Summary of "Guidance on Landowner Liability Under Section 107 (a) 1 of CERCLA, De Minims Settlements Under Section 122 (g) (1) (b) of CERCLA, and Settlements With Prospective Purchasers of Contaminated Property"


                        United States
                        Environmental Protection
                        Agency
 Off ice of
 Solid Waste and
 Emergency Response
Publication 9835.9FS
May 1991
                        Summary of "Guidance on Landowner Liability under
                        Section 107(a)1 of CERCLA, De Minimis Settlements under
                        Section 122(g)(1)(b) of CERCLA, and Settlements with
                        Prospective Purchasers of Contaminated Property"
Office of Waste Programs Enforcement
CERCLA Enforcement Divisfon/GEB/OS-510
                        Quick Reference Fact Sheet
        Section 107(b){3) of the Superfund Amendments and
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Guidelines for De Minlmls Settlements
with Landowners

Information Gathering. The Agency will place the
burden on the landowner of coming forward with
information establishing his eligibility for a de
minimis settlement. The Agency may then use its
information gathering authority under §§104(e)
and 122(e) of  CERCLA to supplement the
information produced by the landowner. The
landowner should provide information about:

    •  his knowledge at the time of acquisition;

    •  whetherthelandownerexercisedduecare;
       and

    •  whether the landowner contributed to the
       release or threat of release through any act
       or omission.

Settlement.  Landowners entering into de minimis
settlements must be prepared to providesite access
and cooperation with the Agency's response
activities, as well ascash payments for the response
activities. Landowners must file a notice in the
local land records stating that hazardous waste
disposal took place at the site. The landowner also
must agree  not  to file any suit against the U.S.
concerning response actions at the site.

In  exchange,  the  landowner will receive
contribution protection and a covenant not to sue.
Covenants not to sue should contain reopeners in
case of a discovery of new information leading to
the conclusion that the landowner did not meet the
requirements for a de minimis settlement.

Type of Agreement. De minimis settlements must
be entered either through judicial consent decrees
or through administrative orders on consent. De
minimis settlements with landowners should'be
concluded separately from agreements with other
PRPs.

Policy on Prospective Purchasers

Aprospectivepurchaserwillbe required to pro vide
a cash payment, agree not to file any suit against
the US. concerning the site, and file a notice in the
local land records that hazardous waste disposal
took place at the site. In return, the Agency will
provide the prospective purchaser with a covenant
not to sue.

The Agency may grant a covenant not to sue to a
prospective purchaser if an enforcement action is
anticipated and if the prospective purchaser
participates in a cleanup. The following are criteria
for entering into  covenants not tc sue v/K-i
prospective purchasers:

   •  The Agency participates in an enforcement
       action at the facility;

   •  The Agency will receive a substantial
       benefit for cleanup;

   •  Continued  operation  or new  site
       development  will not aggravate  or
       contribute  to existing contamination  or
       interfere with the remedy; and

   •  The prospective purchaser is financially
       viable.

For more information or questions, contact the
Guidance and Evaluation Branch, OWPE, at FTS
475-6770.
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