12. PRESERVE SUPERFUND DEFENSES

Many land managers, especially government agencies, are not aware that the federal Superfund provides some legal defenses or exemptions against strict liability. CERCLA establishes three statutory affirmative defenses for potentially responsible parties: an act of God; an act of war; and third parties’ acts or omissions that the defendant does not have a contractual relationship with. It is difficult and often uncommon for parties to use the act of God and war defenses. The third party affirmative defense is often unsuccessfully invoked.

Consider invoking the third party defense if the contamination is caused exclusively by a person unconnected with you by contract, deed, or otherwise. You cannot invoke this third party defense, though, for acts of an employee or contractor. They are not qualified as “third parties.”

Defendants attempting to invoke the third party defense must establish that: the hazardous substance’s release was caused by the acts or omissions of third parties; the third parties’ actions or omissions did not result from a contractual or employment relationship with the defendant; the defendant exercised due care with regard to the hazardous substance; and the defendant took precautions against the foreseeable actions or omissions by the third party. 42 U.S.C. § 9607(b).

The most important, more useful defense for potential purchasers is the “innocent purchaser defense”, which protects the innocent purchaser who does a site assessment at the time of acquisition, meeting good commercial practice at the time, inquiring into the previous ownership and uses of the property, which unfortunately misses the waste. 42 U.S.C. § 9607.

Congress amended the ambiguous language of CERCLA § 107(b)(3) with the Superfund Amendments and Reauthorization Act, 42 U.S.C. § 9601 (35)(A)(ii), to provide the innocent purchaser defense. Innocent purchasers who can establish that they purchased the property after the hazardous waste disposal, and exercised good faith and due care in attempting to discover any possible contamination before purchasing the parcel, will be protected under this defense. For the innocent purchaser defense to prevail, the innocent landowner cannot have any privity with the third party that subsequently caused the contamination. The party asserting the innocent purchaser defense must establish that it possessed no “reason to know” and conducted “all appropriate inquiry” into the parcel’s pervious ownership, uses, and commercial practices. 42 U.S.C. § 9601 (35). The courts are rigorous in applying a strict interpretation of the statutorily defined elements of the innocent purchaser defense. Prospective purchasers should make an appropriate and detailed pre-purchase environmental investigation to shield themselves from liability under the innocent purchaser’s defense.

Of most interest to government agencies and heirs is what we call the involuntary transfer exemption. It is available to anybody taking property by inheritance or bequest, and to agencies which take property or eminent domain. There are several qualifications on this exemption, such as acting with due care.

Another defense for government is for anybody giving care, assistance or advice pursuant to the National Contingency Plan (NCP) or under the direction of a on-scene coordinator under the NCP where there is danger to public health or welfare. Yet another defense for state or local government is for response actions in an emergency, involving a facility not owned by the government.

These are not blanket defenses or exemptions. Quite often you will have to show that you acted properly upon discovery of the contamination, and anticipate the foreseeable acts of other persons. Check the defenses as they are interpreted in the courts and conduct your operations accordingly.