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EPA Press Advisory: Communities Could Gain from EPA Proposal Encouraging Property Purchase

Release Date: 08/23/2004
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(08/23/04) To encourage the purchase, cleanup, reuse and economic revitalization of property that may be environmentally contaminated, EPA today announced a proposed rule requiring potential owners to conduct certain inquiries into the previous ownership, uses, and environmental conditions of the land prior to purchase. If the inquiries are performed properly and other reasonable steps undertaken, the purchasers can buy the land with assurance from EPA that they will not be subject to lawsuits under the Superfund hazardous waste cleanup law.

Although the current Superfund law provides some protection to “innocent” land purchasers who unknowingly buy contaminated property, the statutory language is ambiguous. Today’s proposal provides certainty for purchasers of potentially contaminated property and reduces yet another barrier to cleanup and redevelopment in local communities across the nation.

The Agency’s proposal will also apply to any person conducting a waste site characterization or assessment with funding from the federal Brownfields grant program, regardless of whether a purchase takes place.

Prospective property owners who do not conduct the inquiries properly may lose their ability to claim protection from Superfund liability. Superfund authorizes EPA to negotiate with parties that helped create hazardous waste sites to get them cleaned up. If these parties refuse to cooperate, EPA can sue them to conduct the cleanup. Regardless of how the cleanup is conducted, Superfund also gives EPA the authority to recover from parties any costs it incurs as part of the cleanup effort. Currently, land purchasers who unknowingly buy contaminated property can find themselves subject to Superfund liability.

EPA was directed by Congress to propose this regulation to support the liability defense under the Small Business Liability Relief and Brownfields Revitalization Act of January 2002. The Act specified that potential buyers be protected from Superfund liability as long as they perform all appropriate inquiries into former uses of the land. The Act directed EPA to develop a standard for such reviews.

EPA used a negotiated rulemaking process to develop today’s proposed standards. This is a collaborative process in which a proposal is developed by a committee representing interests significantly affected by the rule. The committee, representing state, tribal and local governments, environmental justice groups, lenders and real estate developers collaborated on the proposal last November.

EPA emphasizes that the failure to detect contamination prior to purchase does not exempt a landowner from the obligation to clean up newly-discovered hazardous waste after the purchase.

Today’s proposal is part of an important overall EPA initiative to revitalize land by restoring cleaned up waste sites for productive economic and greenspace use. EPA believes that environmental cleanup across all EPA programs must be achieved with a consideration of the future needs of the neighboring community. Cleaning up previously contaminated properties for reuse can help reinvigorate communities and contribute to preventing sprawl.

For more information on the proposed rule, go to: https://www.epa.gov/brownfields/regneg.htm .