Landowner Liability Protections

Landowner Liability Protections from the 2002 Brownfields Amendments

The 2002 Small Business Liability Relief and Brownfields Revitalization Act (Brownfields Amendments) provides important protections from Superfund liability to landowners who meet certain criteria. The liability protections are for landowners who qualify as:

 

Bona Fide Prospective Purchasers

To encourage the acquisition and development of brownfields, the Brownfields Amendments established this defense. A bona fide prospective purchaser is a person who acquires ownership of a facility after Jan 11, 2002, and who establishes the following by a preponderance of evidence:

  • The hazardous substances disposal occurred before the purchaser acquired the property;
  • The purchaser made all appropriate inquiries (i.e., conducted a Phase I Environmental Site Assessment (ESA)) into the previous ownership and uses of the facility;
  • The purchaser has no affiliation with any potentially responsible party; and
  • The purchaser complies with all continuing obligations after acquiring the property, as described at https://www.epa.gov/enforcement/bona-fide-prospective-purchasers

 

Contiguous Property Owners

A contiguous property owner defense can be claimed by a person who owns property that is contiguous to a facility that is the only source of contamination that impacted the person’s property and must show that:

  • The person did not cause, contribute to, or consent to the release or threatened release of hazardous substances;
  • The person made all appropriate inquiries (i.e., conducted a Phase I ESA) into the previous ownership and uses of the facility;
  • The person did not know and had no reason to know that the property was or could be contaminated by a release or threatened release of hazardous substances from other real property not owned or operated by the person;
  • The person had no affiliation with any potentially responsible party; and
  • The person complied with all continuing obligations after acquiring the property, as described at: https://www.epa.gov/enforcement/contiguous-property-owners

 

Innocent Landowners

An innocent landowner is a purchaser (or a person that inherited property) who does not know and has no reason to know of the hazardous substance contamination at the time of purchase. To be eligible, a landowner must show that:

  • The landowner acquired property after all hazardous substances were disposed of at the facility;
  • On or before the acquisition date, the landowner conducted all appropriate inquiries (i.e., conducted a Phase I ESA) into the previous ownership and uses of the facility;
  • The landowner did not know, and had no reason to know, of the hazardous substance contamination at the time of purchase;
  • The landowner exercised due care with respect to the hazardous substance concerned; The landowner took adequate precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; and
  • The landowner complied with all continuing obligations after acquiring the property, as described at: https://www.epa.gov/enforcement/innocent-landowners