Insurance — CERCLA

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United States Court of Appeals For the Seventh Circuit

Civil

Insurance — CERCLA

Motor vehicles for personal use fall under the “consumer product in consumer use” exception to CERCLA’s definition of facility.

“ESBC next argues that since the EPA referenced the entirety of § 2052 in its regulation, the exclusions must be included in the definition of ‘consumer product’ under CERCLA, since the exclusions are contained within § 2052. This interpretation is supported, ESBC contends, by the fact that the EPA decided to drop the use of the word ‘generally’ from its preliminary rule when publishing its final rule. Compare 40 C.F.R. § 302.3 (‘Consumer product shall have the meaning stated in 15 U.S.C. 2052.’) with 48 Fed. Reg. 23552-01, 23553 (‘[T]he Consumer Product Safety Act defines that term as, generally, any article sold to a consumer for the person’s use . . . .’ (emphasis added)). While ESBC is correct that the entirety of § 2052 is cited in the final rule (which includes the motor vehicle exclusion), the very same citation is used in the preliminary rule, in which the EPA refers to the CPSA’s definition generally. Further, § 2052 does not just include the definition for ‘consumer product’; it includes all the definitions for the CPSA. The EPA clearly did not mean for us to look to the definition of ‘Third-party logistics provider,’ for instance, in seeking guidance while interpreting CERCLA. Yet the definition of that term can be found in § 2052. 15 U.S.C. § 2052(a)(16). Thus, we should not read into the fact that the EPA cited the entirety of § 2052 instead of the particular clause where the general definition of ‘consumer product’ is found. The exclusions that accompany the motor vehicle carve out in the CPSA’s definition of ‘consumer product’ are also instructive. Beyond motor vehicles, the CPSA excludes, inter alia, tobacco, pesticides, drugs, and food from the definition of ‘consumer product.’ None of these products could be considered ‘facilities’ even without CERCLA’s consumer product exception, so their exclusion from the definition of ‘consumer product’ would make little sense. Lastly, if the EPA meant for the exclusions found in the CPSA to be included in CERCLA, it would be very strange and misleading to directly quote the CPSA’s general definition of ‘consumer products’ in its preliminary rule but fail to mention or directly cite the motor vehicle exclusion at any point, despite the large and non-intuitive impact that the exclusion would have. We therefore conclude that the EPA did not intend for the exclusions found in the CPSA to apply to the definition of “consumer product” in CERCLA.”

Affirmed.

11-2381 Emergency Services Billing Corp., Inc., v. Allstate Ins. Co.

Appeal from the United States District Court for the Northern District of Indiana, DeGuilio, J., Flaum, J.