Contiguous Property Owners
The 2002 amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly known as Superfund) created a liability protection for landowners who own property that is or may be contaminated, but are not the original source of the hazardous substance contamination, commonly referred to as contiguous property owners (CPO). This provision protects parties who are victims of contamination from a neighboring property.
Similar to bona fide prospective purchasers (BFPPs), CPOs must meet certain threshold criteria and ongoing obligations. However, unlike a BFPP, persons who know, or have reason to know, prior to purchase, that the property is or could be contaminated, cannot qualify for the CPO liability protection. These parties, nonetheless, may still be entitled to rely on the BFPP landowner liability protection or the EPA may exercise its enforcement discretion not to pursue such persons as set forth in the EPA’s 1995 Contaminated Aquifer Policy.
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Threshold Criteria and Continuing Obligations
Like BFPPs, to qualify as a CPO, a landowner must meet certain threshold criteria including performing “all appropriate inquiries” prior to acquiring the property, demonstrating no “affiliation” with a liable party, and demonstrating that the landowner did not know or have reason to know that the property was or could be contaminated from other real property not owned or operated by the landowner. A CPO must also meet continuing obligations, such as complying with land use restrictions, not impeding the effectiveness or integrity of institutional controls, and taking “reasonable steps” to stop any continuing release and to prevent any threatened future release.
In 2004, the EPA issued the Interim Enforcement Guidance Regarding Contiguous Property Owners, which addresses the statutory protection in more detail. For more information on the CPO criteria and obligations, visit the Agency's Common Elements and Other Landowner Liability Guidance webpage.
Contaminated Aquifer Policy
Owners of property above aquifers contaminated from an off-site source may be concerned about Superfund liability even though they did not cause and could not have prevented the ground water contamination. In 1995, prior to the 2002 amendments to CERCLA, the Agency issued Final Policy Toward Owners of Property Containing Contaminated Aquifers (5/24/1995) in response to this concern. The policy states that the EPA will not require cleanup or the payment of cleanup costs if the landowner did not cause or contribute to the contamination. It also states that if a third party sued or threatened to sue, the EPA would consider entering into a settlement with the landowner covered under the policy to prevent third party damages being awarded.
In the 2002 CERCLA amendments, the CPO liability protections said that “reasonable steps” required of a contiguous property owner do not include conducting groundwater investigations or installing groundwater remediation systems, except in accordance with the EPA’s 1995 Contaminated Aquifers Policy. Subsequently, the EPA clarified the relationship of the Contaminated Aquifer Policy to the CPO liability protection in the 2004 Interim Enforcement Discretion Guidance Regarding Contiguous Property Owners.
Other Superfund landowner liability protection information is available on the following webpages:
- Third Party Defenses/Innocent Landowners
- Residential Property Owners and Lenders
- Bona Fide Prospective Purchasers
Learn more about :
- Common Elements and Other Landowner Liability Guidance
- State and Local Government Activities and Liability Protections