So, what is exacerbation anyway?

29 Nov 2011

Michigan and federal law both bar “exacerbation” of contamination left in place.  By law,  exacerbation includes ‘‘a change in facility conditions that increases response activity costs,’’as well as off-site migration at a level of concern.  A nonliable owner who exacerbates conditions becomes liable for response activity costs and natural resources damages that are ‘‘attributable to any exacerbation of existing contamination.’’ 

But what really constitutes exacerbation? This has been largely unaddressed. Clearly, moving contaminated materials to an uncontaminated location is exacerbation but a recent decision in a Michigan federal court sheds some light on this issue when work is done on a site of contamination.

 A developer bought a portion of an old, contaminated industrial site that was under a RCRA consent order, and demolished the old building slab, allowing rainwater (which previously ran off the slab) to penetrate, causing contamination to migrate, as well as potentially exposing persons on the property to the previously “capped” area.

Cross-suits were filed by the developer and the former industrial owner (Johnson Controls) with the developer claiming Johnson had failed to comply with the consent order by not cleaning up the site and Johnson alleging that the developer had either exacerbated the existing contamination or caused a release giving rise to liability.  The federal judge agreed with Johnson, concluding that the definition of “release” is broader than that of “disposal” and migration is a release, even if it isn’t disposal. The Judge further held that the developer’s breaking up the old slab and testimony about the mobilization of contamination was enough to create a genuine issue of fact about whether the developer had caused exacerbation for which it could be held liable.

If you are a non-liable party, you certainly want to be careful not to take any steps that would make matters worse as it could cause you to be held liable when you didn’t spill a drop, possibly even when all you did is develop the site.  

 

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