ELR Citation: ELR 20145
No(s). 92 Civ. 8771 (CLB) (S.D.N.Y. May 12, 1994)

The court holds that the current owner of a site contaminated by two dry cleaning tenants of a prior owner is not liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs the state of New York incurred at the site. The property changed hands several times before the current owner purchased it in 1987. The dry cleaners ceased operating in 1971. The court first holds that all the elements necessary to hold the owner strictly liable under CERCLA §107 as an owner and operator of the site are satisfied. The court next holds, however, that the current owner is entitled to §107(b)(3)'s third-party defense to strict liability. The current owner had no direct or indirect contractual relationship with either of the third-party dry cleaners who released the hazardous substances, or with the party that owned the site when the dry cleaners operated and when the contamination occurred. Further, the current owner did everything that could reasonably have been done to avoid or correct the pollution, the discharges occurred more than 15 years before the current owner purchased the site, and the amount of pollutant has declined since the current owner bought the property. The court notes that to find liability under these circumstances would make formerly abused sites unsalable, and that the 15-year time lapse between the pollution and the current owner's purchase of the site makes it unlikely that the original owner could have profited by attempting to sell the property free of risk to the current owner in anticipation of this ruling.

Counsel for Plaintiffs
Nancy Stearns, Ass't Attorney General
Attorney General's Office
120 Broadway, 25th Fl., New York NY 10271
(212) 416-8519

Counsel for Defendants
Daniel Riesel
Sive, Paget & Riesel
460 Park Ave., New York NY 10022
(212) 421-2150