From: | Tony Chenhansa <tonyc@cpeo.org> |
Date: | Mon, 12 Apr 1999 11:12:16 -0700 (PDT) |
Reply: | cpeo-brownfields |
Subject: | State news: Potential Purchaser Liability |
The original author of this message was Peter Strauss. -------- Original Message -------- Subject: Brownfields posting Date: Fri, 09 Apr 1999 12:46:41 -0700 From: peter strauss <pstrauss@igc.apc.org> Tony, Please post Peter I have just received news from a law firm that should be of interest to everyone involved in environmental redemption and is very relevant to Brownfields development. It involves a case (K.C. 1986 Ltd. Partnership v. Reade Manufacturing, WD Mo., No. 93-1062-CV-W-5, 9/16/98), in which the court held that the "potential" purchaser is liable for cleanup costs. In 1989, Hardee's entered into a agreement with KC Partnership to lease some property. The lease permitted access to the site prior to the commencement date to conduct an environmental investigation. The environmental consultant found soil and groundwater contamination, and Hardee's terminated its lease agreement. In 1993, K.C. sued Hardee's after the Missouri Department of Natural Resources ordered K.C. to clean up the property. K.C.'s claim against Hardee's is that Hardee's consultant, through its testing, increased the rate of contaminant migration by cross contaminating aquifers. In other words, because it drilled a groundwater monitoring well that cut between two aquifers, one which was contaminated, it increased the rate of migration between the contaminated aquifer and the less contaminated aquifer. Hardee's filed a motion for summary judgment. The court determined that Hardee's was a potentially responsible party as defined by CERCLA because it had control of the work of its environmental consultant. By installing monitoring wells through soils known to be contaminated to some degree had the potential to disturb that contamination, and thus poses an issue of material fact best resolved at trial. Ultimately, the the case was dismissed because there was no approved remedial action plan. (This is puzzling to me, but I assume that damages could not be established). Regardless of the eventual outcome, becoming a potentially responsible party (PRP) by the mere fact of performing an environmental investigation may give developers of brownfields sites pause to consider the risks. Environmental consultants who perform site investigations should have insurance, and developers should carefully review the practices of their consultants. This case also brings to mind the need to make sure that the environmental consulting industry has an up-to-date "best practices manual" that minimizes the possibility of cross contamination during drilling, and may also invite the development of innovative technology that can better achieve this. Peter Strauss | |
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