Contaminated Property Restrictions in Real Estate

Instructor: Kyle Aken

Kyle is a journalist and marketer that has taught writing to a number of different children and adults after graduating from college with a degree in Journalism. He has a passion for not just the written word, but for finding the universal truths of the world.

The EPA oversees restrictions regarding the sale of contaminated property. There are several acts under the Superfund/CERCLA to ensure that property owners and buyers are protected from environmental hazards. Through the EPA website, any buyer or real estate agent is able to review this legislation to ensure that they are informed and fully prepared to buy safe and hazard-free property for themselves and their family.

Contaminated Property Restrictions in Real Estate

There are several legislative measures in effect to protect real estate buyers from contaminated property as well as measures to ensure liability and cleanup of these contaminated properties before selling or development. Without this type of legislation, millions of lives including the lives of children could be put at risk due to various environmental hazards.

The Environmental Protection Agency (EPA) has been tasked with most of these laws as well as overseeing the cleanup associated with contaminated properties. Some of this legislation is also in effect to help protect residential property owners that may live on property that has been contaminated at no fault of their own. Any buyer, seller, or agent can find all legislation and even opportunities for community involvement through the EPA's website at https://www.epa.gov/superfund.

Superfund

In 1976 the Resource Conservation and Recovery Act (RCRA) and the Toxic Substances Control Act (TSCA) were set up to ensure that no parties were engaging in toxic waste dumping that could affect the environment and potentially harm individuals. In the following years, several instances of contamination led to the House and Senate committees holding extensive hearings on toxic waste dumping and the potential dangers associated with this practice. This inevitably led to the creation of Superfund, also known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA or Superfund covered all areas of environmental hazards including emergency response, data analysis, cleanup, and liability.

Superfund was set up by the EPA to protect public health so that individuals can live and work in safe environments. Enacted in 1980, this includes legislation and restrictions on real estate property (both residential and commercial). In 1983, the National Priorities List (NPL) was set up to identify some of the regions in the U.S. that are priorities for Superfund cleanup. This list is regularly updated and can be accessed online for anyone who is interested in buying real estate property that may be near one of these sites. Take a moment to review the listed sites and review your area at https://www.epa.gov/superfund/npl-site-status-information.

Emergency Planning and Community Right-To-Know Act

In 1984 the Hazardous and Solid Waste Amendments were added to the RCRA over concerns of gasoline and other potentially hazardous chemicals seeping into the ground and water supplies. This legislation seeks to not only prevent this type of contamination but also to require the treatment of any property with waste contamination before it may be sold. Several years later, in 1986, the Emergency Planning and Community Right-To-Know Act (EPCRA) was passed to further protect owners and buyers from environmental hazards that may lie in contaminated real estate property. This act helps communities to be prepared for chemical emergencies and 'requires industry to report on the storage, use, and releases of hazardous substances to federal, state, and local governments' ('Emergency Planning…,' n.d.).

The Right-To-Know provisions in this act are to ensure that communities (and buyers within these communities) have access to pertinent information regarding potential environmental hazards. The EPA website has an extensive list of Amendments as well as guidance regarding these amendments. From this site, real estate buyers are also able to access NPLs to determine any potential risk in their prospective market. There is also extensive information for industry on compliance and reporting requirements/procedures. Sellers must comply with all legislation before legally selling or developing any property covered under these acts. More information about EPCRA can be found at https://www.epa.gov/epcra.

The Superfund Amendments and Reauthorization Act

The Superfund Amendments and Reauthorization Act (SARA) amended CERCLA once again in 1986. This amendment added many important changes to the program. It stressed more permanent remedies for environmental hazards and encouraged states to more strongly consider requirements and standards of other states to increase protection. There were also new enforcement authorities provided. SARA also created a stronger focus on human health problems that may come about from contaminated property and required the EPA to revise the Hazard Ranking System (HRS) which assesses the risks to human health and the environment from contamination. This act applies to all real estate properties and allows for stricter oversight, especially for selling and development. If you are interested in learning more about the amendments put in place through SARA, you can access this information at https://www.epa.gov/superfund/superfund-amendments-and-reauthorization-act-sara.

Enforcement First

The Enforcement First policy was enacted in 1989 to prioritize the identification of responsible parties for contaminated properties. This also ensures that those responsible are held accountable for cleaning/fixing the environmental hazards that were created. This helps to protect buyers or even current property owners who may discover contamination. It covers contaminants such as those found in the air or ground water. Hazardous Air Pollutants (HAPs) may come from fuel, coal power plants, chemical/explosives production, sulfuric and nitric acids used in fertilizers, plants that manufacture glass or cement, and petroleum refineries. Water pollutants may come from wastewater, oil (most often spills), stormwater pollution, and animal waste on farms.

Enforcement First also requires the cleanup of toxic waste and other chemicals by the responsible party. This can end up in civil or criminal cases brought about through the EPA's Environmental Justice plan. Those found to be responsible are then required by these proceedings to perform cleanup or to pay a third party for cleanup. Criminal actions are defined by will or knowledge of the contamination and result in criminal charges for the accountable party. Individuals can and have been incarcerated for willful contamination of the environment.

Enforcement First helps to oversee and enforce the cleanup of toxic waste and chemicals. Waste, chemical, and cleanup enforcement are some of the specific policies under Enforcement First. These policies protect consumers and communities from other environmental hazards that can be found at contaminated property sites. The following is a comprehensive list of the contaminants covered under the Enforcement First Policy:

Waste Enforcement

Mining and Mineral Processing: This is part of the EPA's national initiatives which aim to protect communities and the environment from phosphoric acid mining as well as other facilities that process high risk minerals.

Hazardous Waste: These kinds of contaminants are covered by the RCRA to ensure the 'safe handling, treatment, storage and disposal of hazardous wastes' ('Waste, Chemical…,' n.d.). This program covers facility inspection, records reviewing, and enforcement actions if necessary. Underground storage tanks are covered under RCRA Subtitle I.

Lead-Based Paint: The Residential Lead-Based Paint Hazard Reduction Act protects consumers (buyers and renters), contractors, and other construction professionals from lead-based paints and other products in properties built prior to 1978. There is specific criteria in place to ensure that workers utilize lead safe practices to decrease the chance of lead exposure. This also requires disclosure of lead-based paint to buyers and tenants (by the seller). Landlords, owners, and sellers are also required to provide a warning pamphlet about lead-based paint to anyone that will be living or working around this hazard.

Asbestos: The Asbestos Hazard Emergency Response Act (AHERA) covers schools that may have asbestos. It is also in place for workers under the Occupational Health and Safety Act (OSHA). Asbestos is generally not a concern in buildings when there is no remodeling presently occurring.

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