Frequent Questions about Legal Issues
Frequently Accessed Laws, Regulations, and Legal Information
- Small Business Liability Relief and Brownfields Revitalization Act
- All Appropriate Inquiry
- Comfort/Status Letters (PDF) (18pp, 61K)
- Underground Storage Tanks Lender Liability
- Windfall Lien Guidance (PDF) (32p, 388K)
- Common Elements Guidance (PDF) (22p, 368K)
Useful Legal Fact Sheets
- Windfall Lien FAQs (PDF) (4p, 157K)
- Contiguous Property Owner Guidance Reference Sheet (PDF) (5p, 55K)
- Common Elements Reference Sheet (PDF) (6p, 204K)
Cherokee County, Kansas
The cleanup of contaminated property and the clarification of environmental cleanup liability are the building blocks to the sustainable reuse of previously-used property. There are complex legal issues associated with reuse of all contaminated properties. In most cases, all are surmountable. The legal issues that might arise during the revitalization of a contaminated property will vary based on the type of contaminated site, as different types of sites are tied to different statutory and programmatic authorities. This page answers common questions about the legal issues of reuse and revitalization and discusses the statutory authorities associated with the various types of contaminated sites.
Frequently Asked Legal Questions
- I want to purchase a contaminated site - what do I need to know about legal issues?
- Should I find out about the available liability protections before purchasing the site?
- What laws govern the different types of contaminated sites and how will these affect reuse and revitalization efforts?
- Federal Facilities
- Resource Conservation and Recovery Act (RCRA)
- Underground Storage Tanks
- Is there a critical revitalization statute / legal document?
- What does BFPP mean?
- What are windfall liens and how might they affect my revitalization project?
- How do I find out what liability protections are available?
- Whom do I talk to for more information about legal issues?
I want to purchase a contaminated site - what do I need to know about legal issues?
Legal issues are important when buying or reusing contaminated and formerly contaminated properties. The cleanup of contaminated property and the clarification of environmental cleanup liability are the building blocks to the revitalization of contaminated and formerly contaminated property. There are complex legal issues associated with reuse of all contaminated properties. In most cases, all are surmountable and the property can be bought and reused with properly managed liability protections. Of note, the legal issues that might arise during the revitalization of a contaminated property will vary based on the type of contaminated site, as different types of sites are tied to different cleanup laws.
Should I find out about the available liability protections before purchasing the site?
Yes. For some types of contaminated properties, liability or responsibility for the cleanup attaches to a purchaser of such property even if the purchaser did not cause the contamination. So it is often the best practice to research the site and determine what liability protections are available and to obtain those protections before taking title to the property. The good news is that there are numerous liability protections that a person can obtain to protect themselves from all or some of the legal responsibility for the cleanup.
What laws govern the different types of contaminated sites and how will these affect reuse and revitalization efforts?
The following list provides links where you can go for more information about the laws and regulations that govern each of the site types.
EPA's Brownfields Liability page offers useful information about liability associated with redeveloping brownfields properties. The Brownfields Law clarifies CERCLA liability as related to brownfields. Other related laws and regulations impact brownfields cleanup and reuse through financial incentives and regulatory requirements. The Brownfields Laws and Statutes page also offers links to information about brownfields-related laws.
The Brownfields Handbook: How to Manage Federal Environmental Liability Risks summarizes the statutory and regulatory provisions of CERCLA and RCRA, and the policy and guidance documents most useful in managing environmental cleanup liability risks associated with brownfields and other sites.
- Federal Facilities
A number of environmental laws govern the cleanup and reuse of Federal Facility sites:
- CERCLA of 1980, better known as Superfund, amended by the Superfund Amendments and Re-authorization Act (SARA) of 1986 and the Brownfields Amendments of 2002.
- The Defense Authorization Amendments and Base Realignment and Closure Acts (BRAC) of 1998 and the Defense Base Closure and Realignment Act of 1990.
- The Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984.
- Federal Facility Compliance Act of 1992.
- Resource Conservation and Recovery Act (RCRA)
RCRA sites are governed by the Resource Conservation and Recovery Act. The RCRA Corrective Action Program compels facility owners and operators to address the investigation and cleanup of hazardous releases themselves. When RCRA sites, or portions of RCRA sites, are being sold or transferred to new owners for reuse, questions of liability for any further cleanup actions often arise. EPA's RCRA liability page summarizes the liability issues that could arise at RCRA sites.
Superfund imposes liability on parties responsible for, in whole or in part, the presence of hazardous substances at a site. A number of environmental laws govern the cleanup and reuse of Superfund sites:
- Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
- Superfund Amendments and Reauthorization Act (SARA)
- Small Business Liability Relief and Brownfields Revitalization Act (Brownfields Law) - By establishing that landowners who qualify as bona fide prospective purchasers, contiguous property owners, or innocent landowners are not liable under Superfund, this amendment to CERCLA has the effect of facilitating reuse and revitalization of Superfund properties. More information on Superfund liability is available on EPA's Cleanup Enforcement web page.
- Underground Storage Tanks
Revitalization of UST sites falls under a number of environmental laws:
- RCRA – this act established regulation of USTs.
- 1984 Hazardous and Solid Waste Amendments (HSWA) – These amendments addressed the problems of leaking UST systems.
- 2002 Brownfields Law – This amendment to CERCLA includes a key provision allocating 25 percent of funding each year to assess, cleanup, and ready for reuse petroleum brownfields sites.
Is there a critical revitalization statute / legal document?
- Brownfields Law - On January 11, 2002, President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act ("the Brownfields Law"). The Brownfields Law amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) by providing funds to assess and clean up brownfields; clarifying CERCLA liability protections; and providing funds to enhance state and tribal response programs. Other related laws and regulations impact brownfields cleanup and reuse through financial incentives and regulatory requirements.
The 2002 Brownfields Law expanded EPA's assistance by providing new tools for the public and private sectors to promote sustainable brownfields cleanup and reuse. It is important to remember that while aspects of the Brownfields Law apply to most types of contaminated property, the legal issues at some sites will not be encompassed or solved by the 2002 amendments. The 2002 amendments have two main components:
- Bona Fide Prospective Purchaser (BFPP) provision
- Windfall Lien provision: the property is subject to windfall lien only if certain conditions exist
- Final All Appropriate Inquiries Rule - On November 1, 2005, EPA published a final rule setting federal standards for the conduct of all appropriate inquiries. The final rule establishes specific regulatory requirements for conducting all appropriate inquiries into the previous ownership, uses, and environmental conditions of a property for the purposes of qualifying for certain landowner liability protections under CERCLA. All appropriate inquiries must be conducted in compliance with the final rule in order to obtain protection from potential liability under CERCLA as an innocent landowner, a contiguous property owner, or a bona fide prospective purchaser.
What does BFPP mean?
BFPP stands for Bona Fide Prospective Purchaser. The BFPP provision was set forth in the 2002 Small Business Liability Relief and Brownfields Revitalization Act ("the Brownfields Law"). This law is explained in more detail above. One of its two main tenets is the Bona Fide Prospective Purchaser (BFPP) provision, which is the primary legal protection for prospective purchasers. Landowners who qualify as bona fide prospective purchasers, contiguous property owners, or innocent landowners are not liable under Superfund. For prospective purchasers acquiring property after January 11, 2002, there are 8 Criteria for achieving and maintaining BFPP Status:
- Not a PRP or affiliated with a PRP;
- Disposal occurred before purchase;
- All appropriate inquiries about contamination;
- Provide all legally required notices;
- Take reasonable steps to prevent releases;
- Provide access, cooperation, assistance;
- Compliance w/ institutional controls & no interference with cleanup; and
- Compliance with information requests/subpoenas.
EPA has developed guidance and fact sheets to help prospective purchasers understand the BFPP provision. EPA's Common Elements Guidance (PDF) (22pp, 366K) lays out and explains the 8 criteria that prospective purchasers must meet. A Common Elements Reference Sheet (PDF) (6pp, 204K) highlights the main points of the guidance through short summaries and FAQs.
What are windfall liens and how might they affect my revitalization project?
A windfall lien CERCLA §107(r) is a CERCLA statutory lien on a property for the increase in the fair market value of that property attributable to EPA's cleanup efforts. A windfall lien can only arise on properties where the United States spends money cleaning up the property. The purpose of the windfall lien is to prevent a developer from profiting unduly from a taxpayer cleanup. The windfall lien is limited to the lesser of EPA's unrecovered response costs or the increase in fair market value attributable to EPA's cleanup. At the vast majority of Brownfield sites, there is no windfall lien. Windfall liens may be present at some Superfund sites, but not necessarily at all of them. If EPA has outstanding response costs and will substantially increase the fair market value of a Superfund site because of its cleanup, then EPA will evaluate whether the purchaser would unfairly be pocketing that increase in value. If so, and if it is appropriate according to EPA's Windfall Lien Guidance (PDF) (32pp, 386K), then EPA will offer to settle the value of the windfall amount or perfect a Windfall Lien on the property for that amount.
How do I find out what liability protections are available?
Because each type of site is cleaned up under a different cleanup law, a person seeking to obtain liability protection will have to determine what type of site they are working with. If you don't know the site type, the Getting Started page can walk you through the steps to figure this out.
Once you have determined which cleanup law and governmental entity was (or is) involved in the cleanup of your property, you will be able to predict more accurately what legal issues you might encounter in your revitalization project. In addition to researching these issues, EPA encourages people to consult with their legal counsel on liability protection matters.
Whom do I contact for more information about legal issues?
Region 7 staff can provide information to help you work through legal issues associated with contaminated and formerly contaminated properties. Contact the Region 7 staff associated with your site, or the Region's Revitalization Staff.