Co-Written By Ms Toby Mallen
"Something is rotten in the state of Denmark." Hamlet, Act I, Scene 4
In a ruling that should be of great interest
to the owners of retail centers upon which environmental contamination has
been discovered, the 9th Circuit Court of Appeal has held that former
property owners may be liable for the “passive” migration of waste
occurring while they owned a property, even if the waste was placed on the
property prior to their ownership. The 9th Circuit’s ruling in
Carson Harbor Village Ltd. v. Unocal Corp. 227 F.3d 1196 (9th Cir.
2000), aligns the court with the 4th Circuit, which also has adopted a
position that passive migration can lead to liability for previous land
owners, and against the 2nd, 3rd, and 6th Circuits, which have indicated
that passive migration of materials will not be a sufficient basis for
liability.
