United States
Enviromental Protection
Agency
Office of Enforcement and
Compliance Assurance
November 1995
Policy Toward Owners of
Property Containing
Contaminated Aquifers
Office of Site Remediation Enforcement
Policy and Program Evaluation Division 2273G
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 Brownfields
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.
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.
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.
Background
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 by clarifying its
approach towards these landowners, third parties
will act accordingly.
Under Section 107(a)(1) of CERCLA (also
found at 42,United States Code § 9607(a)(1)),
any "owner" of contaminated property is
normally liable regardless of fault. This section

-------
Policy Summary
Landowner's Relationship to the Person who
Caused the Aquifer Contamination
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.
First, this policy requires that the original
contamination must not 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
Since a groundwater well may affect the
migration of contamination in an aquifer, EPA'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.

-------
Common Questions Regarding
Application of the Policy
Protection from
Third Party Law Suits
"If a prospective buyer knows 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 seller's, involvement 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 of the aquifer contamination.
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.
Finally, EPA will consider^ 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.
For Further Information
This policy was issued on May 24, 1995 and published
in the Federal Register on July 3, 1995 (volume 60, page
34790). You may order a copy of the policy from the
National Technical Information Service (NTIS), U.S.
Department of Commerce, 5825 Port Royal Rd.,
Springfield, VA 22161.
Orders must reference NTIS accession number
PB96-109145.
For telephone orders or further information on placing an
order, call NTIS at:
(703)487-4650 for regular service, or
(800)553-NTIS for rush service.
For orders via e-mail/Internet, send to the following
address:
orders @ ntis.fedworld.gov
For more information about the Contaminated Aquifer
Policy, call Ellen Kandell at (703)603-8996.

-------