In a recent decision by a federal district court in Illinois, Carlson v. Ameren Corp., Case No. 10-01230 (C.D. Ill. Jan. 21, 2011), the court concluded that a property owner’s refusal to allow a prior owner to have access to the property to remediate contamination could result in the property owner having liability under the federal Resource Conservation and Recovery Act (“RCRA”).

In the case, the current owners of contaminated property filed a lawsuit under the citizen suit provision of RCRA against a prior owner of the property alleging that the prior owner disposed of hazardous and solid waste on the property, which resulted in soil and groundwater contamination before the current owners acquired the property. The prior owners filed a counterclaim against the current owners and alleged that the current owners had not allowed the prior owner access to the property to remediate the contamination and thus the current property owners were “actively permitting the hazardous material to further degrade” the soil and groundwater.

In denying the current property owners’ motion to dismiss the counterclaim, the federal district court concluded that a property owner’s alleged obstruction of another party’s attempts to remediate contamination may be construed as “active storage” of hazardous materials and active contribution to the contaminated condition of the property, which can trigger liability under RCRA.

Although the district court’s ruling was in the context of a motion to dismiss and does not constitute a liability determination for the property owner, the court’s decision demonstrates the importance of obtaining experienced technical and legal advice in addressing issues related to contaminated property.

For more information, please contact Andy Thompson (athompson@sgrlaw.com).