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Wickland Oil Terminals v. Asarco, Inc.

Citation: 19 ELR 20855
No. No. C-83-5906 SC, (N.D. Cal., 02/23/1988) Innocent landowner defense rejected

The court holds that a landowner that did not own or operate a hazardous waste facility during the time when waste was deposited at the site is not entitled to the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) innocent landowner defense. CERCLA § 101(35) requires that a purchaser make all appropriate inquiry into previous uses of a property for the defense to apply, and includes as factors in the assessment of "all appropriate inquiry" special knowledge by the owner, commonly known information, and the obviousness or likely presence of contamination. In this case, the landowner was aware of the metal slag when it purchased the site and knew that the slag was leaching into local waters and that the previous owner had had discussions regarding its discharges with state agencies. There is evidence that the landowner knew of the risk of future contamination and liability. There was additional information readily available to the landowner, which it could have obtained by conducting tests at the site and examining state files. The owner's consulting firm and attorneys were familiar with the site's environmental problems. Even if the landowner could demonstrate that it was unaware of the site's environmental problems, it has not demonstrated that it conducted an appropriate inquiry. Moreover, the owner's emphasis on what it knew about the site's environmental problems is misplaced. The question under CERCLA § 101(35) is whether the purchaser knew or had reason to know that hazardous substances were disposed of at the facility, and the owner knew about the slag and its hazardous constituents. The court also rejects the landowner's argument that it cannot possibly be allocated any response costs under any theory of apportionment.

[Earlier decisions in this litigation are published at 14 ELR 20494, 16 ELR 20754, and 17 ELR 20688.]

Counsel for Plaintiff
Joseph A. Darrell
Thelen, Marrin, Johnson & Bridges
Two Embarcadero Center, Ste. 2200, San Francisco CA 94111
(415) 392-6320

Counsel for Defendants
Randy M. Mott
Breed, Abbott & Morgan
International Square, 1875 Eye St. NW, Washington DC 20006
(202) 466-1100

Charles F. Preuss
Bronson, Bronson & McKinnon
505 Montgomery St., San Francisco CA 94111
(415) 986-4200

Ellyn Levinson, Deputy Attorney General
350 McAllister St., Rm. 6000, San Francisco CA 94102
(415) 557-9397