RECENT FEDERAL DECISIONS

September 2004

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New York District CourtDeclines to Dismiss Landowner’s Action under § 107 of CERCLA because Owner Might Qualify for the “Third Party” or “Innocent Purchaser” Defense
Emerson Enterprises, LLC v. Kenneth Crosby Acquisition Corp.,___F.Supp.2d___

The U.S. District Court for the Western District of New York recently denied a motion to dismiss a landowner’s action under § 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), even though the general rule is that a landowner is itself a potentially responsible party and therefore may bring an action only under § 113. The court ruled that even though the landowner was presumptively a potentially responsible party, the landowner might ultimately be able to prove facts to establish it is entitled to the “third party” or “innocent purchaser” defenses set forth in CERCLA and therefore would not be limited to an action under § 113.