Can excavation contractors dig their way out of Kaiser aluminum's liability pit?

Abstract

The U.S. Court of Appeals for the 9th Circuit's decision in Kaiser Aluminum & Chem. Corp. versus Catellus Dev. Corp. held that an excavation contractor who unknowingly spreads contaminated soil over clean areas of a work site can be held liable for the environmental damage and cleanup costs under the provision of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Subsequent cases have extended the reach of the Kaiser decision, making excavation contractors and even Response Action Contractors increasingly vulnerable to be sued as Potentially Responsible Parties (PRPs). This article briefly examines the case law, then proposes steps a contractor can take to shield itself from liability. If a contractor is nevertheless named a PRP, several defenses are proposed to limit the scope of liability.