Healy Enviro Law Fall 2012.docx

Iii operator liability applies when party directs the

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iii. Operator liability applies when party directs the workings of, manages, or conducts the affairs of a facility from which there is a release of haz. Subst. 1. Parent corp can have direct liability if it meets operator requirements (based on parents own activities with the facility). 2. Look to corporate law to see whether successive corporations are liable (CERCLA respects corporate form, doesn’t change it). iv. Liability of person who holds indicia of ownership to protect security interest (e.g. banks holding mortgage). Such a person is liable as an owner if the person “participates in the management of the facility .” 1. Specific rules are provided in regs. b. Prior owner or operator at the time of disposal of hazardous substance . c. Person who arranged for disposal, and i. Burlington (2009): S. Ct. said there must be (1) an intent to dispose of the substances. 1. Court defines “intent” as desire for it to occur, and not substantial certainty. 2. Thus, Shell is not liable for B and B’s spills because they did not desire it to happen. 43
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ii. Dispose is broadly defined to include spills. d. Person who accepted the hazardous substance for disposal or transport . i. Insignificant statute. Transporter is only liable if they have a significant voice in the site selection process. 4. CERCLA Defenses. Party is off the hook when the release is caused solely by: a. Act of god b. Act of war c. Act of 3 rd party (creates innocent purchase exception which is meant to address the midnight dumper). i. Doesn’t apply if there is a contractual relationship between the D and 3 rd party. 5. 3 rd Party Defense Requirements (D must prove) a. Release was caused solely by 3 rd party b. 3 rd party’s act or omission was not in connection within a contractual relation with defendant. i. Previous owners caught by contractual relation by land contract. Changed in SARA c. D exercised due care regarding hazardous substances d. D took reasonable care regarding foreseeable acts of 3 rd parties. 6. SARA Amendments 1986 Innocent Land Owner Defense: a. Congress defined “contractual relationship” to exclude land contracts, deeds or other instruments transferring title. i. Effectively, with commercial property you have to do an environmental audit. b. This exclusion applies in 3 circumstances: i. At time D acquired property, D did not know and had no reason to know of hazardous substances being present on property. No reason to know necessitates that party made “ all appropriate inquiry .” EPA regs define appropriate inquiry, which is basically a reasonable environmental audit. ii. D is a gov entity that has acquired property through escheat, involuntary transfer or eminent domain . iii. Person acquired property by inheritance or bequest [following death of prior owner].
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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