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4 N.Y.U. Envtl. L.J. 238 (1995)
Saving a Disappearing Exemption to CERCLA Liability

handle is hein.journals/nyuev4 and id is 244 raw text is: SAVING A DISAPPEARING EXEMPTION TO CERCLA LIABILITY KURT M. RYLANDER* INTRODUCTION The Comprehensive Environmental Response, Compensa- tion and Liability Act of 19801 (CERCLA) imposes the threat of unlimited liability on virtually every business transaction. CERCLA imposes strict liability, jointly and severally,2 on po- tentially anyone who has dealt with a hazardous substance or owned property at which a hazardous substance has been present.3 * Associate, Riley & Artabane, Washington D.C. B.A., Economics, 1989, University of Washington; J.D., cum laude, 1994, Lewis & Clark's Northwestern School of Law. The author's practice focuses on government contracts and en- vironmental regulation litigation. The author thanks Professor Craig Johnston for his time, comments, and advice. 1 42 U.S.C. §§ 9601-9675 (1988 & Supp. V 1993). 2 See, e.g., United States v. Alcan Aluminum Corp., 964 F.2d 252, 270-71 (3d Cir. 1992)(holding that joint and several liability is imposed when the harm caused by a release of hazardous substance is indivisible or is not subject to ready apportionment). See also Kelley v. Thomas Solvent Co., 714 F. Supp. 1439, 1448 (W.D. Mich. 1989)(holding that except where harm is divisible, lia- bility is joint and several); United States v. Mottolo, 695 F. Supp. 615, 629-30 (D.N.H. 1988)(holding that CERCLA imposes joint and several liability); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 810 (S.D. Ohio 1983)(holding that CERCLA imposes joint and several liability). 3 42 U.S.C. § 9607 (1988). CERCLA § 107 borrows the strict liability scheme of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (1988 & Supp. V 1993)(hereinafter Clean Water Act or CWA). Chem-Dyne, 572 F. Supp. at 810 (applying the strict liability standard of the Clean Water Act); see also New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir. 1985)(holding that CERCLA provides a strict liability scheme). Further, CERCLA requires only monetary damage for imposition of strict liability, not actual environmental damage. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1152 (1st Cir. 1989)(holding that plaintiff need not prove actual contamination, only that release or threatened release caused incurrence of response costs). This strict liability is imposed broadly. See Dedham Water, 889 F.2d at 1156-57 (holding landowner liable under CERCLA for hazardous waste damage to adjoining property from waste migration); United States v. Monsanto Co., 858 F.2d 160, 168 (4th Cir. 1988), cert. denied, 488 U.S. 1029 (1989)(holding lessors liable under CERCLA for hazardous waste storage of lessees); Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1574 (5th Cir. 1988)(holding that developers and realtors may be liable under CERCLA as interim property owners); Smith Land & Improvement Corp. v. 238 Imaged with the Permission of N.Y.U. Environmental Law Journal

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