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College of Law WV LEAP
Contaminated Properties
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Contaminated Properties

In some cases, dilapidated properties are contaminated, adding a layer of risk for purchasers or others dealing with neglected properties. This Section introduces the primary laws that address hazardous waste and asbestos. As with all information presented in this toolkit, these summaries are merely an introduction to the issues. When faced with a contaminated property, the purchaser or manager of the property should seek legal counsel before taking any action.

Hazardous Waste

The primary source of hazardous waste liability is the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) also known as Superfund. 1 The statute’s complexity has been referred to as “a black hole that indiscriminately devours all who come near it.” 2 Liability under CERCLA requires a release or threat of release of a “hazardous substance” from a vessel or facility caused by a “responsible party.” Hazardous substances include a wide range of pollutants and contaminants, but do not include petroleum, crude oil, or natural gas products. 3 Hazardous substances are most commonly found at abandoned industrial sites, such as factories that manufactured chemicals or used chemicals in their production processes. Common commercial sites that create hazardous substances include gas stations, hospitals, exterminators, photo processing centers, and dry cleaners. A responsible party or potentially responsible party under CERCLA will fall under one of four categories: current owners and operators, past owners and operators, generators, or transporters.

There are two primary defenses to CERCLA liability: the bona fide prospective purchaser defense and the “innocent purchaser” defense.

The Bona Fide Prospective Purchaser. In order to promote the redevelopment of brownfields, 4 CERCLA allows certain purchasers to acquire property with knowledge of hazardous substance contamination without incurring liability. There are several requirements to qualify for this defense. First, the bona fide prospective purchaser must have acquired the facility after January 11, 2002. 5 Second, the disposal of hazardous waste must have occurred prior to acquiring the property. 6 The purchaser must make “all appropriate inquiries” into the previous ownership and uses of the facility in accordance with accepted good commercial and customary standards. 7

Next, the purchaser must provide all legally required notices with respect to the discovery or release of any hazardous substance and take appropriate care to stop and prevent any threatened future release. 8 The purchaser must fully cooperate with any other groups authorized to restore the property 9 and cannot be affiliated with anyone who is potentially liable. 10 Note that the government may place a lien on the property if the government carries out contamination response actions and does not recover all of its costs. 11

The “Innocent Purchaser.” An innocent purchaser is a purchaser who did not know or had no reason to know that any hazardous substance was disposed of on, in, or at the property. The defense applies only to three types of current property owners: 1) non-governmental entities that intentionally acquired the site; 2) non-governmental entities that acquired it by inheritance or bequest; and 3) governmental entities that acquired the site by escheat or other involuntary transfer or by means of eminent domain. 12 New owners must establish that the hazardous substance was placed at the site before they acquired it, that they exercised due care regarding the hazardous substance, and that they took precautions against foreseeable acts or omissions of third parties. 13

Methods to evaluate a property’s potential for environmental contamination.

“All appropriate inquiry” refers to the process of evaluating a property’s environmental condition and assessing potential liability for contamination. 14 Specific activities are required under this rule and explained in the EPA’s All Appropriate Inquiries Rule Factsheet: 15

An environmental professional16 must perform interviews with past and present owners, operators, and occupants; reviews of historical sources of information; reviews of federal, state, tribal, and local government records; visual inspections of the facility and adjoining properties; and inquiries of commonly known or reasonably ascertainable information and the degree of obviousness of the presence or likely presence of contamination at the property and the ability to detect the contamination. Visual inspections might include obvious signs of contamination, including any evidence of drums, transformers, underground tanks, areas of distressed vegetation, stains, or buried waste, indicated by disturbed soil. 17

Additional inquiries must be conducted by or for a prospective landowner or grantee:

Searches for environmental cleanup liens; assessments of any specialized knowledge or experience of the prospective landowner (or grantee); an assessment of the relationship of the purchase price to the fair market value of the property, if the property was not contaminated; and commonly known or reasonably ascertainable information. 18

Alternatively, standards established by the American Society of Testing and Materials (ASTM) may be used to comply with the provisions of the rule. The following two standards apply:

For any property: ASTM E1527 – 13 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. 19

For forestland or rural property greater than 120 acres: ASTM E2247 – 08 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property. This assessment is less rigorous than the ASTM E1527 site assessment process. 20

For more information on hazardous waste liability in West Virginia, please visit http:// www.dep.wv.gov/DLR/OER/Pages/default. aspx.

Asbestos

The National Emission Standards for Hazardous Air Pollutants regulations under the Clean Air Act regulate work practices for asbestos during demolitions and renovations of all structures, installations, and buildings. Residential buildings that have four or fewer dwelling units are exempt. 21 Building owners or operators must notify the Asbestos Compliance Program within the West Virginia Department of Health and Human Resources before demolition or renovation of a building that may contain asbestos. 22

For more information on asbestos compliance in West Virginia, please visit http:// www.dep.wv.gov/DAQ/CANDE/Pages/ AsbestosRemovalandDemolition.aspx.

Lead

The State of West Virginia has established guidelines for the assessment and removal of lead hazards from homes and other buildings, particularly those built before 1978. 23

For more information on lead assessments, abatement projects, licensing inspections, and technical assistance in West Virginia, please visit https://www.wvdhhr.org/rtia/lead.asp.

West Virginia Department of Environmental Protection’s (WV DEP) Voluntary Remediation Program

This program encourages voluntary cleanup of contaminated sites and redevelopment of abandoned and under-utilized properties. Applicants who remediate sites under the standards provided in this program also benefit from: 1) limited enforcement actions by the WV DEP; 2) limited liability under environmental laws and rules; 3) the ability to redevelop sites with existing industrial infrastructure at a lower price; and 4) financial incentives to invest in brownfields. Voluntary Remediation Agreement and application requirements are available at http://www.dep.wv.gov/dlr/oer/ voluntarymain/Pages/default.aspx.

For more information on voluntary remediation in West Virginia, please visit http://www.dep. wv.gov/dlr/oer/voluntarymain/Pages/default. aspx.

  1. 42 U.S.C. §§ 9601–9675 (2013).
  2. Jerry L. Anderson, The Hazardous Waste Land, 13 Va. Envtl. L.J. 1, 6–7 (1993).
  3. 42 U.S.C. § 9601(14).
  4. 4 “Brownfields are real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.” Brownfields and Land Revitalization, U.S. EPA, http://www.epa.gov/brownfields/ (last visited Aug. 24, 2015).
  5. 42 U.S.C. § 9601(40).
  6. 6 Id. § 9601(40)(A).
  7. Id. § 9601(40)(B).
  8. Id. § 9601(40)(C–D).
  9. Id. § 9601(40)(E).
  10. Id. § 9601(40)(H).
  11. Memorandum from McDermott Will & Emery to Brandon Barnes, Is there CERCLA Liability for Conservation Easement Holders? (Dec. 3, 2010) (Land Trust Alliance Learning Center ID: 33582).
  12. Maxine I. Lipeles, Environmental Law Hazardous Waste 499 (3d ed. 1997).
  13. 42 U.S.C. § 9607(b)(3).
  14. All Appropriate Inquiries: Final Rule, U.S. EPA (2014), available at http://nepis.epa.gov/Exe/ZyPDF.cgi/P1005DOD.PDF?Dockey=P1005DOD.PDF.
  15. Id.
  16. An environmental professional is someone who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases on, at, in, or to a property, sufficient to meet the objectives and performance factors of the rule, and has: “(1) a state or tribal issued certification or license and three years of relevant full-time work experience; or (2) a Baccalaureate degree or higher in science or engineering and five years of relevant full-time work experience; or (3) ten years of relevant full-time work experience.” Id.
  17. See The Nature Conservancy Environmental Assessment Form, Land Trust Alliance Learning Ctr., January 2005, available at http://tlc.lta.org/library/documents/6469.
  18. See 40 C.F.R. § 312.21 (2013) (“Results of Inquiry by an Environmental Professional”); 40 C.F.R. § 312.31 (listing specific reporting requirements for all appropriate inquiries).
  19. See Astm Int’l Standard E1527-13 (2013), available at http://www.astm.org/Standards/E1527.htm.
  20. See Astm Int’l Standard E2247-08 (2008), available at http://www.astm.org/Standards/E2247.htm.
  21. 40 C.F.R. § 61; Asbestos: Building Owners and Managers, U.S. EPA, http://www2.epa.gov/asbestos/building-owners-and-managers#renovations (last visited Aug. 25, 2015).
  22. See Asbestos Program, W. Va. Dep’t Health and Human Res., http://www.wvdhhr.org/rtia/asbestos.asp (last visited Aug. 25, 2015).
  23. W. Va. Code Ann. § 16-35-2 (West 2015).
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