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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