Under the nation's contaminated property cleanup law (CERCLA), potentially response parties (PRPs) are indentified as those who will pay for cleanup. However, there are exceptions:

 

A "good in commerce" refers to a hazardous material that is being shipped and sold.  Once the hazardous material is accepted, the shipper has no liability for it under CERCLA.  For example, a paint company ships paint to a local paint store.  Oil based paint is toxic.  When the store accepts the paint, the shipper has no future liability.  The paint was never a toxic waste. 

 

A "bona fide purchaser" refers to someone who buys property and takes all appropriate steps beforehand to ensure that no toxic contamination is on the property.  In that situation, the purchaser has no CERCLA liability if toxic waste is found on the property at a later time.  At a minimum, a Phase I  examination (records review and site tour) must be taken to qualify for this exemption from liability.  As a mentioned in class, in practice, the "bona fide purchaser" is almost useless because modern techniques to check for contamination are pretty good.  In addition, the "purchaser" may be off the hook on liability, but the contamination will prevent sale or use of the property.

 

Here are some questions that I answered for a student:

 

 

The common law developed the notion of strict liability for ultrahazardous activities.  Under this cause of action, an innocent person, injured by actions of several people, does not have to prove which one of these people caused his injury.  Instead, each is liable for 100% of the damage, and if they can show that someone else contributed, they can recover a share from them.

 

When it became law in 1981, the nation's contaminated property cleanup law, CERCLA, used strict liability as its foundation.

Under CERCLA, the government (usually U.S EPA or California's Department of Toxic Substances Control) can sue anyone who is responsible (generator/transporter/arranger/owner/operator) to pay 100% of the cost of cleaning up a contaminated property.  The company who must pay 100% of the cleanup costs can later sue any other responsible party and recover the share of the contamination that the other responsible party caused.

 

U.S. District Court Judge Ron Whyte starts trial of the Olin case on Sept. 21.  The case is part of the biggest local environmental issue in many years.  Olin, a major chemical company, made flares in Morgan Hill and dumped liquids containing perchorlates on the ground at their site.  After they left the site, it was discovered that the groundwater for thousands of people in Morgan Hill thru San Martin was contaminated. 

 

In response, the Santa Clara Valley Water District (SCVWD) began providing bottled water for drinking and cooking in the affected area.  The SCVWD is now seeking reimbursement of its expenditures.  Olin contends that the expenditures were not needed or inappropriate.  The total sought by SCVWD is more than $30 million.

 

I have been hosting and producing a public access TV show since 1997.  It runs on Thursday nights at 9:30 p.m. on channel 15 of Comcast's system for San Jose and Campbell.  

 

The show focuses on issues of importance to Breathe California, such as air pollution, smoking, indoor air quality, and energy.  The show is sponsored by Breathe California of the Bay Area, located in San Jose and one of my Breathe California chapters covering the whole state.  Last year, our chapter helped 140,000 people, primarily focusing on the poor of the South Bay, and providing the services in 27 languages.

The film is by Rob Caughlan, who did the endangered species and population films that I use in my environmental law classes.  Rob may be visiting the SJSU environmental law class at 1 p.m. on Wednesday, July 8.  Come join us!

 

Here is a little more about the film:

I was interviewed for a comparison of the safety of tap water and drinking water.  The segment will run on NBC TV news at 11 pm tonight; that is Channel 11 for antennae; Channel 3 for Comcast.

 

Here is the press release that I was commenting on:

Tests on leading brands of bottled water turned up a variety of contaminants often found in tap water, according to a study released Wednesday by an environmental advocacy group.

The findings challenge the popular impression -- and marketing pitch -- that bottled water is purer than tap water, the researchers say.

However, all the brands met federal health standards for drinking water. Two violated a California state standard, the study said.

An industry group branded the findings "alarmist." Joe Doss, president of the International Bottled Water Association, said the study is based on the faulty premise that a contaminant is a health concern "even if it does not exceed the established regulatory limit or no standard has been set."

The study's lab tests on 10 brands of bottled water detected 38 chemicals including bacteria, caffeine, the pain reliever acetaminophen, fertilizer, solvents, plastic-making chemicals and the radioactive element strontium. Though some probably came from tap water that some companies use for their bottled water, other contaminants probably leached from plastic bottles, the researchers said.

"In some cases, it appears bottled water is no less polluted than tap water and, at 1,900 times the cost, consumers should expect better," said Jane Houlihan, an environmental engineer who co-authored the study.

The two-year study was done by the Washington-based Environmental Working Group, an organization founded by scientists that advocates stricter regulation. It found the contaminants in bottled water purchased in nine states and Washington, D.C.

Researchers tested one batch for each of 10 brands. Eight did not have contaminants high enough to warrant further testing. But two brands did, so more tests were done and those revealed chlorine byproducts above California's standard, the group reported. The researchers identified those two brands as Sam's Choice sold by Wal-Mart and Acadia of Giant Food supermarkets.

In the Wal-Mart and Giant Food bottled water, the highest concentration of chlorine byproducts, known as trihalomethanes, was over 35 parts per billion. California's limit is 10 parts per billion or less, and the industry's International Bottled Water Association makes 10 its voluntary guideline. The federal limit is 80.

Wal-Mart said its own studies did not turn up illegal levels of contaminants. Giant Food officials released a statement asserting that Acadia meets all regulatory standards. Acadia is sold in the mid-Atlantic states, so it isn't held to California's standard. In most places, bottled water must meet roughly the same federal standards as tap water.

The researchers also said the Wal-Mart brand was five times California's limit for one particular chlorine byproduct, bromodichloromethane. The environmental group wants Wal-Mart to label its bottles in California with a warning because the chlorine-based contaminants have been linked with cancer. It has filed a notice of intent to sue.

Wal-Mart spokeswoman Shannon Frederick said the company was "puzzled" by the findings because testing by suppliers and another lab had detected no "reportable amounts" of such contaminants. She said Wal-Mart would investigate further but defended the quality of its bottled water.

The researchers recommend that people worried about water contaminants drink tap water with a carbon filter.

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On the Net:

Environmental Working Group: http://www.ewg.org