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
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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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