Apportioning Environmental Liabilities in Real Estate Transactions
The extensive costs of cleaning up hazardous waste sites are all too well-known. While many responsible developers and corporations had environmental concerns long before the passage of CERCLA and other environmental laws, the environmental hazards of many substances were simply not known at the time of their disposal. As a result, particularly with property subject to industrial uses before the late 1960's or early 1970's, a buyer can not assume the property is free of environmental problems.
II. THE LEGAL FRAMEWORK
A. The CERCLA Private Right of Action Section 107(a)(4)(B)
One cannot deal with apportioning environmental liabilities without a brief discussion of the existing legal framework. Much of the discussion in the literature, legal and otherwise, properly focuses on the government's powers under CERCLA. This permits recovery under Section 107(a)3 from
“(1)the owner and operator of a...facility,” and
“(2)any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of”
“(A)all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan.” Section 107(a)(4)(A).
These response costs go far beyond the normal costs invol
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