In a case now in litigation, United States v. Chemical and Pigment Co., the United States is for the first time attempting to establish a federal rule imposing liability for CERCLA cleanup costs on successor corporations (those that acquire the assets of another). The proposed rule attempts to codify a policy that the Environmental Protection Agency (EPA) has enforced under CERCLA for several years.

The proposed rule goes well beyond the traditional common law approach governing liability of successor corporations. Furthermore, adoption of the proposed rule would liberalize the already generous causation standard under CERCLA so that generators in some instances would face a standard of absolute liability. Companies who acquire ownership interest in hazardous waste sites, however, would continue to face liability under the statute irrespective of the proposed rule. Moreover, the practical effect of the rule would be to add to the due diligence burden of companies planning acquisitions or the purchase of real estate.