PM Environmental is experienced with various federal and state mechanisms that provide purchasers of contaminated properties a means of liability protection.
Additionally, PM Environmental has designed and implemented engineering controls, isolations zones, and other containment structures that provide a method of distinguishing existing contamination from potential new releases at contamination properties. PM Environmental has also prepared various contaminant Fate and Transport models to document how existing contamination is likely to behave.
To address contamination, eligible entities must demonstrate that they are not liable under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for the contamination at the site. Accordingly, eligible entities who may be considered “potentially responsible parties” under CERCLA must demonstrate they meet one of the liability protections or defenses set forth in CERCLA by establishing that they are (1) an innocent landowner, (2) a contiguous property owner, (3) a bona fide prospective purchaser, or (4) a government entity that acquired the property involuntarily through bankruptcy, tax delinquency, or abandonment, or by exercising its power of eminent domain.
Various states have liability protection mechanisms through Voluntary Cleanup Programs, Baseline Environmental Assessments (BEA) and consent orders/covenants not to sue. The conditions for attaining and/or maintaining liability protection usually involves Continuing Obligations or Due Care Compliance.
What are the conditions for attaining liability protection under CERCLA?
To be eligible for liability protection under CERCLA as an innocent landowner, contiguous property owner or bona fide prospective purchaser, prospective property owners must:
Conduct All Appropriate Inquiries in compliance with 40 CFR Part 312, prior to acquiring the property;
Comply with all Continuing Obligations after acquiring the property (CERCLA §§101(40)(C – G) and §§107(q)(A) (iii – viii)); and
To demonstrate that it qualifies as an innocent landowner, contiguous landowner, or bona fide prospective purchaser, the applicant must:
What are Continuing Obligations?
After acquiring a property, to maintain the liability protections, landowners must comply with “continuing obligations” during their property ownership. The continuing obligations include:
Provide all legally required notices with respect to the discovery or release of a hazardous substance;
Exercise appropriate care with respect to the hazardous substances by taking reasonable steps to stop or prevent continuing or threatened future releases and exposures, and prevent or limit human and environmental exposure to previous releases;
Provide full cooperation, assistance, and access to persons authorized to conduct response actions or natural resource restoration;
Comply with land use restrictions and not impede the effectiveness of institutional controls; and
Comply with information requests and subpoenas.
What are Due Care Requirements?
An owner or operator of a contaminated property shall do all of the following with respect to hazardous substances at the property:
Prevent exacerbation of the existing contamination;
Prevent unacceptable human exposure and mitigate fire and explosion hazards to allow for the intended use of the contaminated property in a manner that protects the public heath and safety;
Take reasonable precautions against the reasonably foreseeable acts or omissions of a third party; and
Provide notifications to the regulatory agency and others.