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Title: The innocent landowner defense under CERCLA should be transferable to subsequent purchasers

Abstract

Under CERCLA, landowners are held strictly liable for cleaning up hazardous substances on their property. Purchasers who acquire title to contaminated property become liable for cleanup costs by virtue of their status as the current owner. Although liability under the Act is strict, joint, and several, a few limited defenses enable some landowners to avoid liability altogether. One such defense, known as the innocent landowner defense, is the subject of this article.

Authors:
 [1]
  1. Irell & Manella, Los Angeles, CA (United States)
Publication Date:
OSTI Identifier:
543069
Resource Type:
Journal Article
Resource Relation:
Journal Name: Journal of Natural Resources amp Environmental Law; Journal Volume: 9; Journal Issue: 2; Other Information: PBD: 1993
Country of Publication:
United States
Language:
English
Subject:
29 ENERGY PLANNING AND POLICY; USA; ENVIRONMENTAL POLICY; REMEDIAL ACTION; COST; US SUPERFUND; COMPLIANCE; HAZARDOUS MATERIALS; LIABILITIES

Citation Formats

Spertus, J.W. The innocent landowner defense under CERCLA should be transferable to subsequent purchasers. United States: N. p., 1993. Web.
Spertus, J.W. The innocent landowner defense under CERCLA should be transferable to subsequent purchasers. United States.
Spertus, J.W. Fri . "The innocent landowner defense under CERCLA should be transferable to subsequent purchasers". United States. doi:.
@article{osti_543069,
title = {The innocent landowner defense under CERCLA should be transferable to subsequent purchasers},
author = {Spertus, J.W.},
abstractNote = {Under CERCLA, landowners are held strictly liable for cleaning up hazardous substances on their property. Purchasers who acquire title to contaminated property become liable for cleanup costs by virtue of their status as the current owner. Although liability under the Act is strict, joint, and several, a few limited defenses enable some landowners to avoid liability altogether. One such defense, known as the innocent landowner defense, is the subject of this article.},
doi = {},
journal = {Journal of Natural Resources amp Environmental Law},
number = 2,
volume = 9,
place = {United States},
year = {Fri Dec 31 00:00:00 EST 1993},
month = {Fri Dec 31 00:00:00 EST 1993}
}
  • The Fact Sheet summarizes when landowners may be eligible for a release from liability and when a landowner may be eligible for a de minimis settlement. It also describes the agency's policy on prospective purchasers of contaminated property.
  • The purpose of the directive is to provide general guidance on landowner liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No.99-499 (SARA), 42 U.S.C. S9601 et seq., and to provide specific guidance on which landowners qualify for de minimis settlements under Section 122(g)(1)(B) and on structuring such settlements. Because the nature of a de minimis settlement with a landowner will differ substantially from a de minimis settlement with waste contributors, it will usually be more efficient to draft such agreements separately. In addition,more » because the Agency has received numerous requests from prospective purchasers of contaminated property for covenants not to sue, the memorandum sets forth Agency policy on this issue.« less
  • Consultant liability is an area of the innocent landowner defense under CERCLA that is not often discussed. The only reasonable way to protect consultants hired by innocent purchasers'' is for Congress or state legislatures to establish standardized, regulated audit guidelines. However, even standardized guidelines do not protect consultants completely, because standards cannot specify all activity necessary to perform a particular task. Each project has unique circumstances, and standards arguably can become per se determinants of liability. CERCLA provides three defenses to its basic strict, joint and several liability provisions -- an act of God, an act of war, and anmore » act or omission of a third party not in a contractual relationship with the current owner. Congress amended the third-party not in a contractual relationship with the current owner. Congress amended the third-party defense in SARA by redefining contractual relationship'' to exclude from liability owners who acquired the real property following disposal or placement of hazardous material, and established satisfactorily that the owner at the time of purchase neither knew nor had reason to know hazardous substances were disposed on the property -- the innocent landowner defense.« less
  • In 1986 when Congress passed the Superfund Amendment and Reauthorization Act (SARA), which amended the Comprehensive Environmental Response, Compensation, the Liability Act of 1980 (CERCLA), the innocent landowner defense was congressionally sanctioned. Current court decisions threaten to demolish this congressionally authorized defense to CERCLA liability of their interpretation of {open_quotes}disposal{close_quotes} to include passive migration of hazardous substances. This article examines both the effect of these recent decisions on the innocent landowner defense and the validity of these decisions under the currently existing statutory scheme and recommends congressional action to remedy the problem. 54 refs.
  • This bill was introduced into the US House of Representatives on February 28, 1991 to amend the Comprehensive Environmental Response, Compensation and Liability Act of 1980. The purpose of this legislation is to define specifically the requirement that a purchaser of real property make all appropriate inquiries into the previous ownership and uses of the property in order to qualify for the innocent landowner' defense. This requirement is established in order to determine the presence of hazardous substances on the property.