Friday, July 23, 2010
State of California v. Hearthside Residential Corp. - Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-55389. The Appeals Court frames the case and says, "This appeal presents a question of first impression whether 'owner and operator' status under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). . . is determined at the time that cleanup costs are incurred or instead at the time that a recovery lawsuit seeking reimbursement is filed. We hold that the owner of the property at the time cleanup costs are incurred is the current owner for purposes of determining CERCLA liability." The decision affirms the district court's partial summary judgment grant and remands the case for further proceedings not inconsistent with this opinion.
The Appeals Court said further, ". . .we are not persuaded that the limited factfinding required to determine when a recovery action accrued is burdensome enough to require a different outcome. As we previously noted, a CERCLA recovery action accrues at the point that recovery costs are incurred, and the statute of limitations runs from the time a removal action is completed or a remedial action is begun on the site. 42 U.S.C. § 9613(g)(2). Thus, factual questions surrounding the relevant cleanup dates are a routine and familiar component of CERCLA actions, and courts are well equipped to resolve such factual questions without great difficulty. Given that CERCLA's policies promoting settlement and efficient cleanup support the Department's position, we are not persuaded that the possible necessity of determining the accrual date is sufficient to tip the balance in favor of Hearthside's preferred construction. We hold that current ownership for purposes of liability under 42 U.S.C. § 9607(a)(1) is measured from the time the recovery action accrues. Because there is no dispute that Hearthside was the owner of the Fieldstone Property at all times relevant to the remediation of the Residential Site, Hearthside is a current owner. . ."
Access the complete opinion (click here).
Posted by JPMcJ at 4:33 PM