A Game of Old Maid: The Ninth Circuit Establishes when the Owner-Operator is Determined for CERCLA Liability in California v. Hearthside Residential Corp.

I. INTRODUCTION The ripple effect of the Deepwater Horizon oil spill has extended far beyond the coastal regions surrounding it. The massive oil hemorrhage in the Gulf of Mexico has stirred up renewed discussion among politicians and in the media over Superfund and the importance of affixing responsibility to polluters.1 Superfund, or more specifically, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),2 was enacted in 1980 as a response to "the serious environmental and health risks posed by industrial pollution" and was intended "to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination."3 Those that are liable for the contamination, as a result of their relationship to the contamination, are identified as potentially responsible parties (PRPs) by the statute. One such PRP is the current "owner and operator" of the contaminated location.4 But unlike the other PRPs, who are assigned liability due to some role in causing the contamination, this party's only reason for being "responsible" is ownership of the contaminated site.5 Like the last player stuck holding the "Old Maid" in the classic card game,6 the party holding title to the contaminated site is strictly liable for cleanup expenses.7 Unfortunately, CERCLA is unclear regarding the point in time at which the "card game" stops and a particular owneroperator is determined to be liable for cleanup. In other words, where ownership to a particular site switches hands over a period of time, CERCLA fails to specify which owner-operator is required to front cleanup costs. In California v. Hearthside Residential Corp., the Ninth Circuit addressed whether "owner and operator" liability under CERCLA is determined at the time of a cleanup action or at the time a resulting suit is filed.8 As a "question of first impression" the court relied primarily on what it viewed as "CERCLA's purposes" to arrive at its holding that the current owner and operator, for cleanup liability, is set at the time cleanup occurs.9 This Note argues that the Ninth Circuit's analysis of this issue inappropriately diverges from the Supreme Court's prior interpretations of CERCLA because the court failed to look at the plain meaning of the statute, did not strictly apply liability, and should have found the current owner to be determined when recovery for incurred cleanup costs are sought. II. FACTS AND PROCEDURAL HISTORY Hearthside Residential Corporation ("Hearthside") purchased a tract of undeveloped wetlands in Huntington Beach, California in 1 999 io Jj16 Q-J^ known as the Fieldstone Property, sat adjacent to several residential plots ("Residential Site") that were not owned or occupied by Hearthside.11 At the time of purchase, Hearthside was aware that the Fieldstone Property was contaminated by polychlorinated biphenyls, or PCBs.12 By 2002, Hearthside had entered into a consent order with the State of California's Department of Toxic Substance Control ("the Department") under which Hearthside agreed to undertake remediation of the PCB contamination of the Fieldstone Property.13 The Department also determined that the adjoining Residential Site had been contaminated by PCBs as a result of leakage from the Fieldstone Property and considered Hearthside responsible for the process of investigating and remediating the Residential Site.14 Hearthside opposed this determination, asserting that it bore no responsibility for the Residential Site and therefore limited its cleanup efforts to just the Fieldstone Property.15 Subsequent to Hearthside's refusal of responsibility for the PCB contamination on the Residential Site, the Department contracted cleanup efforts at the Residential Site, incurring ongoing cleanup costs between July 2002 and October 2003. 1d On December 1, 2005, the Department certified the completion of the Fieldstone Property cleanup and Hearthside promptly sold the Fieldstone Property to the California State Lands Commission. …