v>EPA
                      United States
                      Environmental Protection
                      Agency
                    Office of
                    Solid Waste and
                    Emergency Response
Publication 9230.0-23FS
November 1991
Homeowners Exempted
From  Cleanup  Costs
  Office of Emergency and Remedial Response
  Office of Community Relations - Region 9
                                       Quick Reference Fact Sheet
      NATIONAL  POLICY  OVERVIEW
   The U.S. Environmental Protection Agency
(EPA) has established a national policy declaring
the average homeowner will not be required to
conduct or pay for cleanup when residential
property is part of a federal Superfund site. The
naapnalpoucy and guideline clarifies Superfund's
liability system which maintains owners and
operators of properties in need of federal cleanup
action are potentially liable for those actions.

   According to the policy, residential home-
owners will not be required to perform or pay for
cleanup actions at Superfuna sites. EPA may,
                    however, hold homeowners liable for cleanup
                    where their own actions have led to a release or
                    threatened release of hazardous substances
                    requiring a cleanup of their property, or where
                    the property is used for non-residential purposes.

                       This policy is designed to alleviate concerns
                    about cleanup liability for homeowners, as well
                    as parties involved in real estate transactions,
                    sucn as lenders and title insurers.

                       The complete text of the national policy is
                    contained in the following.
 Policy  Towards  Owners  of  Residential  Property  at  Superfund  Sites

I.   Introduction
 A. Purpose and Summary

   This guidance describes EPA's policy for enforce-
ment actions to recover response costs or to require
response actions under  the Comprehensive
Environmental Response, Compensation, and
Liability  Act of 1980 (CERCLA or Superfund) as
amended by  the Superfund Amendments and
Reauthorization Act of 1986 (SARA), with respect to
owners of residential property located on a Superfund
site.

   Under this policy, EPA, in the exercise of its
enforcement discretion, will not take enforcement
actions against an owner of residential property to
require such owner to undertake response actions or
pay response costs, unless the residential homeowner's
activities lead to a release or threat of release of
                    hazardous substances,' resulting in the taking of a
                    response action at the site.1 This policy does not apply
                    when an owner of residential property fails to
                    cooperate with the Agency's response actions or with
                    a state that is taking a response action under a
                    cooperative agreement with EPA pursuant to section
                    104(d)(l) of CERCLA This policy also does not apply
                    where the owner of residential property Bails to meet
                    other CERCLA obligations, or uses the residential
                    property in any manner inconsistent with residential
                    use.

                       EPA is issuing this policy to address concerns
                    raised by owners of residential property, and to
                    provide a nationally consistent approach on this issue.
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   B. Background

   Several sites that are the subject of a response
action (removal or remedial activities) under CERCLA
include properties that are used exclusively as single
family residences (one-to-four dwelling units). At
several larger sites, soil or ground water contamina-
tion  may be so extensive that there are several
hundred of these residential properties located on a
Superfund site.

   Some owners of residential property located on a
Superfund site are concerned about potential liability
for performance of a response action or payment of
cleanup costs  because they may come within the
definition of "owner" under the statute.2 Owners of
residential property located on a Superfund site have
expressed the concern that they may be unable to sell
these properties because the buyer and the lending
institution may also be concerned  about potential
liability.

   C Past Agency Practice and Basis for Policy

   In the past, the Agency has not required owners of
residential property located on a Superfund site to
perform response actions or pay response costs except
where the residential homeowners' activities lead to a
release or threat of a release of hazardous substances,
resulting in the taking of a response action at the site.3
Despite  this general practice, some owners of
residential property have asked EPA for individual
assurances that the Agency not take an enforcement
action against them for performance of the response
action or payment of response costs.  The Agency has
not been able to  provide individual owners of
residential property  with assurances  of no
enforcement action outside the framework of a legal
settlement, and this policy does not alter EPA's policy
of not providing no action assurances.4

   This  guidance instead constitutes a  general
statement of policy regarding the Agency's exercise of
enforcement discretion  with  respect to owners of
residential property located on a Superfund site. The
purpose of this policy is to continue the Agency's past
practice and  to provide guidance  for Agency
enforcement staff.

II.  Definition of  Key Terms

   The following definitions  are applicable for the
limited purposes of this policy, and do not represent
the Agency's interpretation of these or any similar or
related statutory terms in any context other than this
policy:
      The term "owner of residential property," means
   aperson, as defined under section 101(21) of
   CERCLA, who owns residential property located
   on a Superfund site, and who uses or allows the use
   of the residential property exclusively for
   residential purposes. The term also includes own-
   ers who make improvements that are consistent
   with   residential use. Such term does not include
   1) any owner who has conducted or permitted the
   generation, transportation, storage, treatment or
   handling of  hazardous substances on the
   residential uses; 2) any owner who disposes of
   hazardous substances on the residential property
   resulting in the taking of a response action; and 3)
   any owner who acquires or develops the residential
   property for commercial use, or for any other use
   inconsistent with residential use.

      The term "residential property," refers to single
   family residences of one-to-four  dwelling units,
   including accessory land, buildings or improve-
   ments incidental  tosuch dwellings which are
   exclusively for residential use.5

      The phrase "located on a Superfund site" means
   properties that are within an area designed for
   investigation or study under CERCLA, listed as a
   Superfund  site on the National Priorities List,
   identified as the subject of planned or current
   removal or remedial activities, where hazardous
   substances have come to be located, or which are
   subject to or affected by a removal or remedial
   action.

III.  Statement of Policy

   In implementing CERCLA, EPA may use
enforcement discretion  in pursuing potentially
responsible parties (PRPs) for enforcement actions. It
is  within the  Agency's  enforcement discretion to
identify  appropriate PRPs to perform  response
actions or pay response costs.6

   In the exercise of its enforcement discretion, the
Agency has determined that it will not require owners
of residential property located on a Superfund site to
perform a response action or pay response costs if the
owner's  activities are consistent  with  this policy.7
Under this policy, EPA's exercise of  enforcement
discretion will  extend  to lessees of residential
property provided that the lessees' activities are con-
sistent with this policy.  This policy also applies to
person who acquire residential  property through
purchase, foreclosure, gift, inheritance or other form
of acquisition, as long as those person's activities after
acquisition are consistent with this policy.8

   This  policy  does not apply  to an owner of
residential property who has undertaken activities
leading to a release or threat of release of hazardous
substances, resulting in  the taking of a release of
hazardous substances, resulting in the taking of a
                                                -2-

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response action at the site.9 In such situations, the
Agency would contemplate bringing an enforcement
action against the owner of the residential property to
perform a response action or to pay response costs. In
addition, if an owner of residential property located
on a Superfund site develops or improves the
property in a manner inconsistent with residential
use, or the development of the residential property
leads to a release or threat of  release of hazardous
substances resulting in the taking of a response action
at the site, then the owner would not be within the
scope of this policy. Also, if an owner of residential
property fails to provide the Agency with access to the
residential property located on a Superfund site to
evaluate  the need for  a  response action or to
implement a response action, or fails to comply with
any other CERCLA obligations, this policy would not
apply.10

    This exercise of enforcement discretion applies to
owners of residential property located on a Superfund
site who purchased or sold the residential property in
the past  or  who purchase or sell the  residential
property after the issuance of this policy. Whether an
owner of residential property has or had knowledge
or reason to know that contamination was present on
the site at the time of purchase or sale of the residential
property will not affect EPA's exercise of enforcement
discretion under this policy.

    This policy is not based on, and has no effect on,
the defenses to liability available to an owner of
residential property, or any  other person, under
section 107(b) of CERCLA. This policy is not related
to the "innocent landowner defense"  described in
sections 107(b)(3) and 101(35) of CERCLA; it is based
entirely on EPA's enforcement  discretion. Thus, the
ability of an  owner of residential property to assert
any defense to liability is unaffected by this policy.

IV. Other CERCLA Obligations

    Although the Agency, in the exercise of its  en-
forcement discretion, will not require owners
ofresidential property to undertake or pay for re-
sponse actions if the owners' activities are consistent
with this policy, to benefit from this policy an owner
of residential property must  comply with other
CERCLA obligations.

    To come within the scope of this policy, owners of
residential property must provide access to the
residential property when requested by EPA,  or
report information requested  by the  Agency.11  In
addition, owners of residential property must
cooperate with EPA and not interfere with any of the
Agency's activities on the residential property taken
to respond to the release or threat of release. Similarly,
owners of residential property must cooperate with
and not interfere with the activities of a state that is
taking a  response action under  a cooperative
agreement with EPA pursuant to section 104(d)(l) of
CERCLA. Moreover, owners of residential property
must comply with institutional controls placed on
their residential property in order to f?cilitate
performance of a response action and to prelect hu-
man health and the environment.12

    Nothing in this policy is intended to affect any
other obligations required  of owners of residential
property orany other person under CERCLA or other
federal, state and local laws.13  EPA reserves its
authority to obtain access and to enjoin owners of
residential property from interfering with response
actions, and to seek recovery of response costs if
bringing such actions becomes necessary.

    This policy does not change the oppoi.unities
available to owners ofresidential property located on
a Superfund site to participate in the response
selection process.  To the extent such parties wish to
receive individual notice of response activities, EPA
will provide individual notice of public meetings,
public comment periods or other public participation
activities to owners of residential property which are
on the Agency's community relations mailing list14
The eligibility of owners of residential property for
Technical Assistance Grants under CERCLA is also
unaffected by this policy.

V.  Purpose and Use of This Guidance

    This policy and any internal procedures adopted
for  its implementation are intended exclusively as
guidance for employees of the US. Environmental
Protection Agency. This guidance does not constitute
rulemaking by the Agency and may not be relied upon
to create a right or a benefit, substantive or procedural,
enforceable at law or in equity, by any person. The
Agency may take action at variance with this guidance
or its internal implementing procedures.

VI. Further Information

   For further information concerning this policy,
please contact Gary Worthman in the Office of Waste
Programs Enforcement at (202) 260-5646, or Patricia
Mott in the Office of Enforcement at (202) 260-3733.
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                    Footnotes
  1  This policy does not provide an exemption from
 potential CERCLA liability for any party; it is a statement of
 the Agency's enforcement discretion. Liability is governed
 by Section 107 of CERCLA.

  2 Under section 107(a)(l) of CERCLA, a person is liable if
 it is the owner or operator of a facility. 42 U.S.C. Section
 9607(a)(l). Under section 101(9)(B) of CERCLA, a facility is
 defined to include "any site or area where a hazardous
 substance...has...come to be  located." 42 U.S.C. Section
 960K9XB).

  3 The Agency has required owners of residential property
 to provide access to the residential property in order to
 assess the need for a response action or implement' a
 response action, and to otherwise cooperate with cleanup
 activities.

  4  See "Policy Against No Action  Assurances,"
 (November 15,1984).

  5 EPA notes that this definition of "residential  property"
 is consistent with  the  designation for single family
 residences under the National Housing  Act, 12 U.S.C.
 Section 1701.

  6 See generally, Heckler v. Chaney, 470 U.S. 821 (1985);
 U.S.  v.  Helen   Kramer,  et  al,  No.  89-4340
 (D.N.J. February 8,1991).

  7 Consistent with the Agency's no action assurance policy
 (see footnote 4), this policy does not require the Agency to
 make prospective determinations of whether particular
owners of residential property meet the requirements of
this policy.

  *  If the Agency has perfected a federal lien on  the
residential property prior to  the acquisition by the new
owner, this policy does not affect the status of that lien.
  9  The Agency's experience has been that in general,
activities which are undertaken consistent with single
family residential use do not lead to a release or threat of a
release of hazardous substances, resulting in a response
action being taken at a site.

  10 See Section IV of this policy for a further discussion of
other CERCLA obligations.

  "• The Agency has developed guidance which explains
the authorities and  procedures by which EPA obtains
access or information. See OSWER Directive #9829.2, Entry
and Continued Access under CERCLA (June 5,1987). See
also OSWER Directive #9834.4-A, Guidance on Use and
Enforcement of  CERCLA Information Requests and
Administrative Subpoenas (August 25,1988).

  12 Institutional controls are conditions or limitations
commonly placed on property by local or state authorities
to ensure that activities (e.g., excavation, construction or
other similar activity) undertaken by the owner  of
residential property do not exacerbate the conditions at the
site, in some way diminish the effectiveness of a remedy
which has been or is being implemented, or otherwise
present a threat to human health or the environment

  13 For example, if the owner of residential property has
knowledge that a release has taken place on the residential
property, the owner must notify appropriate authorities.

  14 For each site the Community Relations Coordinator in
each Region maintains a community relations mailing list.
                                                                Produced and distributed by
                                                              Office of Community Relations
                                                                      EPA Region 9
                                                               75 Hawthorne Street (H-l-1)
                                                                San Francisco, CA 94105

                                                                 Toil-Free Message Line
                                                                      (800) 231-3075

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