ELR Citation: ELR 20065
No(s). 3:97-CV-1926 (N.D. Tex. Feb 27, 2009)

A district court held that a seller of land is liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs the purchaser incurred cleaning up groundwater contamination at one site but is not liable for remedial investigation costs the purchaser incurred at another. Investigatory costs, like other response costs, are recoverable under CERCLA only if they are consistent with the national contingency plan (NCP). This includes consistency with the NCP's public participation requirement. Because the purchaser failed to provide all foreseeably affected parties with a meaningful opportunity to participate in the site's remedial investigation, it did not substantially comply with the NCP's public participation requirement. The court therefore dismissed the purchaser's claims for remedial investigation costs. As for response costs incurred at the other site, however, all foreseeably affected parties were given notice. The court rejected the seller's argument that the presence of contamination on one property creates "environmental stigma" that tends to depress the market values of surrounding, uncontaminated properties. The court therefore granted the purchaser's motion for partial summary judgment as to the seller's CERCLA liability at that site. Whether the site was cleaned up in compliance with the NCP, however, must be decided at trial.

[Prior decision in this litigation can be found at 32 ELR 20069, 33 ELR 20101, and 34 ELR 20154.]