• CERCLA offers certain protections to anyone who unknowingly purchases contaminated property – provided the prospective landowner took certain precautions.
• There are three possible defenses to liability: an act of God, an act of war, or action or omission by a third party under certain circumstances.
• A person may challenge any regulation promulgated under CERCLA, only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit.

All appropriate inquiries

An innocent landowner is a person who, after making “appropriate inquiry” into previous ownership and uses of the property, purchased or acquired the property without knowledge of the presence of hazardous substances on the property. CERCLA 101(35)(B) offers certain protections to anyone who unknowingly purchases contaminated property – provided the prospective landowner took certain precautions. Making “all appropriate inquiries” is a process of evaluating a property’s environmental conditions and assessing potential liability for any contamination and is a required step for obtaining CERCLA protection.

EPA established regulations pertaining to all appropriate inquiries at 40 CFR 312. The regulation requires that the results of an all appropriate inquiries investigation be documented in a written report. While no format, length, or structure is specified, EPA suggests potential content for the report and recommends prospective landowners meet site assessment procedures in the American Society for Testing and Materials standards listed at 40 CFR 312.11.

Liability

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 107 outlines who can be held liable for contamination pursuant to CERCLA and the costs this liability encompasses. These are known as responsible parties (RPs). When the Environmental Protection Agency (EPA) is investigating contamination at a site, any person potentially covered by 107(a) can be designated as a potentially responsible party (PRP). RPs include the current owner and operator of a contaminated property, any person who at the time of disposal of hazardous substances owned or operated the property, or any person who arranged for disposal or transportation of hazardous substances at a property where a release has occurred. Section 107(b) provides three possible defenses to liability: an act of God, an act of war, or action or omission by a third party under certain circumstances. Section 107 also provides several exemptions from liability such as the normal application of a registered pesticide product (107(i)).

Financial responsibility

CERCLA 108(b) requires that EPA promulgate regulations concerning financial responsibility to cover liability under 107 of the Act. These regulations would require that any facility responsible for managing hazardous substances prove that it has the means to pay for any potential contamination at the site. However, no regulation to implement 108(b) of the statute has been promulgated to date.