Does CERCLA and the Texas SWDA also provide a “contiguous landowner defense.”

Yes.  In 2002, Congress also added the contiguous landowner defense as an additional third party defense to CERCLA liability.   The amendment essentially codified the previously existing EPA policy not to take enforcement actions against landowners whose property was contaminated by passive migration.  

The contiguous landowner defense is similar to the innocent landowner defense in that it applies to landowners who did not cause, contribute, or consent to the release or threatened release and who acquired their land without knowing of the contamination.  However, in contrast to the innocent landowner defense, the contaminants in question did not originate from the owner’s property, but instead migrated to it from a neighboring property. 

To fall within the contiguous landowner defense, the landowner must show:

  • That he did not cause or contribute to contamination, or consent to the release of a contaminant;
  • That he is unrelated to the entity that caused the contamination; and
  • That he took reasonable steps regarding all appropriate inquiry, disclosures, prevention of releases, and maintenance of institutional controls. 

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