Does CERCLA and the Texas SWDA provide a “third party” defense to liability?

Yes.  A PRP asserting the “third party” defense under CERCLA must show:

  • The release or threat of release of a hazardous substance and the resulting damages were caused solely by an act or omission of a third party;
  • The third party’s act or omission did not occur in connection with a contractual relationship (either direct or indirect), employment relationship, or agency relationship with the PRP;
  • The PRP exercised due care with respect to the hazardous substance; and
  • The PRP took precautions against the third party’s foreseeable acts or omissions and the foreseeable consequences resulting therefrom.  The Texas SWDA provides for a similar defense.

A “contractual relationship” is defined to include “land contracts, deeds, easements, leases, or other instruments transferring title or possession....”   Because of the definition of “contractual relationship,” a person who purchases contaminated real property cannot meet the plain requirements of Section 9607(b)(3). 

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