A federal magistrate in Texas has recommended the dismissal of claims filed under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by property sellers against their purchaser. United States v. Slay, No. 1:11-cv-263 (E.D. Tex. 3/28/13). The property at issue was a National Priorities List (NPL) site that underwent a removal action. In 2007, U. S. Environmental Protection Agency (EPA), issued a record of decision determining that no further action was required because the removal reduced contaminant levels below any risk to human health and the environment. In 2012, EPA deleted the site from the NPL.

NBR Maritime II, LLC, acquired portions of the former site under a 2008 sale contract and a 2010 settlement agreement that arose from litigation concerning the sale. Proceeding pro se, plaintiff Charles Slay sued NBR on his own behalf and on behalf of various family trusts that owned interests in other portions of the property. Slay alleged that, in 2011, NBR conducted dredging that redistributed material containing high lead levels on the property. According to Slay, this alleged soil disturbance made NBR, the purchaser, a liable party. Slay also claimed that the dredging rendered Slay and the trusts liable for future response costs because it “recontaminated” the site. NBR moved for summary judgment.

NBR’s evidence established that before it purchased the property, EPA had determined that the property was not contaminated, deleted it from the NPL and expressly allowed its development. According to the magistrate, under the circumstances, NBR could not be liable as a current owner because the statute makes such owners liable only if they owned the property when hazardous substances were deposited there. The magistrate concluded that NBR could not have recontaminated the property because “there was no actionable contamination on the property before [NBR] acquired it.”

As further justification for recommending dismissal of the family trust claims, the magistrate also determined that federal law requires the family trusts to be represented by counsel, and they could not proceed through a non-lawyer representative.