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Superfund Liens
Table of Contents
- U.S. EPA has Superfund Liens at a Relatively Small Number of Properties
- Geographic Range of this Website
- Superfund Liens
- Lien by Operation of Law
- EPA Notice to Perfect (Record) Lien
- Perfected (Recorded) Liens
- Chart
- Withdrawn Liens
- Windfall Liens
- About Superfund Liability
- General Framework and Background
- Defenses to Liability
- Related Links
U.S. EPA has Superfund Liens at a Relatively Small Number of Properties
A Federal Superfund lien exists at any property where EPA has incurred Superfund costs to address contamination (“Superfund site”) and has provided notice of liability to the property owner (see topic CERCLA “Superfund” Liens). Of all the properties within U.S. EPA Region 3, Superfund sites are a small percentage of total properties. Thus, most properties in Region 3 do not have existing or potential Superfund liens because they are not Superfund sites.
Persons conducting All Appropriate Inquiries (“due diligence”) prior to purchasing a property can initially check EPA’s CERCLIS site to determine whether a property is within a Federal Superfund site in order to assist in determining the existence or potential existence of a Federal Superfund lien
The chart on this webpage then provides information as to those properties where EPA Region 3 has perfected (recorded) a Federal Superfund lien in the land records and/or in Federal District Court.
Please note that the information on this website concerns potential Federal Superfund liens only, and does not include information regarding any other Federal or State liens that may exist with respect to the property.
Further, the website does not address appropriate care measures that may need to be taken at the property with respect to contamination that may remain at such location.
Geographic Range of this Website
This website contains information concerning properties in EPA Region 3, which is limited to the District of Columbia and the States of Delaware, Maryland, Pennsylvania, Virginia, and West Virginia. It does not contain information regarding properties located in any other States.
Users of this website should also note that the information contained herein concerns potential Federal Superfund 107(l) liens only, and does not include information regarding any other Federal or State liens that may exist with respect to the property.
Further, the website does not address appropriate care measures that may need to be taken at the property with respect to contamination that may remain at such location.
CERCLA (“Superfund”) Liens
Lien by Operation of Law
A Federal CERCLA (“Superfund”) lien can exist by operation of law at any site or property at which EPA has spent Superfund monies. These monies are spent to investigate and address releases and threatened releases of contamination. CERCLIS provides information as to the identity of these sites and properties.
Under section 107(l) of CERCLA, 42 U.S.C. § 9607(l), the Federal CERCLA (“Superfund”) environmental cleanup lien in favor of the United States arises on property subject to or affected by Superfund response actions when EPA incurs costs for such action and provides written notice of potential liability to the owner(s) of such property ("Section (l) Federal Lien"). The Section (l) Federal Lien continues in existence until the liability of the owner(s) of the property (or a judgment arising from such liability) is satisfied or becomes unenforceable through operation of the statute of limitations provided in section 113 of CERCLA, 42 U.S.C. § 9613.
The Section (l) Federal Lien exists whether or not EPA has recorded notice of the lien in the public records. A Section (l) Federal Lien in favor of the United States therefore has arisen at every property upon which EPA has incurred Superfund costs and provided notice of potential liability to the property owner(s). Just because EPA has incurred costs and provided notice of potential liability to the property owner(s) does not, however, mean that such Section (l) Federal Lien is in effect at the property today. Further inquiry and analysis may be required to determine whether the liability of the owner(s) of the property (or a judgment arising from such liability) has been satisfied or has become unenforceable through operation of the CERCLA statute of limitations.
EPA Notice to Perfect (Record) Lien
EPA Region 3 has commenced the process to perfect (record) CERCLA Section (l) Federal Liens in a small percentage of cases in which a Section (l) Federal Lien has arisen by operation of law. The recording process generally begins when EPA Region 3 sends the property owner(s) a Notice of Intent to Perfect Federal Lien (“Notice of Lien”) and provides an opportunity for a hearing before a neutral official, typically before the Region 3 Regional Judicial Officer (R3RJO). If a hearing is requested, EPA Region 3 will not in most cases proceed to record the Notice of Federal Lien in the public records until the hearing process has been completed and the R3RJO has concluded that the statutory elements for recording the lien have been satisfied. As of November 2006, EPA Region 3 has approximately a dozen liens in this Notice stage of the process.
EPA’s procedures also provide that, in some circumstances, a CERCLA lien can be recorded in the public records before the EPA hearing process has occurred. EPA Region 3 has used this procedure at several Region 3 Superfund properties, and may use this procedure in the future at other Superfund properties. Those affected property owners are still offered an opportunity for a hearing after the lien has been recorded in the public records.
Perfected (Recorded) Liens
If no hearing is requested following receipt of a Lien Notice, or if the Lien process described above has concluded with a decision by the R3RJO that perfection of the lien is appropriate, EPA Region 3 will proceed to file the Notice of Federal Lien in the appropriate State office or Federal District Court.
Section 107(l)(3) of CERCLA, 42 U.S.C. § 9607(l)(3), provides that if the State has not by law designated one office for the receipt of such notice, the notice shall be filed in the U.S. District Court for the district in which the property is located. Thus, a Region 3 Lien may be filed in either or both locations. Check with your local city or county clerk’s office for the name and location of the office charged with recording Superfund liens for the property in that area.
The informational chart on this webpage identifies each property within
Region 3 where a CERCLA Section (l) Federal Lien has been recorded, and thus has been perfected (CERCLA Perfected Liens)
Withdrawn Liens
In some instances, EPA Region 3 has withdrawn a lien that was previously perfected. This may occur because a settlement has been finalized or for other EPA enforcement discretion reasons. If EPA Region 3 has withdrawn a perfected lien, the lien does not appear on the chart on this website.
Windfall Liens
Under section 107(r) of CERCLA, 42 U.S.C. § 9607(r), an environmental cleanup lien in favor of the United States arises, at the time EPA expends funds under CERCLA at a property, for the increase in the fair market value of that property attributable to EPA’s cleanup efforts ("Section (r) Federal Lien," commonly referred to as the "Windfall Lien"). Unlike a Section (l) Federal Lien, the Windfall Lien is not a lien for all of EPA’s unrecovered response costs; rather, the Windfall Lien is limited to the lesser of EPA’s unrecovered response costs or the increase in fair market value attributable to EPA’s cleanup. The Windfall Lien continues to exist until it is satisfied through sale or other means, or recovery of all response costs incurred at the Site, whichever occurs earlier. Thus, a Windfall Lien may exist at any site and property at which EPA has spent Superfund cleanup monies. A Windfall Lien exists under law at such affected properties even though no notice of such lien has been filed.
This webpage does not include identification of existence and amount of Windfall Liens at particular Region 3 CERCLA cleanup sites.
About Superfund Liability
General Framework and Background
Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"), persons may be responsible for cleaning up hazardous substances at properties that they either currently own or operate or owned or operated at the time of disposal. Under CERCLA, such persons are said to be strictly liable. Strict liability in the context of CERCLA means that a potentially responsible party may be liable for environmental contamination based solely on property ownership and without regard to fault or negligence.
Defenses to Liability
1. Innocent Landowner
Section 101(35)(B) of CERCLA provides a defense to CERCLA liability for those persons who demonstrate, among other requirements, that they did not know and had no reason to know prior to purchasing a property that any hazardous substance that is the subject of a release or threatened release was disposed of on, in, or at the property. To demonstrate that they had no reason to know, such persons must have undertaken, prior to, or on the date of acquisition of the property, all appropriate inquiries into the previous ownership and uses of the property consistent with good commercial or customary standards and practices.
2. Contiguous Owner
The 2002 Brownfields Amendments to CERCLA added potential liability protection for contiguous property owners who also must demonstrate they conducted all appropriate inquiries, among other requirements, to benefit from the liability protection. Contiguous properties are generally properties to which contamination has spread from a separate source property.
3. Bona Fide Prospective Purchaser
The 2002 Brownfields Amendments to CERCLA also added potential liability protection for bona fide prospective purchasers (“BFPPs”). A BFPP can purchase property knowing that it has contamination or potential contamination, without becoming liable under CERCLA. A BFPP must demonstrate it conducted all appropriate inquiries, among other requirements, to benefit from the liability protection. A Superfund Windfall Lien, if it exists for a particular property, exists even though a purchaser may be a BFPP (see section above on Windfall Liens).
To Claim a Defense, an Owner Must Conduct All Appropriate Inquiries
As part of the 2002 Brownfields Amendments, Congress established interim standards for the conduct of all appropriate inquiries. The federal interim standards established by Congress became effective on January 11, 2002 and were superceded by a rule, known as the "Standards and Practices for All Appropriate Inquiries" or "All Appropriate Inquiries" rule, published at 70 Fed. Reg. 66070 (November 1, 2005) and codified at 40 C.F.R. Part 312. The All Appropriate Inquiries Rule requires, among other things, that prospective landowners and grantees, or environmental professionals on their behalf, search for environmental cleanup liens that are recorded under federal, tribal, state, or local law.
Disclaimer
This information and discussion has been prepared by U.S. EPA Region 3 as an informational tool only, and is provided without warranty of any kind. The information is not a substitute for the professional advice of an attorney or environmental professional.