Pillsbury Winthrop Shaw Pittman

EPA proposes to eliminate dual standard for ‘all appropriate inquiries’ under CERCLA

By Amy E Gaylord

The Environmental Protection Agency (EPA) has proposed a rule to eliminate the dual standard for compliance with the ‘all appropriate inquiries’ requirement for the innocent purchaser, bona fide prospective purchaser and contiguous property owner defences to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

CERCLA imposes strict liability for the costs of environmental contamination on four classes of responsible parties, including current owners of contaminated properties. The statute provides liability for even ‘innocent owners’ who had nothing to do with the contamination-causing activities. The Small Business Liability Relief and Brownfields Revitalization Act of 2002 provided funds for brownfields revitalisation and amended CERCLA to provide some liability relief for certain types of property owners. Specifically, the Brownfields Act limited CERCLA liability under section 107 (42 USC § 9607) for bona fide prospective purchasers and contiguous property owners, and clarified the requirements for an innocent landowner defence. One of the requirements to qualify for these defences is that a purchaser of contaminated property must undertake ‘all appropriate inquiries’ into prior ownership and prior uses of the site. 42 USC § 9601(35)(B)…

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