CERCLA: Determining Ownership Liability for Possessory Interests in Real Property

Abstract

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as a response to disasters from toxic waste dumps. Under the statute, Congress intended to pass the costs of cleaning up hazardous waste to potentially responsible parties. To achieve this objective Congress created two distinct forms of liability under CECRLA: operator liability and owner liability. The statute, however, did not define ownership liability. As a result, various courts devised three approaches to determine ownership of possessory interests in property. The first approach relies on the common law definition of owner, the second approach looks to site control as the determining factor, and the last approach uses a five factor test to determine de facto ownership. This Comment argues that the first approach is superior in fulfilling the goals of CERCLA and protecting the environment.