ABA Family Legal Guide

Home Ownership

Property Insurance and Other Protections

Environmental Issues

Who is responsible for cleaning up toxic wastes?

The law may hold homeowners responsible for the cost of cleaning up toxic waste sites even if they had nothing to do with creating the problem. Responsible parties are jointly and severally liable, including the current homeowner, the owner of the property when the pollution was caused, and the person or company who caused it (which could be another party altogether). Jointly and severally means that any one of them can be forced to pay the entire cost. That may be the current homeowner, who is probably the easiest one to find. Then it's up to the homeowner to find the others and sue to recover the cost.

When someone discovers the problem and contacts the city or county health department, an inspector will come out to conduct tests and determine the source of the pollution. The cost of investigation alone can be expensive. Then the department will clean up the site according to state regulations. The cleanup process might involve ordering the homeowner to hire a consultant and a remediation crew. If it's an emergency or an immediate threat to water quality, the agency may send someone in to clean it up, then sue the homeowner for reimbursement. But that is a difficult process; usually agencies first try to get the homeowner to take care of a problem.

The cleanup process may involve judgment calls and negotiation. Oil in the soil from a leaking tank, for example, will eventually degrade. Instead of hauling all the old soil out and replacing it, it might be less expensive to drill new wells for those affected. If your property has a toxic waste problem, hire a lawyer experienced with environmental matters to help you through the process. It might involve obtaining an analysis to estimate how long before the waste would degrade and how far and fast it's likely to migrate until then. In some cases, the negotiations turn into a battle of experts.

What if you don't think you should have to pay for the cleanup because you didn't have anything to do with causing the pollution? Your best hope is the innocent landowner defense, under the Superfund Amendments and Reauthorization Act of 1986, which limits the liability of a landowner who made all appropriate inquiry into the environmental condition of the property before buying it. That means the only way you would be off the hook is if you had the foresight to have an environmental survey done before buying the property to see if hazardous substances contaminated it. That would include a visual inspection of the property and compilation of a history of past owners and their waste-disposal practices, contaminant releases and violations, and other information. Chances are you didn't do that. It's the sort of thing lenders sometimes require for commercial loans because lenders also can be on the hook for toxic waste sites.

In 2002, Congress revised old laws to release new owners of property with toxic waste on it from liability for environmental damage they didn't cause, if they comply with state or federal cleanup guidelines. This makes it far less likely that you'll be caught in a morass of litigation.

To prevent future problems, check with your local health authority to find out how to meet state regulations for disposal of motor oil, paint, antifreeze, and other toxic substances.