A
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON DC 2C46C
OSWER Directive #9834.6
MEMORANDUM
SUBJECT: Policy Towards Owners of Residential Property at
Superfund Sites
FROM: Don R. Clay _
Assistant Administrate
Office of Solid Waste a»l(T|iyefgency Response
Raymond B. Ludwisz-ewski J;^L_ȣ*4
Acting Assistant''Administrator
Office of Enforcement I
Regional Administrators, Regions I - X
To:
This memorandum transmits to you the Agency's "Policy
Towards Owners of Residential Property at Superfund Sites,"
The guidance sets forth the Agency's enforcement policy
towards owners of residential property located on a Superfund
site under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CIRCLA), as amended by
the Superfund Amendments and Reauthorization Act of 1986 (SARA).
This guidance has been developed jointly by the Office of
Solid Waste and Emergency Response and Office of Enforcement.
The guidance reflects input from the Regions, Office of General
Counsel and the Department of Justice. There have been several
drafts of this guidance and changes based on comments have been
incorporated. We thank you for your assistance.
Attachment
cc: Director, Waste Management Division,
Regions I, IV, V, and VII
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III, VI, VIII, and IX
Director, Hazardous Waste Division, Region X
Director, Environmental Services Division,
Regions I, VI, and VII
Regional Counsel, Regions I-X
Received
DEC 0 2 1999
Enforcement & Compliance Docket
& Information Center
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OSWER Directive #9834.6
POLICY TOWARDS OWNERS OF RESIDENTIAL PROPERTY
AT SUPERPUND SITES
U.S. Environmental Protection Agency
Office of Solid Waste and Emergency Response
Office of Enforcement
Washington, D.C. 20460
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OSWER Directive #9834.6
I. INTRODUCTION
*
A. Purpose and Summary
This guidance describes EPA's poli.cy for enforcement 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 fails 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.
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 contamination 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
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
CIRCLA.
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; ;~ 2 OSWER Directive #9834.6
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. . v>. .-
"" ' -'' - ' '" -. ' ." .. . / '.,.;
C. '-i-Past Agency"Practice and Basis for Policy ..-. ; , .
' 1.' ' *",' - , -* , , ,. . ^ * HP ' "
' ' '- , ' * *--.*_*
In the past, the Agency has not required1"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. Despite .this general practice,
some owners of residential property :have asked EPA for individual
. assurances that theAgency.not take-*an enforcement action against
them for performance of the response action or payment of -
response costs. : The Agency rhas not been able to provide _-:
individual owners of residential .property with, assurances of no
enforcement action outside the framework of a legal settlement,
and th'is policy does not alter EPA's policy of not,providing no
action assurances.4 " .-'.. . - ._ . -~...
,-','' " ' -^ ' t
i /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 -tor'Agency
enforcement staff. - .. . -/-.* *v ?,.. -
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: ' ., ;
'- '- i ' .,-»,- ' , - -'. . f.
,.. . »
2 Under scMStion 107(a)(l) of CERCLA, a person is liable if
it is th* owner or operator of a facility. 42 U.S.C. Section
9607(a)(1). 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 :
9.601(9) (8) . ' - . :'.**
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. "
**i * i « , *
' "' ; - v4 .. See "Policy Against No'Action Assurances." (November 15,
1984). .,' -: :*.:*
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3 OSWER Directive #9834.6
o The terra "owner of residential property," means a
person, 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
tern also includes owners 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
property other than in quantities and uses typical of
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.
o The terra "residential property," refers to single
family residences of one-to-four dwelling units,
including accessory land, buildings or improvements
incidental to such dwellings which are exclusively for
residential use.
o The phrase "located on a Superfund site11 means
properties that are within an area designated 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.
In the exercise of its enforcement discretion, the Agency
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, efal. No. 85-4340 (D.N.J. February 8,
1991).
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;.....« 4 OSWER Directive #9834.6
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. Under this policy, EPA's exercise of
enforcement discretion will extend to Lessees of residential
property provided that the lessees' activities are consistent
with this policy. This policy also applies to persons who
acquire residential property through purchase, foreclosure, gift,
inheritance or other form,of ..acquisition, as long as those
persons' 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 response action at the site. 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.
This exercise of enforcement discretion applies to owners of
residential property located on a Superfund site who purchased or
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.
r ,
8 It 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.
t. ^
10 See Section IV of this policy for a further discussion
of other CERCLA obligations.
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5 OSWER Directive #9834.6
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 enforcement
discretion, will not require owners of residential property to
undertake or pay for response 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. 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)(1) of
CERCLA. Moreover, owners of residential property must comply
with institutional controls placed on their residential property
in order to facilitate performance of a response action and to
protect human health and the environment.
1 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 C^RCLAInformation
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
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" --'-'"' c 6 OSWER Directive #9834.6
~ Nothing!"in this policy .is -intended to; affect 'any other
obligations required of owners; of residential property or any
other .person under CERCLA or other federal, state and local
laws."'1 ''.EPA reserves its''authority "to obtain'-access''and te-
en join 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 "opportunities available* to
owners.of residentiai property located on4a Superfund site "to
'participate inl'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,list.u 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 U.S. 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 witri this guidance or its internal *
implementing procedures. . , ' , -
VI. j FURTHER INFORMATION " ' ',;*' ;' ;- ''; - />
'j For further information concerning this policy, please
contact. Gary, Worthman in the Office of Waste Programs Enforcement
at1.FTS (202) 382-5646, or Patricia Mott' in the office of
Enforcement at FTS ,(202) 245-3733. .^ * *
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,- ''. : ' " " '.- '.' ":-
''' 15 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.
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USE.
i UNITED STATES ENVIRONMENTAL PROTECTION AGc
* ' WASHINGTON DC 2C460
OSWER Directive # 9834.6FS
FACT SHEET
POLICY TOWARDS OWNERS OF RESIDENTIAL PROPERTY
AT SUPERFUND SITES
Prepared by the U.S. EPA Office of Solid Waste and Emergency
Response, Office of Waste Programs Enforcement, and the Office of
Enforcement
EPA ACTION:
EPA is issuing its POLICY TOWARDS OWNERS OF RESIDENTIAL PROPERTY
AT SUPERFUND SITES,
Under this policy the Agency, in the exercise of enforcement
discretion, will not take enforcement actions under the Superfund.
law against an owner of residential property to perform response
actions or pay response costs.
PURPOSE:
The Agency is issuing this policy to address concerns raised by
owners of residential property located on Superfund sites, and to
provide the Regions with a nationally consistent approach on this
issue. The guidance sets forth in writing what has been the
Agency's past practice towards owners of residential property
located on Superfund sites.
BACKGROUND;
Several sites that are the subject of a response action (removal
or remedial activities) under the Comprehensive Environmental
Response, Compensation, and Liability Act, as amended (CERCLA or
Superfund), include properties that are owned and used
exclusively as single family residences (one-to-four dwelling
units). At several larger sites, soil or ground water
contamination 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 Superfund sites
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 CERCLA. Such owners of
residential property have expressed concern that they may be
unable to sell these properties because the buyer (or its lending
institution) may also be concerned about potential liability.
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In the past, the Agency, in the exercise of its enforcement
discretion, has not required owners of residential property
located on Superfund sites to perform response actions or pay
response costs except where the residential homeowner's
activities lead to a release or threat of a release of hazardous
substances, resulting in the taking of a response action at the
site. The Agency has, however, asked owners of residential
property to provide access to the residential property and
requested that owners abide by institutional controls placed on
the property to prevent future releases.
The Agency is issuing this guidance to establish in writing what
,has been the Agency's past practice. Under this policy, the
Agency will continue to exercise its enforcement discretion and
will not pursue an owner of residential property ,to undertake
response actions or pay response costs. However, if the owner's
activities lead to a release or threat of release of a hazardous
substance resulting in the taking of a response action, this
policy does not apply, and the Agency will contemplate taking an
enforcement action against the owner. Owners of residential
property are not within the scope of this policy where they do
not use the property for residential purposes or fail to comply
with other CERCLA obligations (e.g., provide access or comply
with institutional controls placed on the residential property) .*
The Agency's exercise of enforcement under this policy will
extend to lessees of residential property, if the lessees'
activities are consistent with this policy. This policy also
applies to.past owners of residential property as well as future
owners of residential property. Whether a person who acquires
residential property has or had knowledge or reason to know that
contamination was present on the property at the time of purchase
or sale of the property will not affect EPA's exercise of
enforcement discretion under this policy. ,;
CONTACT; . .' -.:,-
To receive a copy of the policy, contact the National Technical
Information Service (NTIS) at (703) 487-4600 or (800) 336-4700.
For more information concerning this policy, contact Gary .
Northman in the U.S. SPA Office of Waste Programs Enforcement at
FTS (202) 382-5646, or Patricia Mott in the U.S. EPA Office of
Enforcement at FTS (202) 245-3733.
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