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The EPA recently announced that it will review site cleanups and remedies at 20 Superfund Sites and oversee reviews at 4 federal facilities across New England this year. This got us to thinking about the relationship between the Agency’s efforts in encouraging the redevelopment of these sites and liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) aka Superfund.
You can be liable as a potentially responsible party (PRP) under Superfund if you:
- Are the owner or operator of the property
- Owned or operated any facility where hazardous wastes were disposed of at the time of disposal
- Arranged for hazardous substance disposal or treatment
- Arranged with a transporter for transport of hazardous substances for disposal or treatment
- Accepted hazardous substances for transport to disposal or treatment facilities, incineration vessels, or sites, and selected the site
EPA’s Superfund Redevelopment Initiative is aimed at returning Superfund sites to beneficial use. However, the fear of becoming entangled in the potentially unending quagmire that can be a Superfund cleanup has kept many folks from purchasing a remediated Superfund site.
Attend the Superfund Site Management webinar on March 12 to use the EPA’s Superfund Redevelopment Initiative (SRI) to your advantage. Learn more.
Do You Want to Be a BFPP?
Part of the encouragement to redevelop Superfund sites is the CERCLA provision that allows for what is called a “bona fide prospective purchaser defense”.
A bona fide prospective purchaser (BFPP) (as defined in 42 UCS 9601(40)) is not liable for hazardous substances that the purchaser knew were on the property when it was purchased after January 11, 2002. In order to take advantage of this opportunity to purchase and redevelop a Superfund site without fear of liability, you must have (among other conditions) acquired the property after all the hazardous substance disposal had occurred and not be affiliated in any way with a PRP. You can’t be a family member (i.e., have a “direct or indirect familial relationship”) or have any financial, corporate, or contractual relationship with a PRP.
It’s important to note here that neither “affiliation” nor “direct or indirect familial relationship” is defined in CERCLA. The EPA addresses this issue in a March 2003 memo, wherein the Agency recognizes that the term “affiliation” could be taken to an extreme. The memo states that in exercising its enforcement discretion, EPA intends to be guided by “Congress’s intent of preventing transactions structured to avoid liability.”
You can also lose you BFPP status and become entangled in liability issues if you do not comply with any land use restrictions established in connection with the response actions for the property or if you somehow impede the effectiveness or integrity of any institutional controls employed in connection with the response actions. You will certainly incur liability if you cause any additional hazardous substance releases on the property after you purchased it.
Superfund Site Management: How to Remediate Land Under the EPA’s Redevelopment Initiative
Learn how other companies have remediated thousands of acres of underutilized Superfund sites, so you can start planning to redevelop yours. Register today!
You Must Protect your BFPP Status
In order to protect your status as a BFPP, you must also be careful to:
- Make all appropriate inquiry before you purchase the property.
- Provide all legally required notices pertaining to hazardous substances discovered or released on the property.
- Take “reasonable steps” (another term not defined in CERCLA but addressed in the March 2003 memo) to stop continuing releases, prevent or limit future releases, and prevent or limit human, environmental, or natural resource exposure to any previous release.
- Cooperate with and assist those conducting response actions.
- Comply with any information requested under CERCLA.
Problems with Data
Any steps you must take to protect yourself against Superfund liability is further complicated by potential insufficient or incomplete data compiled by the EPA in its 5 year reviews (FYR) of Superfund sites. A February 2012 report by EPA’s Office of the Inspector General (OIG) identified issues in sample FYRs, including:
- The site-monitoring network was inadequate to assess whether off-site migration of contamination had been controlled by the remedy, affecting EPA’s ability to make accurate protectiveness determination.
- Environmental sampling data did not support the site’s protectiveness determination.
- Long-term sampling had not sufficiently measured ecological impacts and, therefore, the protectiveness determination could be challenged.
- Oversight of long-term monitoring did not detect the collection, reporting, and analysis of invalid data that was then used in completing the site’s FYR.