f/EPA
Office of Site Remediation Enforcement
Policy and Program Evaluation Division 2273G
United States
Environmental Protection.
Agency ' .
Office of Enforcement and
' Compliance Assurance
November 1995
Policy Toward Owners of
Property Containing
Contaminated Aquifers
This fact sheet summarizes a new EPA policy regarding groundwater contamination. The "Policy
Toward Owners of Property Containing Contaminated Aquifers" was issued as part "of EPA's
Browrtfields Economic Redevelopment Initiative which helps states, communities, and other
stakeholders in economic redevelopment to work together in a timely manner to prevent, assess, safely
clean up, and sustainably reuse brownfields. Brownfields are abandoned, idled^ or under-used
industrial and commercial facilities where expansion or redevelopment is complicated by real or
perceived environmental contamination,
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EPA issued this policy to help owners of property to which groundwater contamination has migrated
or is likely to migrate from a source outside the property: This fact sheet is based on EPA's
interpretation of the Comprehensive Environmental Response, Compensation, and Liability Act .
(CERCLA:, commonly, known as Superfund). and existing EPA guidance, Under the policy, EPA will
not take action to compel such property owners to perform cleanups or to reimburse the agency for
cleanup costs. EPA may also consider de minimis settlements with such owners if they are threatened
with law, suits by third parties.,
Background
Approximately eighty-five percent of the sites
listed on the National Priorities List involve
some degree of groundwater contamination.
The effects of such contamination are often
widespread because of natural subsurface
processes such as infiltration and groundwater
flow. It is sometimes difficult to determine the
source of groundwater contamination.
Under Section 107(a)(I) of CERCLA (also
'found at 42 United States Code
§ 9607(a)(l)),
any "owner" of contaminated property is
normally liable regardless of fault. This
. section of CERCLA creates uncertainty about
. the liability of owners of land containing
contaminated aquifers who did not cause the
contamination. This uncertainty makes
potential buyers and lenders hesitant to invest
in property containing contaminated
groundwater. .The intent of the Contaminated .
Aquifer Policy is to lower the barriers to the
transfer of property by reducing the uncertainty
regarding future liability. It is EPA's hope that
rby clarifying its approach towards these
landowners, third parties will act accordingly.
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Policy Summary
EPA will exercise its enforcement discretion by
not taking action against a property owner to
require clean up or the payment of clean-up
costs where: 1) hazardous substances have
come to the property solely as the result of .
subsurface migration in an aquifer from a,
source outside the property, and 2) the
landowner did not cause, contribute to, or
aggravate the release or threat of release of any
hazardous substances. Where a (property owner
is brought into third party litigation, EPA will
consider entering a de minimis settlement.
Elements of the Policy
There are three major issues which must be .
analyzed to determine whether a particular
landowner will be protected from liability by
this policy:
* the landowner's role in the contamination
of the aquifer;
the landowner's relationship
to the person
_ who contaminated the aquifer, and
the existence of any groundwater wells on
the landowner's property that affect the
spread of contamination within the aquifer.
Landowner's Role in the Contamination of
the Aquifer
A landowner seeking protection
from liability
under this policy must not have caused or
contributed to the source of contamination.
However, failure to take steps to mitigate or
address groundwater contamination, such as
conducting groundwater investigations or
installing groundwater remediation systems,
will not, in the absence of exceptional
circumstances, preclude a landowner from the
protection of this policy.
Landowner's Relationship to the Person who
Caused the Aquifer Contamination
First, this policy requires that the original
contamination must hot have been caused by an
agent or employee of the landowner. Second,
the property owner must not have a contractual
relationship with the polluter. A contractual
. relationship includes a deed, land contract, or
instrument transferring possession. Third,
Superfund requires that the landowner inquire
into the previous ownership and use of the land
to minimize liability. Thus, if the landowner
buys a property from the person who 'caused
the original contamination after the
contamination occurred, the policy will not
apply if the landowner knew of the disposal of
hazardous substances at the time the property
was acquired. For example, where the property
at issue was originally part of a larger parcel.
owned by a person who caused the release and
the property is subdivided and sold to the
current owner, who is aware of the pollution
and the subdivision, there may be a direct or
indirect "contractual relationship" between the
person that caused the release and the current
landowner. In this instance, the owner would
not be protected by the policy. .
In contrast, land contracts or instruments
transferring title are not considered contractual
relationships under CERCLA if the land was
acquired after the disposal of the hazardous
substances and the current landowner did not
know, and had no reason to know, that any ,
hazardous substance had migrated into the
land. .
The Presence of a Groundwater Well on the
Landowner's Property and its Effects on the "
Spread of Contamination in the Aquifer
f
Since a groundwater well may affect the
migration of contamination in an aquifer,
EP A's policy requires a fact-specific analysis of
the circumstances, including, but not limited to,
the impact of the well and/or the owner's use of
it on the spread or containment of the
contamination in the aquifer.. \
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Common Questions Regarding
Application of the
'If a prospective buyer knows
Policy
of aquifer
contamination on a piece of property at the
time of purchase, is he or she automatically
liable for clean-up costs?"
No, In such a,case the buyer's liability depends
on the seilerVinvolvement in the aquifer
contamination. If the seller would have
qualified for protection under this policy, the
buyer will be protected. For example, if the ,
seller of the property, was a landowner who
bought the property without knowledge, did not
contribute to the contamination of the aquifer
and had no contractual relationship with the
polluter, then the buyer may take advantage of
this policy, despite knowledge o
contamination.
the aquifer
In contrast, if the seller has a contractual
relationship with the polluter and the buyer
knows of the contamination, then this policy
-will not protect the buyer.
"If an original parcel of property contains
one section which has been contaminated by
the seller and another uncontaminated
section which is threatened with
contamination migrating through the .
aquifer, can a buyer be protected under the
policy if he or she buys the threatened
section of the property?"
The purchase of the threatened parcel separate
from the contaminated parcel establishes a
contractual relationship between'the buyer and
the person responsible for the threat. This
policy will not protect such a buyer unless the
buyer can establish that he or she did not know
of the pollution at the time of the purchase and
had no reason to know of the pollution. To
establish such lack of knowledge the buyer '
must prove that at the time he acquired the
property he inquired into the previous
ownership and uses of the property., , '
Protection from
Third Party Law Suits
Finally, EPA will consider de minimis
settlements with landowners who meet the
requirements of this policy if a landowner has
been sued or is threatened with third-party
suits. 'A de minimis settlement is an agreement
between the EPA and a landowner who may be
liable for clean up of a small portion of the
hazardous-waste at a particular site. To be
eligible for such a settlement, the landowner
must not have handled-the hazardous waste and
must not have contributed to its release or the
threat of its release. Once the EPA enters into
a de minimis settlement with a landowner, third
parties may not sue that landowner for the costs
of clean-up operations/
Whether or not the Agency issues a de minimis
settlement, EPA may seek the landowner's full
cooperation (including access to the property)
in evaluating and implementing cleanup at the
site. . .'. , -
This policy was issued on May 24,1995 and'published
in the Federal Registers July 3; 1995 (volume 60,
page 34790). You may order a copy of the policy from
the National Technical Information Service (NT1S), U.S.
Department of Commerce, 5825 Port Royal Rd.,
Springfield, VA 22161. '.-''
Orders must reference NT1S accession number PB96-
108145.
For telephone orders or further information on placing an
order, call NTIS at . . -
, (703)487-4650 for regular service, or '-
(80Q)553-NT1S for dish service.
For orders via e-mail/Internet, send to the following
address: ' .
orders@ntis.fedworld.gov
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For more information about the Contaminated Aquifer
Policy, call Blen Kandell at (703)603-8996.
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