When considering property acquisition, you want to ensure that the land or building is free from contamination, especially from hazardous chemicals or materials. Key contaminants to be wary of include:
Asbestos
Asbestos is a term for a group of naturally occurring minerals that possess strong, flexible fibers resistant to heat, chemicals, and electricity. Historically, it was favored for insulation, fireproofing, and building materials due to these properties.
When materials containing asbestos are damaged or disturbed, they can release tiny asbestos fibers into the air. When inhaled, these fibers can become trapped in the lungs. Over time, accumulation can cause inflammation and scarring and lead to several serious respiratory diseases, including asbestosis, lung cancer, and mesothelioma.
Do not disturb materials suspected to contain asbestos. If you believe there’s asbestos in your home, especially if it is deteriorating, consider hiring an expert to assess and manage the situation.
Radon
Radon is a colorless, odorless radioactive gas formed from the natural breakdown of uranium in soil, rock, and water. It’s naturally present outdoors in harmless amounts but can become concentrated in homes built on soil with natural uranium deposits.
Radon can accumulate in enclosed spaces, like basements and ground floors. Prolonged exposure to high levels of radon can increase the risk of lung cancer, especially among smokers. Radon is the second leading cause of lung cancer after smoking.
Homeowners should consider testing their homes for radon, especially in high-risk areas. If levels are high, solutions can range from simple fixes to major renovations to improve ventilation.
Lead-based Paint
Lead-based paint is a type of paint that contains significant amounts of lead. It was commonly used in homes built before 1978 for its durability and resistance to moisture.
Lead is a toxic metal. When lead-based paint deteriorates, chips or dust can be produced. Children can ingest lead when they eat paint chips or inhale/ingest house dust contaminated with lead. This can lead to lead poisoning, which can affect nearly every system in the body, leading to developmental delays, learning difficulties, and other health issues.
Homes built before 1978 might contain lead-based paint. Before renovating or if the paint is deteriorating, homeowners should have their homes tested.
Conducting Environmental Assessments
Environmental Assessments are comprehensive evaluations of a property to detect the presence of contaminants or potential environmental risks. These assessments can be categorized mainly into Phase I and Phase II.
Phase I Environmental Site Assessment (ESA)
This initial assessment is primarily desk-based, where professionals review records and historical uses of the property and conduct a visual inspection. The goal is to identify any recognized environmental conditions (RECs) or potential contamination sources.
Phase II Environmental Site Assessment (ESA)
If Phase I identifies potential concerns, a Phase II assessment may be conducted. This involves taking soil, water, and sometimes air samples from the property to test for specific contaminants. It provides a more detailed view of the contamination type, concentration, and extent.
Why is it Important?
By conducting these assessments, potential buyers can be aware of any environmental liabilities affecting the property’s value and usage.
Request Disclosure
Disclosure is a formal statement or document the seller provides to the potential buyer detailing known issues, hazards, or defects with the property, including hazardous materials.
Why is it Important?
Sellers are generally legally obligated to disclose known environmental issues. Requesting a disclosure helps buyers make informed decisions and can provide insights into the history of hazardous materials on the property or past remediation efforts. It also ensures transparency in the transaction and protects the buyer from potential future liabilities.
Check Regulatory Lists
Government agencies maintain lists of properties with environmental concerns, often termed “watch lists” or “brownfield sites.” These can range from sites with stored hazardous materials, locations with reported spills, or properties that previously hosted industries with potential contamination.
Why is it Important?
Checking these lists can give potential buyers a heads-up on properties with unresolved environmental issues. If a property is on such a list, it might require cleanup or remediation, which can be costly.
Local environmental or health departments typically maintain these lists. Additionally, the Environmental Protection Agency (EPA) provides databases that can be accessed for more comprehensive information.
By integrating these steps into the property acquisition process, potential buyers can safeguard themselves from unexpected environmental liabilities and potential cleanup costs.
Can the EPA Hold Me Liable for Hazardous Chemicals on My Property?
Yes, the Environmental Protection Agency (EPA) can hold property owners liable for hazardous chemicals on their property, even if the owner wasn’t responsible for the contamination. Under certain environmental laws, liability can be strict, meaning contamination can trigger cleanup responsibility.
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Are There Any Defenses Available?
Absolutely. If the EPA seeks to hold you responsible for contamination, you can use the following:
Innocent Landowner Defense
The Innocent Landowner defense allows property owners to potentially avoid liability for contamination if they can prove they were unaware of the contamination at the time of purchase and had no reason to know about it.
- Due Diligence: The purchaser must have conducted all appropriate inquiries (AAIs) into the property’s previous ownership and uses. This usually involves a Phase I Environmental Site Assessment before purchasing.
- No Connection: The purchaser must not be potentially liable for any action or inaction causing the contamination and should not have any affiliation with a party responsible for the contamination.
Successfully asserting this defense can exempt the property owner from costly cleanup and other remediation responsibilities. However, it’s important to have thorough documentation and evidence of the due diligence process.
Continuous Property Owner Defense
This defense applies to property owners who acquired the property after the contamination occurred but can demonstrate that the contamination was solely the result of a third party’s actions.
- Preventive Measures: The owner must have taken steps to prevent the worsening or spread of the contamination upon becoming aware of it.
- No Affiliation: The owner must not be directly or indirectly affiliated with the third party responsible for the contamination.
Invoking this defense can protect owners from liability if they can establish they had no role in the contamination and took steps to mitigate the issue once they were aware.
Divisibility Defense
The divisibility defense allows property owners to argue that they should only be held responsible for a specific portion of the contamination directly linked to activities on their property.
- Quantifiable Measures: The owner must be able to provide a reasonable basis for determining the extent of contamination attributable to their property’s activities. This can be based on factors like time of ownership, type of operations, or volume of waste.
- Separate Harm: The contamination attributable to the property must be distinguishable from other sources of contamination.
Assigning the divisibility defense can significantly reduce a property owner’s cleanup and remediation costs. Instead of being responsible for the entire contamination, they would only be liable for their property’s proportionate share.
Should I Contact an Attorney?
If you’re contemplating purchasing property, suspect contamination, or are approached by the EPA concerning hazardous materials on your land, you need legal guidance. A property lawyer can assist in due diligence before buying and offer representation if faced with potential liability. Don’t take risks with such pivotal issues. Contact a property lawyer through LegalMatch to ensure you’re well-informed and adequately defended.
