## Facts

- Borden operated a phosphate fertilizer plant on a 114-acre tract in Texas City, Texas, generating large quantities of phosphogypsum disposed on-site in a pile covering about 35 acres.
- Borden also deposited more radioactive sludges and scales into the pile, creating localized high-radiation areas, and left “off-pile” radioactive wastes near a junkyard and abandoned buildings, with some locations exceeding 500 times background radiation.
- During negotiations for purchase, Amoco and Borden discussed a lower “as is” price versus a higher price if Borden removed the phosphogypsum; Amoco bought the property “as is.”
- After the purchase, a state agency informed Amoco of radioactivity at the site; Amoco retained consultants to evaluate radiological conditions and site geology and hydrology.
- Reports confirmed elevated radiation; Amoco fenced and guarded the site and did not use it.
- Amoco estimated permanent remediation would cost roughly $11–$17 million and sued under CERCLA for declaratory relief and recovery of response costs.

## Issues

1. Whether Amoco proved a CERCLA “release or threatened release” sufficient to trigger liability, or whether any detectable release automatically establishes liability.
2. Whether the district court erred by relying primarily on a single federal uranium standard rather than considering other applicable or relevant and appropriate requirements (ARARs), including standards addressing other radionuclides.
3. Whether Amoco’s investigation, security, and remedial-planning expenditures were “necessary” response costs caused by the release or threatened release and consistent with the National Contingency Plan.

## Decision

- The Fifth Circuit reversed the judgment for Borden and remanded for a determination of recoverable damages.
- The court held Amoco satisfied CERCLA’s private cost-recovery elements: the site was a facility; there was a release or threatened release of hazardous substances; Amoco incurred response costs because of that release or threat; and Borden was a covered person as a former owner/operator at the time of disposal.
- The court rejected the rule that CERCLA liability attaches upon release of any quantity of a hazardous substance, but concluded the radioactive contamination and associated risks here exceeded a trivial level and met the statutory threshold.
- The court found the district court’s focus on a single numeric benchmark too narrow where other relevant standards and the evidence showed significant contamination and a need for response.

## Legal Principles

- In a private CERCLA § 107(a) action, the plaintiff must show: (1) a facility, (2) a release or threatened release of a hazardous substance, (3) causation of response costs, and (4) defendant’s status as a covered person.
- CERCLA liability does not arise from every detectable release; the release or threatened release must be meaningful in light of the risk presented and the regulatory requirements used to evaluate protectiveness.
- Determining whether response is required may depend on ARARs; courts should evaluate relevant environmental standards rather than relying on a single selected benchmark.
- A former owner/operator may be liable for response costs for hazardous substances disposed during its operation, even if the property was later sold “as is.”
- Site investigation and related measures taken in response to discovered contamination can qualify as recoverable response costs when they are necessary and consistent with the National Contingency Plan.

## Conclusion

The Fifth Circuit held Borden liable under CERCLA for radioactive wastes left from its fertilizer operations, ruling that Amoco established a release or threatened release causing necessary response costs, while clarifying that CERCLA does not impose liability for merely any detectable quantity of hazardous substance and that ARARs must be considered in evaluating the need for cleanup.


Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir. 1989)