Articles and Speeches
Protections Available for Purchasers of
Contaminated Property in South Carolina
February 10, 2014
Karen Aldridge Crawford
Reprinted with permission from the Environmental Litigation Committee of the American Bar Association
Hazardous Waste Management Act (HWMA)
The HWMA adopts CERCLA by reference, giving the state environmental agency power to implement and enforce the provisions of CERCLA as state law, including the cost recovery and protections provided therein. S.C. Code Ann. § 44-56-200. However, the HWMA only expressly references the innocent landowner defense. § 44-56-200(B)(2) Accordingly, although CERCLA and its subsequent amendments have been adopted by reference, some question may exist (and the courts have not addressed) whether the other defenses available under CERCLA, particularly the bona fide prospective purchaser (BFPP) defense, are available under the HWMA. However, as a matter of practice, the state environmental agency has administered those qualified for the BFPP protections (under federal law) under the Brownfields/Voluntary Cleanup Program, wherein a nonresponsible party can avail itself of similar protections to those afforded under CERCLA by entering into a voluntary cleanup contract (VCC). Essentially, use of the voluntary cleanup program for this purpose also allows the BFPP to identify, with the state’s input, what constitutes due care as required under federal law and obtain some finality of that scope of work by defining the scope of work in the VCC.
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