Does CERCLA and the Texas SWDA provide an “innocent landowner” defense to liability?

Yes.  CERCLA also establishes the “innocent landowner” defense for those who purchase contaminated real property.  The Texas SWDA provides for a similar defense.  However, the defense applies only to “wholly innocent” landowners, i.e. landowners who did not contribute, actively or passively, to the “release” of the hazardous substance.  

In order to establish the “innocent landowner,” a PRP must show that:

  • He acquired the property after the disposal or placement of the hazardous substances occurred;
  • At the time of acquisition, he did not know and “had no reason to know,” i.e. made all “appropriate inquiries” in accordance with customary “standards and practices,” that any hazardous substance was disposed of or placed at the facility;
  • He did not actively or passively contribute to the “release” of the hazardous substance; and
  • Once contamination was found, he exercised due care with respect to the hazardous substance concerned, took precautions against foreseeable acts or omissions of third parties and the foreseeable corresponding consequences, and acted in compliance with land use regulations and governmental responders.

Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.