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When Is "Leaching" Not "Leaking"? CERCLA Liability of Owners and Operators at the Time of Disposal

April 1994

Citation: 24 ELR 10177

Issue: 4

Author: Henry L. Stephens

[T]he legislative history of CERCLA gives more insight into the "Alice-in-Wonderland"-like nature of the evolution of this particular statute than it does helpful hints on the intent of the legislature.

The statement quoted above, from a recent federal court decision,1 captures some of the frustration experienced by those who attempt to divine congressional intent regarding the scope of property owners' liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,2 as amended by the Superfund Amendments and Reauthorization Act of 19863 (CERCLA).4 CERCLA imposes liability on, inter alia, past owners or operators of property whose relationship to the property coincided with "the time of disposal of any hazardous substance" on the property.5 Some recent court decisions have interpreted this language expansively to include essentially every grantee in the chain of title to contaminated realty, irrespective of the grantee's acts, omissions, or authority to control practices regarding hazardous substances at the site.6 Under these decisions, a former owner of tainted property -- who held title for only a few minutes to serve as a middleman in a real estate transaction -- may be subject to joint and several liability for all costs associated with cleanup of a site if previously disposed of substances migrated underground during the grantee's ownership.7 Proponents of such an all encompassing liability scheme find support in the Fourth Circuit's recent pronouncements in Nurad, Inc. v. William E. Hooper & Sons Co.8 The rationale of the Fourth Circuit's reasoning in Nurad, however, was sharply criticized in a well-reasoned opinion of the U.S. District Court for the Northern District of Illinois in United States v. Petersen Sand & Gravel, Inc.9

Henry L. Stephens Jr. is Professor of Law at Salmon P. Chase College of Law, Northern Kentucky University and Executive Director of the Ohio Valley Environmental and Natural Resources Law Institute, Inc. He is of Counsel to Robinson & McElwee, Charleston, West Virginia, and Lexington, Kentucky.

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