The US Government sued defendants under CERCLA, a law which states that the government can sue for the clean up costs of hazardous waste resulting from the defendant’s actions for reimbursement of clean up costs. Under this law, current owners and operators of sites are generally held strictly liable for clean up costs – intent and comparative fault are not relevant in these proceedings. However, the law does establish a few affirmative defenses available to defendants.
Defendants are owners of a dry cleaning business. The operator of the Laundromat did not own the property; the property is owned by three separate individuals, who are the defendants in this case. The property has a dry well spanning through the middle, which empties out beneath a parking lot at the end of the property. The water empties into an aquifer, where a hazardous material was found in the ground water of the well field. The Plaintiffs allege the defendants’ drying machines are the source of the waste. The operator of the Laundromat was visited on multiple occasions by health officials, who claimed he had stopped all previously hazardous disposal practices. However, the evidence shows he disposed of the hazardous material for the next 12 years. Defendant owners never subsequently asked about his disposal practices, nor did they know he continued to dispose of the hazardous material. The operator stopped disposing of the waste prior to the purchase of the property by defendants, but continued until 1991.
Whether the defendants can claim any of the CERCLA “affirmative defenses” – and especially, the innocent landowner defense.
The third party defense rule states that a defendant is not liable if a third party caused release solely by an “act or omission other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant.”
Innocent landowner defense: An exception to the “no contractual relationship rule” states that the owner is not liable if he didn’t know about the disposal at the time of purchase. The owner must have undertaken good, customary inquiry into the prior use of the property.
Defendant now has the obligations that the third party exclusively by the unrelated third party. “The only blameworthy activity that many property owners facing CERCLA liability have engaged in is the failure to comply with the host of amorphous and undefined due care requirements necessary for establishing CERCLA’s affirmative defenses.” The affirmative defenses do very little to alleviate blameless parties. Under the poorly drafted law, an innocent person under the strict liability requirement very well may be held liable for the recklessness of others. The law does nothing to define what is a “sufficient” investigation and leaves courts and citizens confused.
The court writes that “since the Berkman Defendants’ liability is predicated on their unwitting ownership of contaminated property, rather than on any disposal of waste which might have occurred on the Property since they purchased it, they bear the burden of showing that a totally unrelated third party is the sole cause of the release of hazardous substances in question. As it is equally likely that the Ironing Machine Condensate is contaminated or that it is not contaminated, and since Forcucci disposed of the Ironing Machine Condensate down the Floor Drain until 1991, the Berkman Defendants have failed in this burden.”