Operator liability for directors and officers under CERCLA

Abstract

CERCLA Section 107(a) imposes liability on “operators”; of facilities where there has been a release or threatened release of hazardous substances. However, CERCLA contains no clear definition of “operator.”; Therefore, it has been left to the courts to interpret the term. Courts dealing with issues of corporate director and officer liability under CERCLA Section 107(a) have differed in their approach to such liability. Some have determined that CERCLA does not change the traditional rule of corporate liability, holding that directors or officers are liable only if they were directly involved in the disposal activity leading to the release or threatened release. Others have found liability where directors or officers exercised control over the facility where the release or threatened release occurred, even if they had no involvement in or awareness of the actual disposal activities. A third group has found liability where officers or directors had the capacity to control disposal activities, even if that capacity was unexercised.