Last month’s decision in Ohio v. Breen was the most blatantly, obviously, and incontrovertibly wrong Superfund decision I have ever come across. How wrong was it? Saints/Rams level wrong.
The case involved Superfund claims brought by the state of Ohio concerning a former pesticide operation. The State sued numerous people, including the current owner of property that had been contaminated as the result of the pesticide operations. The owner argued that it was not liable. It did not assert an innocent landowner defense. It did not assert an “all appropriate inquiry defense.” Nope. Its argument was simple. It asserted that a court may not impose liability under § 107(a)(1) of CERCLA unless a person is both an owner and an operator. And the Court agreed.
To be held liable under § 9607(a)(1) requires current ownership and active participation in the hazardous release.
I hold the attorneys for the State of Ohio responsible for this travesty. They are the ones who failed to identify the hundreds – thousands, perhaps – of judicial decisions holding that §107(a)(1) imposes liability on a person who is either an owner or an operator.
I can’t imagine that the decision will stand. Someone in the office of the Attorney General must understand the rudiments of Superfund liability. Nonetheless, it remains a useful lesson. I’m not sure what the lesson is, but there has to be some kind of lesson in this case, somewhere.