Buying/Leasing a Property at a Remediated Superfund Site: What You Should Know

The Great Industrial Revolution of the 18th century opened up an entirely new way of living for mankind. However, this period marks the beginning of some unpleasant things. For starters, urbanization and industrialization have harmed human health and the environment.

Air quality across the world is declining. The same holds true for the soil and water bodies. A total roundabout occurred after man discovered the art of producing chemicals. Though chemistry became a proper science in the 18th CE itself, it was in the early 1900s that complex industrial chemicals were produced.

Many of these were hazardous or released dangerous by-products that are often just dumped (instead of being remedied). No wonder the number of Superfund sites across the US is increasing. In this article, we will discuss what a Superfund site is and details regarding the purchase/lease of a property that belongs to a remedied or ‘under cleanup’ Superfund site.

What are Superfund Sites?

Various commercial and industrial operations release hazardous chemicals into the environment (including the soil). Sadly, the toxic materials are simply dumped or accumulated as waste in specific areas.

These areas or ‘sites’ become contaminated due to the toxic dump, and are known as Superfund sites (as coined by the Environmental Protection Agency or EPA). Did you know that over 600 chemicals have been discovered at different Superfund sites?

The sites become inhabitable until they’ve been cleaned up. In some cases, this is a major challenge. Let’s understand it with the help of an example – Nearly 180 Superfund sites are contaminated with per- and polyfluoroalkyl substances or PFAS.

PFAS are a complex group of over 12,000 chemicals known for their ability to repel oil, water, and grease. They are found in non-stick cookware, dental floss, stain-resistant coatings, and firefighting foam.

Are these chemicals toxic? Yes, and the extent of their toxicity is seen in rising cases of cancer among firefighters.

Mainly used for Class B firefighting foam (Aqueous Film Forming Foam), PFAS increases the risk of cancer diagnosis among firefighters. There is active litigation in the form of a firefighter foam lawsuit against PFAS manufacturers like 3M and DuPont.

Besides personal injury cases, municipalities have filed water contamination cases. According to TorHoerman Law, one-half of the litigation has been resolved, with 3M agreeing to pay $10.3 billion to municipalities. It may sound like good news that site cleanup can happen over 13 years.

However, what makes the process so challenging is the chemical makeup of PFAS. Most have such a strong carbon-fluorine bond that they cannot be broken down. Research is underway to discover how to break down PFAS (without which they will stay in the soil and human body indefinitely).

Is It Possible to Buy a Property within a Superfund Site? What Are the Benefits?

Now, (thorough) PFAS cleanup may take anywhere up to five decades. Besides these chemicals, others contaminate Superfund sites. These include lead, benzene, toluene, arsenic, trichloroethylene, and chromium.

With over 1,300 Superfund sites in the US, over 400 have been cleaned up to date. Once the cleanup efforts come to fruition, purchasing and reusing the redeveloped site is possible. In fact, many of these site properties belong to desirable locations and may be available at affordable prices.

They can be repurposed into residential areas and construction of shopping malls, business parks, and renewable energy facilities. However, this depends upon the cleanup standards.

In other words, if a site has been cleaned up only to match industrial or commercial standards, it may be suitable for manufacturing facilities, offices, or retail but not for residential purposes. Remember that many Superfund sites can be redeveloped even if the cleanup is ongoing.

Can the Site Property Be Reused Safely?

The short answer is yes because Superfund sites are cleaned up to be protective of human health and the environment. This holds even when the cleanup activities are underway.

The EPA may have certain restrictions on land use while the cleanup efforts are ongoing. Some examples of such sites include those with contaminated underground water or landfills.

Know in advance whether there are any land use restrictions on the property you intend to buy. Also, understand the nature of the restrictions – temporary, permanent, current, or future. They are usually implemented in the form of permits, zoning, or ordinances.

Will You Get Protection from Superfund Liability?

Anyone who wishes to purchase or lease a property within a Superfund site must have relevant liability protection. This protects them from being responsible for any cleanup activity at the site (especially if they’re not responsible for the contamination).

The most common liability protection would be the Bona Fide Prospective Purchaser (BFPP) of the Superfund law. Any interference with the ongoing cleanup, worsening of existing contamination, or production of new hazardous substances can lead to a loss of BFPP status.

In the final analysis, buying a Superfund site property is possible (within EPA’s boundaries). Though a purchaser with BFPP status will not be held responsible for any cleanup activity, they will need to ensure appropriate care.

A reasonable step in this regard would be providing property access to EPA staff for cleanup. Moreover, the purchaser/leaser must prevent public access, uphold cleanup efforts, limit the spread of contamination, and address improper practices. They may participate in the cleanup work (which is entirely up to their volition).

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