Making Good Neighbors: Liability for Passive Migration of Hazardous Waste Under CERCLA

Starr, Jasmine M.
August 2004
Ecology Law Quarterly;2004, Vol. 31 Issue 3, p435
Academic Journal
Congress enacted CERCLA in 1980 to encourage the fair and timely cleanup of hazardous waste. Yet, more than twenty years later, thousands of sites remain contaminated. One barrier to redeveloping these sites is uncertainty over who is responsible for their cleanup, particularly when the waste has spread throughout the property and onto neighboring land, a situation known as passive migration. Since CERCLA does not specifically address passive migration, courts compare it with "disposal" and "release," both elements of liability in CERCLA. Most of the passive migration cases have dealt with interim owners of land where previous owners disposed waste, and these cases adopted a narrow definition of "disposal." Yet, two recent cases address owners of neighboring properties contaminated by passive migration. This Note argues that these cases demonstrate the flaw in adopting a narrow definition of "disposal." While neighbors should not ultimately bear the cost of cleaning up hazardous waste they never controlled, they do have a responsibility to respond to the waste on their property once it is discovered, which is required by the affirmative defenses to liability under CERCLA. Broad definitions of "disposal" and "release," combined with the many affirmative defenses provided by Congress, would achieve both fairness for neighbors and encourage the prompt cleanup of hazardous waste.


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