Before enactment of SBLRBRA in 2002, there were only three defenses to CERCLA, which were set forth at CERCLA § 107(b), 42 U.S.C. § 9607(b). These defenses apply to a person who can establish by a preponderance of the evidence that a hazardous substance release and resulting damages were caused solely by:
1. an act of God;
2. an act of war; or
3. an act or omission of a third party.
The third defense, commonly referred to as the “third party” defense, is available to a property owner/operator only when:
· the third party whose act or omission caused the contamination is not an employee or agent of the owner/operator;
· the act or omission of the third party did not occur in connection with a contractual relationship “existing directly or indirectly” with the owner/operator;
· the owner/operator exercised due care with respect to the hazardous substances at issue; and
· the owner/operator took precautions against the foreseeable acts or omissions of the third party and the consequences that could foreseeably result from such acts or omissions.
While the third party defense under CERCLA § 107(b) would appear to be unavailable to property owners that purchased...
