Reprinted from Environmental Law in New York with permission. Copyright 2020 Matthew Bender & Company, Inc., a LexisNexis company. All rights reserved.
Volume 31, No. 01 January 2020
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) imposes strict, joint and several, retroactive liability on property owners and operators for releases of hazardous substances. To achieve and maintain one of the three statutory landowner liability protections, a prospective property owner or operator must take certain steps. In July 2019, the U.S. Environmental Protection Agency (EPA) released its long-awaited Enforcement Discretion Guidance Regarding Statutory Criteria for Those Who May Qualify as CERCLA Bona Fide Prospective Purchasers, Contiguous Property Owners, or Innocent Landowners (“Common Elements”) (Common Elements Guide or 2019 Guide).1 The 2019 Guide supersedes EPA’s 2003 interim guidance on this topic and provides significant clarifications on several key elements of the landowner limitations on CERCLA liability, particularly what steps must be completed subsequent to purchase to maintain the liability protections. EPA developed the Common Elements Guide as part of EPA’s Superfund Reform Task Force initiative.2