September 16, 2019

September 16, 2019

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EPA Issues Updated Guidance on “Common Elements” of Superfund Innocent Landowner Defenses

On July 29, 2019, Environmental Protection Agency (EPA) issued updated guidance on the “Common Elements” of the innocent landowner defenses under the Superfund statute: the Comprehensive Environmental Response, Compensation, and Liability Act. These defenses are essential to innocent parties that plan to acquire and develop brownfields properties and may be helpful for those who purchased a property they later discovered to be contaminated. The three defenses—which share many “common elements”—are:

  1. Innocent landowner (i.e., purchaser) defense—innocent purchaser did not know and had no reason to know of contamination when purchasing the site and has complied with other common elements.

  2. Bona fide prospective purchaser (BFPP) defense—innocent purchaser knew of contamination but acquired site after January 11, 2002, and meets all eight BFPP requirements.

  3. Contiguous property owner defense—innocent party owns property contiguous with a contaminated site and has complied with other common elements.

The guidance is the first update in the 16 years since the initial March 2003 Interim Guidance. While it does not break new ground on any particular issues, it provides a more complete discussion of the key requirements, gives examples to highlight the ways in which the common elements can be satisfied, and explains how EPA currently intends to exercise its enforcement discretion. It also serves as a significant reference document by combining the old guidance with new case law, rulemakings, and EPA guidance that have issued over the last 16 years.

Throughout the updated guidance, EPA now comprehensively references old and new authority on the common elements, including:

  • “All appropriate inquiries” – the common element that parties conduct adequate pre-acquisition due diligence.

  • “No affiliation” – the common element that an innocent landowner have “no affiliation” with a party liable at the site.

  • No “disposal” – the common element that innocent parties cannot have disposed of hazardous substances at the site.

  • Compliance with and implementation of land use restrictions and institutional controls – a common continuous requirement.

  • “Reasonable steps” – the common continuous requirement that parties take reasonable steps in response to known contamination at the site (including a substantially updated Attachment B providing many illustrative examples of reasonable steps).

  • Comfort/status letters – letters that EPA may provide in its discretion to assure parties that they are taking all reasonable steps at a given site.

To avail themselves of these defenses, one of the biggest challenges that landowners face is determining what constitutes “reasonable steps.” The update seeks to provide direction on this issue, but ultimately leaves it unresolved, stating that “courts have generally concluded that a landowner should take some positive or affirmative step(s)” and that “the determination will involve a site-specific fact-based analysis.” 2019 Guidance at 20. Thus the tension continues between Congressional intent to encourage brownfield development by protecting landowners and concerns about limiting exposure to or controlling the future spread of contamination. It is useful that EPA will continue its policy of making Comfort Letters available for at least some landowners, as these letters or other governmental agreements may explicitly define the site-specific “reasonable steps.” See 2019 Guidanceat 20 n. 82. For landowners, having a documented, site-specific roadmap for satisfying “reasonable steps” can help preserve the innocent landowner defenses.

Note that, as in the 2003 guidance, this update only gives EPA staff direction on exercising their enforcement discretion. That said, EPA intends for this guidance to encourage third party investment, and the more comprehensive discussion can give some additional level of understanding of the requirements. Indeed, EPA acknowledges that the guidance “may provide general information to landowners, developers, lenders, investors, or other third-party stakeholders who may wish to become involved with impacted properties.”

Ultimately, EPA “encourages parties to consult with their own counsel and environmental professionals prior to and during property ownership.”

© 2019 Beveridge & Diamond PC

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About this Author

Pamela D. Marks, Environmental Attorney, Beveridge Diamond Law Firm
Principal

Pamela Marks is leader of Beveridge & Diamond, P.C.’s CERCLA/Brownfields/Subsurface Contamination Practice Group and Managing Principal of the firm's Baltimore, Maryland regional office.  Ms. Marks focuses on advice and litigation concerning water discharges, solid and hazardous waste management, remediation, project development and beneficial reuse issues.  She provides counseling on environmental compliance, permitting, regulatory and risk management issues.  Ms. Marks has litigated on behalf of both plaintiffs and defendants.  

410-230-1315
Allyn Stern Environmental Attorney Beveridge Diamond
Of Counsel

Allyn brings over 30 years of insider understanding of government operations.

Her experience as former Region 10 Counsel at the Environmental Protection Agency (EPA) informs her deep policy, regulatory, and enforcement knowledge. Allyn draws on her breadth and depth of expertise to help clients comply with an array of environmental statutes and regulations applicable to their businesses, including Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) permit approvals, risk management under the Clean Air Act 112(r), civil and criminal enforcement, Superfund cleanup and redevelopment, and pollution prevention strategies.

Allyn's in-depth knowledge of EPA policies and Department of Justice protocols enables her to capably advise clients on their interactions with these agencies. She guides clients through environmental issues arising in business operations, real estate development and permitting, or litigation. She has extensive experience with many environmental statutes, particularly the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); RCRA; and CWA.

As Regional Counsel at EPA, she was the senior executive covering litigation strategy and counseling for all matters in the states of Washington, Oregon, Idaho, and Alaska. She also spent over 20 years as an EPA line attorney, then as a managing attorney in EPA’s San Francisco office covering California, Arizona, Nevada, Hawaii, and the territorial islands. She provided legal advice and strategy on hundreds of EPA decisions including tribal treaty rights and consultation, CWA permits, water quality standards, Total Maximum Daily Load allocations, Superfund removal and remedial actions, and many enforcement cases. She also focused on incident response and was selected to be a part of the investigation team following the Gold King Mine release. In San Francisco, she also served as Deputy Director for the regional air program.

Allyn has taught law since 2005, with positions at the University of California Hastings School of Law, Seattle University, and Seattle University Law School. She has taught courses on Negotiation Skills, Environmental Law, and Environmental Enforcement.

206.620.3027
Benjamin E. Apple, Environmental Attorney, Beveridge & Diamond Law Firm
Associate

Ben joined the firm following his graduation from Harvard Law School, where he served as Managing Editor of the Harvard Environmental Law Review while at Harvard Law School.  He also served as Director of Academic Affairs on the Student Representative Board, and as a member of the Harvard Human Rights Clinic.  He was also a research assistant to Professor Richard J. Lazarus.

Also during law school, Ben served as a law clerk for Advocates for Human Rights in New Orleans, a law clerk for Alternatives for Community and Environment in Boston, and...

202-789-6002