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Brownfields

Liability Protection

Updated August 30, 2004

Congress enacted the strict, joint and several liability provisions of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) to stop the discharge of hazardous pollutants into the environment.  Under that law, every past and present owner of a contaminated property is held fully responsible for all cleanup costs, regardless of fault.  Superfund liability provisions also applied to brownfields owners and developers, making them subject to liability even if they did not cause the pollution. This policy raised barriers to brownfields redevelopment since businesses were unwilling to invest in redeveloping sites that could result in later federal enforcement actions and additional cleanup costs and responsibilities.

In an effort to eliminate federal Superfund liability for brownfields owners and developers and spur site cleanup and redevelopment, the Small Business Liability Relief and Brownfields Revitalization Act signed in January 2002 gives liability protection to bona fide prospective purchasers, contiguous property owners and innocent landowners seeking to redevelop brownfields.  These owners have to prove they had no responsibility for contributing to the contamination of the property and no knowledge of the contamination prior to acquiring the property. 

Several states have enacted laws containing liability protection provisions.  Different approaches include:

• Indiana--A covenant-not-to-sue is issued with a certificate of completion of work plan protecting the applicant against public or private claims under state law related to a hazardous substance release covered under the completed work plan.
• Maryland--A no-further-requirements determination and certification of completion of a response action plan protects the applicant from liability for any violation of the conditions placed on the use of the property, so long as they did not cause or contribute to the violation.  An inculpable person is not liable for any existing contamination, but is liable for new contamination or exacerbation of existing contamination.
• Pennsylvania--Upon determination by the state regulatory agency that the appropriate cleanup standard has been attained, the person completing the cleanup is relieved of further liability for remediation of contamination identified in reports submitted to and approved by the state regulatory agency.
• Virginia--Liability protections mirror federal law and are afforded to a prospective purchaser of a brownfields property, an innocent landowner that acquires the property without knowledge of contamination, and a contiguous property owner that is a victim of a neighboring property’s contamination.  Amnesty provisions make a voluntary disclosure of real or potential contamination immune from administrative or civil penalties under state law.

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