SCHNAPF LAW - Review of Recent CERCLA Third Party Defense “Due Care” Caselaw-Part 1

Review of Recent CERCLA Third Party Defense “Due Care” Caselaw-Part 1

Source: Schnapf Law 

February 5th, 2012

The Third Party defense (42 U.S.C. 9607(b)(3) is probably the most important CERCLA defense. To assert the defense, a defendant must satisfy the following four elements or prongs:

• The release was solely caused by a third party;
• The defendant had no direct or indirect “contractual relationship” with the third party (“contractual relationship” prong);
• The defendant exercised due care with respect to the hazardous substances (“due care” prong); and,
• The defendant took precautions against the foreseeable acts or omissions of third parties (“precaution” prong).

A defendant does not necessarily have to performed due diligence to assert the third party defense if it can satisfy all the elements of the defense. However, the lack of due diligence could impact the ability of the defendant to satisfy the “due care” element of the defense.... [MORE]