Book Description

The Superfund Act contains several mechanisms that eliminate or contain liability, or reduce liability-related transaction costs, normally incurred under the Act by persons that acquire contaminated land. This report covers three of them. Two mechanisms use innocent landowner status -- "innocent" referring to a landowner's lack of actual or constructive knowledge on the date of site acquisition as to the presence of hazardous contamination there. The third is based on the bona fide prospective purchaser concept, and is intended to encourage redevelopment of sites known at the time of acquisition to be contaminated. The first innocent landowner mechanism uses that status to invoke the Superfund Act's third-party defense to liability. One prerequisite is that the release of hazardous substances must have been caused solely by a third party lacking a contractual relationship with the defendant. A landowner is defined to lack a contractual relationship with predecessors in the chain of title if the disposal of the hazardous substances on the site preceded acquisition by the owner and at the time of acquisition he/she did not know and had "no reason to know" that the hazardous substance had been disposed of there. "No reason to know," in turn, means that before the date of acquisition, he/she made "all appropriate inquiry" into conditions at the site and the history of site uses. In 2002, Congress enacted an important clarification of the meaning of "all appropriate inquiry." The other prerequisite is that the landowner continued after acquisition to exercise due care, took precautions against foreseeable acts of the third party, etc. The second innocent landowner mechanism makes a current landowner identified by EPA as potentially liable eligible for a "de minimis settlement" with the agency. A de minimis settlement enables a landowner to settle early with EPA and thereby avoid protracted, expensive negotiations with the agency and a myriad of other liable parties over the allocation of liability at the site. Eligibility requires, among other things, that all appropriate inquiry was done by the owner prior to acquisition. This mechanism has not been used often. The third mechanism aims not to exempt a landowner from liability, but to limit that liability prior to purchase. Its origin lies in the belief that Superfund liability may chill investment in real property that is known or feared to be contaminated ("brownfields"). In 1989, EPA offered in "very limited circumstances" to enter into "prospective purchaser agreements" -- negotiated settlements with would-be purchasers of land by which EPA covenanted not to sue. Congressional desire for a less resource-intensive method of encouraging redevelopment of brownfields led to its creation in 2002 of a new exemption from liability, for the "bona fide prospective purchaser." Eligibility requires that the person not impede the site cleanup, made all appropriate inquiry, etc. Some have urged that buyers of contaminated land pursue both prospective purchaser agreements with EPA and bona fide prospective purchaser status, but EPA guidance states that the availability of the former is limited now.