• Manipulating Contaminated Soil during Construction May Be Considered a CERCLA "Disposal," Triggering Owner/Operator Liability
  • December 16, 2009 | Author: Gabrielle Sigel
  • Law Firm: Jenner & Block LLP - Chicago Office
  • On September 22, 2009, the U.S. District Court for the District of New Jersey held that when a developer moved contaminated soil around a site, it was subject to former owner/operator liability, but not to arranger liability if it did not have actual knowledge that the soil was contaminated. Bonnieview Homeowners Assoc. LLC v. Woodmont Builders, 2009 U.S. Dist. LEXIS 86737 (D.N.J. Sep. 22, 2009). In Bonnieview, Woodmont Builders was hired to develop a vacant property to construct new single-dwelling homes. The property had been used historically as an orchard and/or for forestry, allegedly leading to significant metal and pesticide contamination later found at the site. Woodmont relied on previously commissioned Phase I investigations at the site, which noted the possibility of sub-surface contamination beneath several piles of debris, but did not recommend further sampling. During the course of construction, Woodmont Builders excavated and regraded topsoil, allegedly spreading contamination throughout the residential development. After several families had purchased homes at the site, environmental testing revealed contamination in the soil. The homeowners subsequently filed suit against Woodmont Builders, a former property owner, and individual defendants (collectively, “defendants”) under CERCLA §§ 107 and 113, the RCRA citizen suit provision, the New Jersey mini-CERCLA statute, and several other state law statutory and common law theories, while Woodmont counterclaimed against the homeowners under CERCLA. The parties cross-moved for summary judgment.