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Due and Don't Care Under CERCLA: An Emerging Standard for Current Owners

February 1997

Citation: 27 ELR 10064

Issue: 2

Author: Robert Emmet Hernan

Editors' Summary: CERCLA §107 contains a third-party affirmative defense provision for owners of hazardous waste sites who exercised due care. Despite the abundance of CERCLA litigation, until recently no clear understanding of due care had yet emerged. But now, a series of New York federal court opinions suggest that due care turns on the owner's actions at the time the owner becomes aware of the contamination. This Article surveys the due care case law and focuses on the recent New York decisions. The Article concludes that to benefit from the protection of the due care affirmative defense, a site owner should notify appropriate governmental authorities as soon as the owner learns of possible contamination and cooperate with authorities to determine the scope of the contamination, endeavor to limit the spread of contamination, and remain personally involved in the investigation and remediation.

The author is an Assistant Attorney General in the Environmental Protection Bureau of the New York State Department of Law, and was counsel for the state in several of the cases discussed below, including A & N Cleaners, Lashins, and New Windsor. He was also one of the counsel for the state in the Love Canal litigation. The opinions and analysis expressed in this Article are those of the author and do not in any way reflect the opinions, positions, or policies of Attorney General Dennis C. Vacco or the New York State Department of Law.

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