USA – ALABAMA Law and Practice Contributed by: John M. Johnson, Lana A. Olson, W. Larkin Radney IV and Brian P. Kappel, Lightfoot, Franklin & White, LLC
12.2 Clearing Contaminated Land Responsible parties typically include: • current owners and operators (unless falling into narrow innocent purchaser exception); • former owners and operators during periods of release; • arrangers/generators; and • transporters who selected the site or contributed to the release. Contractual allocations may shift costs between pri- vate parties but do not prevent the state from pursuing any responsible party. 12.3 Determining Liability Liability for state-directed remediation is usually strict, joint and several. Allocation or contribution may be available among responsible parties based on equita- ble factors or divisibility of harm. The burden rests with the party seeking allocation. Civil liability in tort under nuisance, trespass and negligence theories may also exist if the contamination has impacted neighbouring properties. 12.4 Proceedings Against Polluters The state may seek cost recovery and injunctive relief against responsible parties. Parties that incur neces- sary response costs consistent with applicable stand- ards may seek contribution from others. Programme- specific authorities may provide additional remedies. Civil lawsuits by private plaintiffs seeking damages (and in some cases injunctive relief) are common in situations where environmental releases on one prop- erty impact adjacent property. 12.5 Investigating Environmental Accidents Under ADEM regulations, detailed spill reporting and response duties are common across various pro- grammes and environmental media. ADEM and AOGB maintain notification and cleanup requirements for oil and gas activities. Alabama enables self-directed remediation under agency oversight in certain cir- cumstances and operates a brownfields/voluntary programme offering liability assurances upon comple- tion. Alabama also administers a state superfund-type programme for non-federal sites.
contractual agreements can be enforced if a party agrees to compensate another party for any losses, including that party’s own negligence, “if the contract clearly indicates an intention to indemnify against the consequences of the indemnitee’s own negligence... and there is not shown to be evidence of a dispropor- tionate bargaining position in favor of the indemnitee” ( Industrial Tile, Inc. v Stewart , 388 So.2nd (Ala. 1980)). See generally, “Roedder, Contractual Indemnity in Ala- bama” (33 Ala.L.Rev. 31), Industrial Tile, Inc. v Stewart , 388 So. 2d 171, 176 (Ala. 1980); Mobile Infirmary Ass’n v Quest Diagnostics Clinical Labs., Inc. , 381 So. 3d 1133, 1141 (Ala. 2023). Alabama does recognise an innocent landowner defence and a no causal relation defence, but under those doctrines no direct liability attaches to the par- ty successfully asserting the defence. To prevail on an innocent landowner defence the landowner must show that all appropriate inquiries were made, and the owner must show that there was no reason to know that contamination existed. In products liability actions, the no causal relation defence was clarified in Alabama Code Section 6-5-521. If a party passed along a product it received from a manufacturer and did not alter it or exert control over its use after sale to another, the defence is available. 12. Contaminated Land 12.1 Key Laws Governing Contaminated Land Alabama’s remediation programmes are generally aligned with federal CERCLA/RCRA frameworks, sup- plemented by ADEM’s Brownfields/Voluntary Cleanup Programme and Risk Based Corrective Action (RBCA) guidance. For oil and gas impacts, AOGB require- ments and ADEM rules apply. ADEM uses its RBCA guidance document to drive investigation and reme- diation of contaminated sites, and allows risk-based closures that reflect site-specific exposure scenarios and land use. Institutional controls such as land use restrictions are typically required if a site cannot fea- sibly be remediated to below risk-based standards.
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