Part i explores the circumstances that led to the enactment of cercla. The innocent landowner defense under superfund richard h. To apply for innocent spouse relief, file form 8857, request for innocent spouse relief. Two mechanisms use innocent landowner status innocent. Any liable party may be required to cleanup all contamination at a site, even if that party only caused a small amount of the total contamination. Cerclas strict liability scheme, as grounded solely on the status of a per. Interest reasonable steps comfortstatus letter attachment c to the 2003. Request innocent spouse relief using form 8857 internal. Facing growing concern that the comprehen sive environmental response, compensation, and liability acts cercla statutory scheme stifled the purchase, financing, and redevelopment of property that was either contaminated.
Please indicate, as applicable, if the following items are. Section 9607b3, provides a defense for liability from hazardous. Hek restaurants former hardees, 2107 camanche avenue, clinton, iowa. Environmental protection agency epa or the agency is taking final action to amend the standards and practices for all appropriate inquiries to update an existing reference to a standard practice revised by astm international, a widely recognized standards development organization. Innocent landowner programs and their effects on environmental risk and property value impacts. Start studying modern real estate practice unit 21. These landowner liability protections are selfimplementing and, therefore, epa generally will not need to be involved in sitespecific liability determinations. Pdf this article examines the growing use of state programs that protect owners or purchasers of properties that may be impacted by. Phase i environmental site assessment process, us epa has taken the step necessary to make it clear that the 20 phase i standard should dictate future landowner efforts to meet the. Innocent landowners and prospective purchasers under the. Persons who purchased property prior to may 31, 1997, will qualify for the innocent landowner defense if they exercised good commercial and customary practices of due diligence at the time they purchased the property.
Environmental due diligence in real property transactions robert l. Theres more to life than just work let the aba help balance your personal life with tips on wellness, relationships, worklife balance. I got a buddy interested in deer hunting recently and he is just starting out. Contiguous property owners, or innocent landowners. Epa gives new astm standard the nod in proposed rule. Liability clarification letters comfort and site status letters. Emerging contours of the cercla innocent purchaser defense. All appropriate inquiries, or aai, is the process of evaluating a propertys environmental conditions and assessing potential liability for any contamination. Epa issues guidance on new cercla landowner defenses last december, congress amended the comprehensive environmental response, compensation and liability act cercla or superfund to modify the innocent landowner defense and to add liability exemptions for bona fide prospective purchasers bfpps and. Pitts t his edition of environment and the appraiser examines the growing use of state programs that protect owners or purchasers of properties that may be impacted by environmental contamination.
Innocent landowner status as a defense to liability put most simply, the innocent landowner defense allows owners of contaminated property to escape cercla liability if the contamination was placed on the property before acquisition, and the landowner did not know, or have reason to know, at the time of acquisition of the contaminations presence. Study 20 terms modern real estate practice unit 21. Innocent landowners and prospective purchasers in the. Alaska is the only state without a law school, so for many clerks, the first true exposure to both alaska and alaskan law occurs when the clerkship begins. Emerging contours of the cercla innocent purchaser defense g. The innocent purchaser defense and offense in the lsrp era new jersey should look to massachusetts for guidance on refining program. In order to meet the statutory criteria of the innocent landowner liability protection, however, a person must establish by a preponderance of the evidence that the act or omission that caused the release or threat of release of hazardous substances and the resulting damages were. The program provides a process for current owners and operators of property to be certified as innocent, when they can sufficiently demonstrate that their property has been.
The interim guidance regarding criteria landowners must meet in order to qualify for bona fide prospective purchasers, contiguous property owner, or innocent landowner limitations on cercla liability common elements, describes the overlapping threshold criteria and ongoing obligations that all three landowner types must meet and thus the. Superfund cleanup subject listing enforcement us epa. Pursuant to the indiana department of environmental management idem nonrule policy document w0051, brownfields program comfort and site status letters policy april 18, 2003, the indiana brownfields program may issue a comfort or site status letter to stakeholders at. The innocent landowner defense, while not titled as such, is a term of art that has been coined by commentators and practitioners. Llecture, pppowerpoint slides, vvideo clips and gegroup exercises. Innocent landowner status as a defense to liability the innocentlandowner defense evolved over three enactments. Edis is the electronic data information source of ufifas extension, a collection of information on topics relevant to you. The affirmative defense of an innocent landowner versus the. The airport improvement program aip funds acquisition of land around airports for aeronautical use. New landowners may be held liable under a variety of. Phase i environmental site assessment process contaminants comprehensive environmental response, compensation and liability act epa. Epa issues guidance on new cercla landowner defenses. Compensation and liability act cercla or superfund to modify the innocent landowner.
The guidance does not state whether epa will limit familial. The 1998 farm bill which authorizes the annualized collection of forest resource data prevents us from disseminating information that can be associated with a specific landowner. Landowner meaning in the cambridge english dictionary. Innocent landowner programs and their effects on environmental risk and property value impacts by thomas o. The innocent landowner defense was enacted in 1986 and appears in 42 u.
In addition, the act provides three landowner defenses to cercla liability. In order to meet the statutory criteria of the innocent landowner liability protection, however, a person must establish by a preponderance of the evidence that the act or omission that caused the release or threat of release of hazardous substances and the resulting damages were caused by a. Airport land acquisition federal aviation administration. In 2002, congress enacted the brownfields amendments, which amended the comprehensive environmental response, compensation, and liability act cercla, commonly known as superfund by adding new landowner liability protections and clarifying the existing innocent landowner protection and by providing funding for grants for the assessment and. The liability protections are for landowners tenants who qualify as. New phase i requirements for real estate transactions. The innocent landowner defense is a legal defense that can be asserted to restrict a property owners liability for cleaning up contaminati on and is intended to protect those who. The third exempts the bona fide prospective purchaser from owner and operator liability despite preacquisition awareness of contamination on the property, if certain conditions are met. In general, this requires a showing that an unrelated party was the sole cause of the contamination and damage and that the landowner guarded against the foreseeable acts and omissions of the responsible party. The innocent purchaser defense and offense in the lsrp era. It is a partnership between chris kelleher and david erckman.
The revitalization handbook addressing liability concerns at contaminated properties 121119 2019 edition of the revitalization handbook summarizes the federal statutory provisions and epa policy and guidance documents that address the potential liability concerns of parties involved in the cleanup and revitalization of contaminated sites. Indiana brownfields program comfortsite status letter. Alabama department of environmental management land division scrap tire program division 3354 1400 coliseum boulevard montgomery, alabama 361102059 334 2717700 cite as adem admin. Status of the brownfields amendments landowner liability protections by irving w. Epa, interim guidance regarding criteria landowners must meet in order to quality for bona fide prospective purchaser, contiguous property owner, or innocent landowner limitations on cercla liability common elements march 6, 2003 epa, bona fide prospective purchasers and the new amendments to cercla may 31, 2002 9. Owner, or innocent landowner limitations on cercla liability 2003 interim. Manufacturers, insurers, bankers, senior corporate managers, and even cleanup contractors now worry about their liability under cercla. Attach a statement explaining why you qualify for relief. Postclosing concerns and tenant issues update page 4 operatorliability imposed under this section. As the owner, and possibly operator, of the contaminated property. Cpo, or innocent landowner ilo, must meet certain threshold criteria and satisfy certain continuing obligations to maintain its status as an eligible borrower. The current status of public and private brownfields.
These include, but are not limited to the following. The brownfields study group was created in 1998 at the direction of the governor and state legislature, to evaluate wisconsins current brownfields initiatives and recommend changes, as well as propose additional incentives for the cleanup and reuse of abandoned or underused properties with real or perceived contamination. The 2002 brownfield amendments to the superfund law cercla provide a superfund liability defense for property owners who qualify as bona fide prospective purchasers of known contaminated property, as long as the property transaction was completed after january 11, 2002. Joint minerals, business and economic development interim committee a bill. A look at the current status of public and private brownfields redevelopment. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence. Innocent owner defense law and legal definition uslegal. Status of the brownfields amendments landowner liability. The epa guidance on landowner liability and the innocent. Environmental amendments will affect transactions involving real. Where to file mail your completed form 8857, request for innocent spouse relief, to one of the following addresses. Environmental due diligence in real property transactions. Persons who meet the cercla 10140 criteria and the cercla 107r criteria. The legal lot determination process may be used to provide a one time exemption to the subdivision requirements for an innocent purchaser.
White paper qualify for the innocent landowner defense. Comfortsite status letter request submittal checklist please complete this checklist and submit it with your request along with all supporting documentation to ensure your request is complete. He asked me today what the rules or specifications are as far as using landowner tags to tag your deer. The comprehensive environmental response, compensation and.
Federal register amendment to standards and practices for. Innocent landowners and prospective purchasers in the superfund act summary the superfund act contains several mechanisms that eliminate or contain liability, or reduce liabilityrelated transaction costs, normally incurred under the act by persons that acquire contaminated land. E1527 standard practice for environmental site assessments. Further confusing matters is the fact that the reasonable steps obligation for the innocent landowner is in the section of that defense defining what constitutes reason to know. To establish and preserve the innocent landowner defense, several requirements must be met. Cercla and tenants as bona fide prospective purchasers. Please write your name and social security number on any attachments.
Every phase i environmental site assessment conducted with epa brownfields assessment grant funds must be conducted in compliance with the aai final rule at 40 cfr part 312. It is defined in section 983d of title 18 of the united states code and is part of the code that defines forfeiture laws and more specifically the general rules for civil forfeiture. This section, which is read in conjunction with the thirdparty defense in 42 u. Cercla liability and local government acquisitions and. Common elements and other landowner liability guidance. The innocent landowner provisions provide an affirmative defense when a person meets the requirements of the cercla 107b3 thirdparty defense 16and the criteria set forth in cercla 105.
Interim guidance regarding criteria landowners must meet in order to. Document has no release version edis electronic data. Agreement and release of liability in consideration for being permitted to utilize the land, facilities and equipment owned by. The superfund liability defense for bona fide prospective purchasers. Astm e1527 standard practice for environmental site. They participate in such programs as science fair judging, classroom outreach, job fairs, museum events, and jamborees. Full powerpoint slide presentation along with selected video clips and break out group discussion. Bona fide prospective purchasers superfund liability defense. Landowner liability protections enforcement us epa. The basics of illicit discharges storm drain a storm drain can be either an enclosed pipe or an open channel. The innocent landowner provision does not contain similar no affiliation language.
Protection of the environment is in the forefront of american politics and national attention. Epa issues guidance interpreting scope of new cercla. Landowner liability this note examines cerclas scope of landowner liability, the innocent landowner defense and the effect of the defense on real estate transactions. Epa issues guidance interpreting scope of new cercla defenses. The innocent landowner defense is a legal defense that can be asserted to restrict a property owners liability for cleaning up contaminati on and is intended to protect those who own property aft er an impact has occurred. An important means to achieve this goal is by cleanup and regulation of hazardous waste sites.
Learn vocabulary, terms, and more with flashcards, games, and other study tools. Federal district court clarifies innocent landowner defense. Bona fide prospective purchaser defense under cercla. This can be particularly problematic when the person responsible for conducting the remediation is not the seller of the property and thus has no incentive to release the information. The city of clinton selected this site as their number five priority site.
For purposes of epas common elements guidance and this reference sheet, innocent landowner refers only to unknowing purchasers as defined in cercla 105ai. Brownfields all appropriate inquiries brownfields us epa. Environmental liability in real estate lou tulga, ccim crb 4 hour course outline. Epa is taking direct final action to amend the standards and practices for all appropriate inquiries to update an existing reference to a standard practice recently revised by astm international, a widely recognized standards development organization. Jun 27, 2012 landowner if there is new hazardous substance contamination for which he is responsible cercla 101 40a mem. The innocent owneroperator program iop was created to implement texas health and safety code thsc, chapter 361, subchapter v, which became effective on sept. Innocent landowners are persons who can demonstrate, among other requirements, that they did not know and had no reason to know prior to purchasing a property that any hazardous substance that is the subject of a release or threatened release was disposed of on, in, or at the property. Posted in transactions involving contaminated property. Permission to hunt on private land form to be retained by the hunter according to ic 14. Model state action comfort status letter repowering americas land initiative 12512 model document comfort status letter regarding statelead sites and renewable energy development. Many acquisitions are sizable in acreage and costs, and are usually adjacent to existing airport property. Whether in large metropolitan areas or small rural towns, our employees promote science through community engagement. It is a criminal offense to release data that can be linked to a specific landowner. Enforcement discretion guidance regarding statutory.
If research for evidence of a legal lot proves that a lot was not created legally, customers should see kcc title 19a. An innocent owner defense is a concept in united states law providing for an affirmative defense that applies when an owner claims that they are innocent of a crime and so their property should not be forfeited. He asked if there was a certain amount of acres you had to own and how many deer you could tag with a landowner tag. Innocent spouse relief may also be available if you were a resident of a community property state see list of community property. The farreaching effects of the nations hazardous waste laws have become legendary. Mayst he that maketh haste to be rich shall not be innocent proverbs 28. Bfpp status may be 4 cercla 105aii also discusses involuntary acquisitions for a unit of state or local government in the context of the innocent landowner defense pursuant to cercla 105a.
Contiguous property owner, or innocent landowner limitations on cercla liability common elements guidance issued by epa on march 6, 2003. If a hazardous substance is released, or threatened to be released. Federal district court clarifies innocent landowner. These parties may be considered innocent landowners under many state laws if. Pdf innocent landowner programs and their effects on. As indicated in our latest blog post, here, on us epas adoption of the new astm e1527 standard practice for environmental site assessments.
609 1252 141 202 748 582 1341 121 968 390 224 1268 423 670 1160 54 52 102 1615 499 243 1012 931 931 1187 1087 1255 1510 969 1474 1597 730 1613 762 1517 598 164 877 155 1318 118 1164 565 711 1400 334 1195 1359 175 840