One impediment to local government acquisition of contaminated property is concern about potential liability for the cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, also known as “Superfund” or “CERCLA,” 42 U.S.C. §§ 9601-9675.
The U.S. Environmental Protection Agency (EPA) recommends that local governments refer to the statutory language of CERCLA, the regulations at 40 C.F.R. Part 300 (known as the “National Contingency Plan”), and relevant EPA guidance (referenced at the end of this document) for more detail. EPA’s Regional office responsible for the area where the property is located may also be able to provide information and assistance to local governments considering acquisition of contaminated properties. EPA also encourages local governments to consult with their state environmental protection agency and legal counsel prior to taking any action to acquire, cleanup, or redevelop contaminated property.
What is CERCLA?
CERCLA outlines EPA’s authority for cleaning up properties contaminated with hazardous substances regardless of whether the properties are in use or abandoned. Additionally, CERCLA establishes a strict liability system for determining who can be held liable for the costs of cleaning up contaminated properties. CERCLA also provides EPA with robust enforcement authorities to compel cleanups and recover EPA’s response and enforcement costs incurred atthese properties. Properties addressed under CERCLA authorities are commonly known as “Superfund sites.”
CERCLA also includes authority for EPA to provide grant funding for the assessment and cleanup of brownfield sites. CERCLA § 101(39)(A) defines a brownfield site as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.” Many of the properties that local governments may be interested in acquiring may qualify as brownfield sites.
For more general information about, and an overview of, CERCLA, please see EPA’s website at
http://www.epa.gov/superfund/policy/cercla.htm.
What are the various ways local governments become involved at contaminated properties?
Local governments may become involved at a contaminated property in a number of ways, many of which present opportunities to facilitate cleanup or redevelopment of contaminated properties. The ways include:
- Providing incentives to promote redevelopment (i.e., zoning, tax increment financing, etc.).
- Responding to an emergency on the property;
- Transferring of tax liens;
- Collaborating with the current property owner;
- Leasing of the property by the municipality;
- Acquiring the property and “simultaneously” transferring it to a third party;
- Acquiring the property with subsequent transfer to a third party; Acquiring the property and managing it by a land bank; or Acquiring the property long-term.
Yes. CERCLA is a strict liability statute that holds potentially responsible parties (PRPs) jointly and severally liable, without regard to fault, for cleanup costs incurred in response to the release or threatened release of hazardous substances. Under CERCLA § 107, a person, including a local government, may be considered a PRP if the person:
- Is the current owner or operator of the contaminated property;
- Owned or operated the property at the time of the disposal of the hazardous substance;
- Arranged for the hazardous substances to be disposed of or treated, or transported for disposal or treatment; or
- Transported the hazardous substances to the property.