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"Innocent Landowner Defense"


Recent Brownfields Legislation (H.R. 2869 – the Small Business Liability Protection and Brownfields Revitalization Act, or SABRA) clarifies the liability of innocent landowners and exempts certain prospective purchases from liability at EPA Superfund sites. The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980 (42 U.S.C. 9601 (35)) was amended and explains the protection from liability an unknowing land owner has for property that has had a past release of a hazardous substance, and/or is on the EPA Superfund National Priority List (NPL).

The Innocent Landowner Defense was established by the Superfund Amendments and Reauthorization Act (SARA) on October 17, 1986, holding that “the defendant must have undertaken at the time of acquisition an all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability.” SABRA reauthorized this defense, and re-emphasized in the tenants below, what a court must consider in the determination of this defense:

• Any specialized knowledge or experience on the part of the defendant;

• The relationship of the purchase price to the value of a property if contaminated;

• Commonly know or reasonably ascertainable information about a property;

• The obviousness of the presence/likely presence of contamination at a property;

• The ability to detect such contamination by appropriate inspection.

These evidences are determined during discovery performed by an environmental professional in a Phase I Environmental Site Assessment.

Eligible landowners have the burden of proof for both the innocent landowner and bona fide prospective purchaser defenses.


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