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Property Owners and Developers Beware: Third Circuit Holds Chemical Company Liable for Pre-Acquisition Cleanup Costs

By Max Heckendorn, Ashley L. Thompson & J. Michael Showalter on October 25, 2018
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Danger Hazardous Chemicals Sign on a Barrel

In a key decision earlier this month with potentially hefty ongoing implications for developers and property owners, the U.S. Court of Appeals for the Third Circuit held a chemical company liable for nearly $1 million in pre-acquisition cleanup costs. The case is Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical, LLC and offers another clear illustration that property owners and developers may be liable for environmental response costs incurred before they acquired property.

This decision also demonstrates that there is no temporal limitation for an owner’s liability under Section 9607(a), 42 U.S.C. § 9607, of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This case further accentuates the importance of careful drafting as part of the transactional process, because current CERCLA carveouts – such as the bona fide prospective purchaser (BFPP) exemption and innocent owner defense – remain the primary defenses available in litigation.

As further background on the case, the defendants bought a remediated property several years after the Pennsylvania Department of Environmental Protection (PADEP) spent over $800,000 to remove hazardous substances from the property. After defendants contributed to the contamination at the site, PADEP brought suit to recover all response costs – most of which were incurred before the defendants purchased the property. Under CERCLA, a responsible party, including the owner of the property, is liable for “all costs of [a] removal or remedial action.” 42 U.S.C. § 9607(a). The Third Circuit interpreted the term “all costs” to include those costs incurred before ownership as well as those incurred afterward. Based on this interpretation, the court ruled PADEP could recover all of its response costs from defendants.

This decision is one of several recent decisions centering on CERCLA liability. Check out our past blog posts on these significant developments, including the EPA taking back decision-making authority, lessons learned in negotiating covenants, and insurers’ duty to defend.

For more on this case, its implications, or any other issue related to CERCLA liability, please contact any member of the Schiff Hardin Environmental Group.

Photo of Max Heckendorn Max Heckendorn

Max has worked on a variety of litigation matters, particularly those in the white-collar defense and financial markets and products practice areas. He has researched and drafted memorandums and case pleadings on a range of legal issues. No matter the case, Max’s goal…

Max has worked on a variety of litigation matters, particularly those in the white-collar defense and financial markets and products practice areas. He has researched and drafted memorandums and case pleadings on a range of legal issues. No matter the case, Max’s goal remains the same—to achieve the best result for his client.

Read more about Max HeckendornEmail
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Photo of Ashley L. Thompson Ashley L. Thompson

Ashley is an environmental lawyer with a comprehensive practice spanning litigation, regulatory, and transactional matters. Her litigation experience includes complex matters under the federal Comprehensive Environmental Response, Compensation, and Liability Act and its state counterparts.

Read more about Ashley L. ThompsonEmail
Photo of J. Michael Showalter J. Michael Showalter

Mike is a problem-solver whose practice focuses primarily on resolving high-stakes environmental disputes that are legally novel or technically complex.

He is well-versed in decades-old statutes and regulations that govern rapidly-evolving areas issues such as fracking, superfund remediation and carbon capture sequestration. Mike’s…

Mike is a problem-solver whose practice focuses primarily on resolving high-stakes environmental disputes that are legally novel or technically complex.

He is well-versed in decades-old statutes and regulations that govern rapidly-evolving areas issues such as fracking, superfund remediation and carbon capture sequestration. Mike’s mission is to cut through confusion and explain his clients’ needs to decision makers in terms they can easily digest.

Read more about J. Michael ShowalterEmail
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  • Posted in:
    Real Estate & Construction
  • Blog:
    Energy & Environmental Law Adviser
  • Organization:
    ArentFox Schiff LLP

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