CHAPTER 11 CONGRATULATIONS, YOU'RE A PRP! RESPONDING TO ENVIRONMENTAL AGENCY NOTICES, INVESTIGATIONS AND SIMILAR ACTIONS

• Jurisdiction: United States

Environmental Considerations in Natural Resource and Real Property Transactions
(Nov 1988)
CHAPTER 11
CONGRATULATIONS, YOU'RE A PRP! RESPONDING TO ENVIRONMENTAL AGENCY NOTICES, INVESTIGATIONS AND SIMILAR ACTIONS
David C. Shelton
Director Hazardous Materials and Waste Management Division Colorado Department of Health
Denver, Colorado

I. State Role

A. SARA 121(f) mandates "substantial and meaningful involvement by each state in initiation, development and selection of remedial actions".

B. State involvement includes:

1. review and comment on the remedial investigation (RI), feasibility study (FS), record of decision (ROD), engineering design and all supporting documents; and

2. opportunity to participate in negotiations and be a party to settlements.

C. Extent of state role varies depending on whether the state or EPA has the enforcement lead at the site.

D. Natural Resource Damage Suits (107 (f)) — clear state control

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II. The Superfund Process

A. Consider whether there are actions you can take or encourage the agencies involved to take which determine whether your site will be evaluated as a Superfund site.

1. Look at the "innocent landowner" provision of SARA 101(f)(35)(A): "At the time the defendant acquired the facility, the defendant did not know and had no reason to know that any hazardous substance ... was disposed on of, in or at the facility...".

a. It is necessary to make a good faith effort to determine whether hazardous substances are present. This costs money, but it is money well spent.

b. The state and EPA either have or are developing various lists that can be consulted:

i. RCRA notifiers;

ii. CERCLIS;

iii. SARA Title III; and

iv. UST.

c. However, there is no comprehensive list available that is a good indicator of the presence of hazardous substances — and there are definite shortcomings with the lists that do exist.

i. The lists typically do not have legal descriptions — and may have county names only for location.

ii. The lists usually only contain information supplied by the current property owner or information that has been discovered by agencies.

iii. The entries are by name only. The name may or may not correspond to your seller or any other name you are searching.

d. The buyer must satisfy itself that it is doing a sufficient investigation of the potential presence of hazardous substances. The buyer cannot rely on the information

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