By Andrew H. Perellis, Philip L. Comella, and Craig B. Simonsen


The Court found that the only issue for resolution was whether there was any evidence that the defendant, an “innocent purchaser,” was liable for the alleged re-contamination of a former Superfund site.

U.S. District Judge Ron Clark recently adopted Magistrate Judge Keith F. Giblin’s Report and Recommendations and granted summary judgment to the NBR Parties (NBR). US v. Slay, Jr., et al., No. 11-CV-263 (E.D. Texas, March 28, 2013).

NBR had contended in its summary judgment filings that the evidence showed that other defendants could not establish that during NBR’s ownership of the property it did anything to re-contaminate the property which would make NBR liable for a contribution claim under CERCLA. NBR argued that there was no evidence that it conducted dredging on the Superfund Site and maintained that an independent report showed that the dredged soils were not contaminated. Finally, NBR argued that the other defendants could not establish CERCLA liability as a matter of law because NBR was not a “covered person” from whom they could claim contribution.

Additionally, NBR submitted uncontroverted summary judgment evidence that the other defendants had presented no evidence explaining how NBR, “in light of the fact that the Site was deemed safe by the EPA prior to NBR’s ownership, could expose [the other defendants] to further liability.”

The Court found that the other defendants had not presented any verified summary judgment evidence disputing the facts “that the EPA issued its notice that no further remedial action was required for the Site prior to NBR’s ownership; that NBR was never identified as a PRP; and cleanup activities were completed prior to NBR’s ownership. Through these facts, NRB has established as matter of law that it does not fall into any of the categories of ‘covered persons’ subject to CERCLA liability.” R&R, p. 16.

This case highlights how very important it is to work to establish and to maintain an entity’s status as an innocent purchaser.