A little creativity goes a long way and cash-strapped municipal entities need all the creativity they can get. But it doesn’t always put money in your pocket. And such was the result in Emergency Services Billing Corporation, Inc. v. Allstate Insurance Co., No. 11-2381 (7^th Cir. Feb. 2, 2011) which upheld a trial court’s determination that automobiles owned and used for personal purposes are not “facilities” under CERCLA and hence drivers (and their insurance carriers) are not liable for “response costs” incurred in responding to motor vehicle accidents. And thus the Volunteer Fire Department of Westville, Indiana, cannot recoup the amounts it spent in responding to the four separate, unrelated auto accidents that were the subject of the collection efforts.

While this ruling may sound obvious from the start, it really isn’t so because CERCLA defines a “facility” as, inter alia, “any building, structure, installation, equipment, pipe or pipeline . . ., well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft ….” 42 U.S.C. § 9601(9)(A). So now, it seeming as though that fire department is on to something, no? Well, except for this: “consumer product[s] in consumer use” are excluded from the definition of “facilit[ies]” for purposes of CERCLA liability. But, unlike “facility,” “consumer product” is not a defined term within CERCLA. And this is the stuff that lawyers live for.

So, how did the Seventh Circuit resolve it? First, it held that the phrase “consumer product” was not ambiguous and that private cars in private use clearly fall within the “plain meaning” of the phrase. Even if facially ambiguous, though, the Court held that reference to external sources, including definitions of the phrase used in other statutes, provided the same result.

So, if you’re driving your car to the supermarket and you get in an accident, it doesn’t appear that you need to worry about CERCLA. If driving a company car on company business though, that may be a completely different story.

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