Clean-Up of Property With Hazardous Waste or Toxins: CERCLA Liability

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) makes both current and former property owners jointly and severally liable for the cleanup of contaminated property. This means that if you buy a home that is contaminated with hazardous waste, you could potentially be liable for the cleanup costs. However, in 2002, the Small Business Liability and Brownfields Revitalization Act, also called the “Brownfields Amendments” made important changes to CERCLA, absolving certain landowners of responsibility if they met specific criteria outlined in the statute.

Under the Brownfields Amendments, landowners are protected from CERCLA joint and several liability requirements if they fit into one of three categories: bona fide prospective purchasers, contiguous property owners, or innocent landowners.  Bona fide prospective purchasers are those who enter into a covenant with the EPA granting them liability protection before they buy contaminated land. Contiguous property owners are those who own property that is contaminated by their neighbor’s behavior. Innocent landowners are those who acquire property and who have no knowledge of the contamination at the time of their purchase.

If you purchase property and later find out that there are hazards on that property, you may be able to avoid CERCLA liability under the innocent landowner exception. In order to do this, you must meet specific requirements outlined in the Brownfields Amendments, along with the requirements outlined in CERCLA.

To qualify as an innocent landowner, you have the burden of proving you meet all requirements and you must meet this burden of proof by a preponderance of the evidence. The statutory requirements that must be met in order to qualify as an innocent landowner vary depending on whether you acquired the property with no knowledge of contamination or whether you inherited the property. In general, however, you have the burden of proving that you performed all “appropriate inquiry” before buying the property, and that you were unaware of any hazards. You also must prove that not only were you not responsible in any way for the contamination of the property, but also that the contamination was caused by a third party with whom you had no employment, agency or contractual relationship.

You will also have continuing obligations as an innocent landowner in order to avoid CERCLA liability, including cooperating with cleanup efforts and complying with all land use restrictions.  Your obligation also requires that you post any legal notices that are required and that you provide any known information in response to requests about the property.

The cleanup of hazardous wastes or toxins can be very expensive. If your property has been determined to be contaminated, it is essential that you get legal help as soon as you can. Your attorney will assist you in understanding CERCLA and Brownfields Amendment protections for innocent landowners, and will help you gather the evidence you need in order to avoid costly liability for cleanup.

Case Studies: Clean-Up of Property With Hazardous Waste or Toxins

Case Study 1: The Bona Fide Prospective Purchaser

John, a real estate developer, is interested in purchasing a brownfield property for redevelopment. Before finalizing the purchase, he enters into a covenant with the Environmental Protection Agency (EPA) to obtain liability protection as a bona fide prospective purchaser.

Later, during the redevelopment process, hazardous waste is discovered on the property. As a result, John is protected from CERCLA joint and several liability, as he met the criteria as a bona fide prospective purchaser.

Case Study 2: The Contiguous Property Owner

Lisa owns a commercial property adjacent to a manufacturing facility. Over time, contaminants from the facility seep into the soil on Lisa’s property. When the contamination is discovered, Lisa seeks legal advice.

Under the Brownfields Amendments, she may qualify as a contiguous property owner and be absolved of CERCLA liability, as the contamination originated from her neighbor’s behavior.

Case Study 3: The Innocent Landowner

Sarah inherits a piece of land from her late grandfather. Unbeknownst to her, the land is contaminated with hazardous substances. After conducting the necessary environmental due diligence, Sarah purchases the property and plans to develop it.

When the contamination is later discovered, Sarah seeks legal assistance. She may qualify as an innocent landowner if she can prove that she performed all appropriate inquiries before the purchase and had no knowledge of the contamination.

She must also demonstrate that she had no responsibility for the contamination, which was caused by a third party with whom she had no relationship.