How does a party demonstrate it exercised appropriate care with regard to the BFPP’s defense?

To demonstrate that it has exercised appropriate care, an owner must show that it took reasonable steps to:

  • Stop any continuing release;
  • Prevent any threatened future release; and
  • Prevent or limit human, environmental, or natural resource exposure to any previously released hazardous substance.  

According to EPA, Congress intended the “reasonable steps” requirement to be consonant with traditional common law principles and the existing CERCLA due care requirement.  Under the CERCLA due care requirements, a party must establish by a preponderance of the evidence that it exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts or circumstances.

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