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Contaminated Property Cleanups

Both federal and state governments have broad authority to require present owners of contaminated properties to clean them up. The federal law, formally known as the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, and commonly known as the Superfund law, imposes liability for cleaning up contaminated sites on the current owner and operator of a contaminated site, even if that person had nothing to do with causing the contamination, and anyone who was an owner or operator of a contaminated site at the time the contamination occurred. The federal government can also use its authority under the Resource Conservation and Recovery Act to require contamination cleanup.

California has a law that closely (but not exactly) parallels CERCLA, known as the Hazardous Substance Account Act. California also has other authorities it can use to require cleanup of contaminated properties, including provisions of the Porter-Cologne Act, which is administered by the Regional Water Quality Control Boards.

Private parties can bring lawsuits under CERCLA and California’s Hazardous Substance Account Act to recover their costs in cleaning up properties. Private parties can also utilize common law claims such as trespass, nuisance, and equitable indemnity either to seek a court order requiring cleanup or recover their costs of cleanup, depending on the circumstances.

Because of the strict liability rules affecting owners of contaminated properties, the existence of contamination on a property can make it difficult to sell or lease such a property. Thus, property owners have strong incentives to pursue cleanup from anyone, such as a current or former tenant, who has caused the contamination.

Peter Niemiec has extensive experience in advising clients about cleaning up contaminated properties. In many instances, he has advised clients who have received cleanup orders from state and local agencies on how to respond to these orders, and assisted such clients in negotiating workplans, schedules, and cleanup levels. In other instances, he has assisted clients who discovered that properties they owned were contaminated, and who needed to conduct cleanups either in anticipation of selling the property, or to avoid liability to the government or adjoining property owners. He negotiated one of the earliest Voluntary Cleanup Agreements with the California Department of Toxic Substances Control (DTSC). Many other cleanup projects have involved the cleanup of underground tank problems. Peter’s expertise in property cleanups has enabled him to effectively advise clients selling, purchasing, or leasing brownfields properties. Finally, Peter has been involved in litigation over responsibility for cleanups, both as plaintiff’s and defendant’s counsel. In at least three instances, he guided these cases to a successful resolution for his defendant clients on summary judgment, a rare achievement in environmental litigation.