EPA's Updated CERCLA "Common Elements" Guide: Enforcement Discretion Guidance Provides Important Direction on Landowner Liability Protections
The CERCLA, or Comprehensive Environmental Response, Compensation and Liability Act, was enacted in 1980 to find and clean up areas contaminated by the disposal of hazardous substances. Part of that process entails determining who is responsible for the release of those hazardous substances. Since then, Congress has passed amendments limiting the liability for prospective purchasers or operators of properties affected by the disposal of hazardous substances prior to purchase. It created three statutory liability defenses: the bona fide prospective purchaser, the contiguous property owner and the innocent landowner. In addition, the Environmental Protection Agency (EPA) issued an Interim Guide in 2003 concerning these limitations. The EPA issued a new guide in July 2019 to replace the Interim Guide and to address concerns about the role of continuing obligations in qualifying for one of the three exemptions.
In their alert and article, Ms. Colligan and Ms. Edwards analyze this new guide. They offer several "practice pointers," such as evaluating and documenting any "reasonable steps" taken to stop the current release of hazardous substances and to prevent any future release, and they highlight key elements of the guide, including notable updates in the discussion about continuing obligations.
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Reprinted from Environmental Law in New York with permission. Copyright 2020 Matthew Bender & Company, Inc., a LexisNexis company. All rights reserved.