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The regulation of “underground storage tanks,” or USTs, is regulated under Subtitle I of the CERCLA, or the 1980 “Comprehensive Environmental Response, Compensation and Liability Act,” 42 U.S. Code § 9601. Nevertheless, the subtitle is restricted by two factors; one, the definition of the type of the tanks that can be monitored, and two, the type of substances that are stored in these tanks. To be able to fall under the ambit of Subtitle I, the tank must be “underground with connecting pipes, with the bulk of the tank buried at least 10 percent of the same buried in the ground and engaged to store a “substance as [established]” under the article.
However, in the context of the CERCLA, petroleum; “crude oil and any faction;” these are released from the scope of the law. Petroleum discharges are addressed by the application of other laws. Section 101(14) exempts petroleum from the definition of “hazardous substances” that the CERCLA addresses; in this light, the primary laws that can be used in litigating these instances include the 1990 Oil Pollution Act; other laws that can be engaged in addressing oil discharges include the Clean Water Act and the Solid Waste Disposal Act (Bearden 6). Plaintiffs can use evidences that though the defendant used and engaged pollution mitigation or prevention measures to deal with the intrusion, the plaintiff can claim that the defendant should have engaged the measures earlier; this can be used to prove that the defendant had earlier knowledge of the issue that engaged the use of the same (Hayward 625-626). Here, it is found that CERCLA does not apply to the mentioned case.
In the estimation of the United States Environmental Protection Agency (EPA), the “National Priorities List (NPL) is a collection of Federal level prerogatives of the existing or possible discharges of “pollutants, [dangerous] substances, and contaminants” across the United States and jurisdictions. Initially, the compilation is designed to direct the EPA in establishing the sites that need additional investigation work. Nonetheless, the NPL is not geared to serve as a criminal investigation mechanism; the resource is mainly geared to provide information (EPA).
The 2002 Brownsfields Amendments established a novel “liability protection” scheme for “bona fide prospective purchasers (BFPP). Prior to the adoption of the Amendments, potential buyers of tainted lands listed in the NPL were hard-pressed to avoid culpability with being the owner of the property should it be proven that when the property was bought, these knew of the contaminated nature of the property. However, this can be avoided if the potential buyer will engage the EPA and agree to a “prospective purchaser agreement (PPA) before the purchase. The agreement must include guarantees that waives the initiation of any legal action founded on CERCLA §§ 106 and 107.
With the adoption of the Amendments, one can maintain and attain a BFPP status sans the need to enter into a PPA accord with the EPA. However, a party can only achieve this if these will be able to satisfy the required criterion to merit the defense. One of the main benefits of the BFPP is that the scheme is self-actualizing, and in this light, the EPA is not mandated to investigate the instance whether a party can qualify as a party under the BFPP. The BFPP as listed in CERCLA § 107(r) gave a new method in defending against liability of landowners for contaminated lands before the purchase of the land (Environmental Protection Agency 6-7).
Works Cited
Bearden, David M “Comprehensive Environmental Response, Compensation, and Liability Act: a summary of Superfund cleanup authorities and related provisions of the Act.” <https://www.fas.org/sgp/crs/misc/R41039.pdf
Duncan, Kevin R., Bailey, R. Todd “Innocence amid LUST: the innocent buyer and leaking underground storage tanks containing petroleum” B.Y.U Journal of Public Law Volume 7 (n. date) 245-279.
Hayward, Allison. “Common law remedies and the UST regulations” Boston College Environmental Affairs Law Review 21 (4) 1994, 619-666
United States Environmental Protection Agency “Revitalizing contaminated sites: addressing liability concerns” <http://www.ct.gov/deep/lib/deep/site_clean_up/brownfields/revitalizationhandbook2011.pdf
United States Environmental Protection Agency “National Priorities List” <http://www.eoearth.org/view/article/154782/
