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Carson Harbor Village, Ltd. v. Unocal Corp.

ELR Citation: 31 ELR 20141
Nos. No. 98-55056, 227 F.3d 1196/51 ERC 1193/(9th Cir., 09/14/2000) rev'd

The court reverses a district court decision dismissing on summary judgment a property owner's Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claim against prior owners of the property, as well as certain governmental entities, to recover the cost of cleaning up contamination on the property. The court first holds that the district court erred in finding that there was insufficient evidence of an environmental threat and that the property owner's response costs were unnecessary. That the property owner discovered contamination and acted to remedy it as part of an effort to secure financing is immaterial so long as there is evidence that the contamination presented a palpable threat to human health or the environment. Additionally, the absence of an agency directive requiring or approving the owner's response costs is not fatal to a cost recovery suit. Further, a careful review of the record demonstrates that there were genuine issues as to whether the state agency ordered the excavation of the contaminated material and whether the identified contamination posed a legitimate threat. The court next holds that the district court erred in concluding that prior owners were not potentially responsible parties because there was no evidence of disposal during the time they held the property. Despite conflicting precedent from other circuits, CERCLA's plain language and structure indicate that the term "disposal" in CERCLA §107(a) includes passive migration. Therefore, because passive migration allegedly occurred during the prior owners' tenure, the owners are entitled to proceed in their CERCLA claim against the prior owners.

Counsel for Plaintiff
Frank Gooch III
Gilchrist & Rutter
Wilshire Palisades Bldg.
1299 Ocean Dr., Ste. 900, Santa Monica CA 90401
(310) 393-4000

Counsel for Defendant
Charles Jordan
Holley & Galen
800 S. Figueroa St., Ste. 1100, Los Angeles CA 90017
(213) 629-1880

Before Pregerson, J., with Weiner,1 J., dissenting