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Frequent Questions about Legal Issues

Cherokee County, Kansas
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The Cherokee Superfund site, once an enormous mining wasteland, is now safe habitat for wildlife and native vegetation and offers potential for light industrial use and grazing. For more information…

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.

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Frequently Asked Legal Questions

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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.

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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.

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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.

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Is there a critical revitalization statute / legal document?

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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:

  1. Not a PRP or affiliated with a PRP;
  2. Disposal occurred before purchase;
  3. All appropriate inquiries about contamination;
  4. Provide all legally required notices;
  5. Take reasonable steps to prevent releases;
  6. Provide access, cooperation, assistance;
  7. Compliance w/ institutional controls & no interference with cleanup; and
  8. 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.

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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.

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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.

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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.

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