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St. Mary's Law Journal

Abstract

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) to provide the federal government and the states with authority to clean up hazardous waste sites. This article discusses the significance of the so-called “innocent landowner defense” under CERCLA. This Act imposed liability on landowners regardless of the landowner’s contribution to, or awareness of, the presence of hazardous substances on their acquired property. The exceedingly, and apparently unintentionally, harsh impact of CERCLA liability soon became apparent. This article addresses a brief summary of the statute and the manner in which the innocent landowner defense came into existence. It also details recent efforts to clarify the availability of the defense and to analyze the effect, if any, such efforts had on the amorphous innocent landowner defense.

Landowner innocence under CERCLA is an elusive concept. The original CERCLA statute did not contemplate a defense of innocence for landowners. This rendered them strictly liable for cleanup liability with only the narrowest of limited defenses available. The Superfund Amendments and Reauthorization Act of 1986 (SARA), purported to provide a defense to “innocent” landowners. However, it failed to define the parameters needed to prove innocence. Proposed legislation amending SARA’s innocent landowner provision appears to do little more than to assimilate the current practices employed by landowners hoping to meet the “all appropriate inquiry” standard. Then, it only proffers them as a “rebuttable presumption” the inquiries have been met. The EPA’s subsequent Guidance Document appears to take an even different tack by implying perhaps that innocence may not be suitable for definition at all, but that it will be won or lost on a case-by-case basis.

Publisher

St. Mary's University School of Law

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