Eleventh Circuit Holds that EPA Superfund Remedial Actions are Usually Entitled to the FTCA “Discretionary Function” Exemption

Three judges sitting behind the bench

Anthony B. Cavender discusses the case Gadsden Industrial Park LLC v. United States of America, CMC Inc., and Harsco Corporation.

February 18, 2019
Anthony B. Cavender - Gravel2Gavel

An unusual Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, known also as Superfund) remedial action has resulted in a broad ruling that Environmental Protection Agency (EPA) remedial actions and their implementation by EPA contractors may be entitled to broad protection from liability insofar as the Federal Tort Claims Act (FTCA) is involved. The case is Gadsden Industrial Park LLC v. United States of America, CMC Inc., and Harsco Corporation, an unpublished opinion released by the court on November 30, 2018.

After the Gulf States Steel Corporation, the owner and operator of a former steel manufacturing facility located in Gadsden, AL, declared bankruptcy, in 2002, Gadsden Industrial Park LLC (Gadsden) purchased 434 acres of the 761 acre site, as well as assets located in what is described as the “Excluded Real Property”—recyclable materials generated in the steel making process known as “kish” and “slag,” and a track of a railroad line located in this area. However, in the 2007 or 2008, the Eleventh Circuit observes, EPA began a CERCLA remedial cleanup action on the Excluded Real Property and barred Gadsden from entering the Excluded Real Property to make use of its new assets.

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com



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