complaint that meets the pleading requirements of Rule 12.  Even so, this case is a victory for the defendants, as well as for the proposition that, at the very least, complaints have to include allegations sufficient to give the defendant some idea of the plaintiff’s theory of liability.

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