Expert: liznarr - 3/8/2004

Question
 Dear Sir or Madam,

  I am in the process of purchasing a parcel of land and was wondering if you can shed a little light on this.   The land (as a whole) at one time had a service station, a block house and a tin building.  The service station is long gone and that portion of land was sold a couple of years ago and now occupies a craft store.   The parcel that I am interested in has the block house and tin building.  The owner assures me that the underground store tank(s) were at the north side of the property which has the craft store on it.   He believes that the tank(s) were removed.  I have suspicions that they were not for various reasons.  
  1)My main question is how can I prove that the tank(s) were/are not on the property that I am interested in?  I called the State Dept- Underground Water Dept regarding the UST and it does not show on their records because the service station closed prior to the required registration(1988).  I have a call into the oil company real estate dept and asked if they could tell me where the tanks were located back then, so far no answer and I don't know if I will get one. Is the County have a record?  
   I am not interested in opening up a can of worms or getting anyone in trouble, but I do need to protect myself.  If the tank(s) are on my property I am not sure that I will go through with the purchase without additional soil testing, etc.   
  2)If  the tanks are not on my property do I have any liability when I try to sell the property if the soil is contaminated or does liability fall back to the owner of the UST?  
3)If the property has city water does it make a difference if the soil is contaminated or not?  
  Also, the craft store is tied into the water and septic tank of the block house and has a verbal agreement with the owner to pay for the water bill.  4)How can I make them partially responsible for the septic tank in case a problem arises and do they have any so called (sorry for the pun) “squatters rights”?  Should I take care of all this before purchasing the property or does it matter, the property would be mine and I can do what I want.
Thank you in advance for your assistance.

Angela

P.S.  This property is located in a small town down South.  

Answer
Hi Angela,

Thanks for writing with your questions.  I will address them individually.

On your question:  My main question is how can I prove that the tank(s) were/are not on the property that I am interested in?

Since the current owner (a) Is assuring you that the underground storage tank(s) you are concerned about were on the North side of the property with the craft store, and additionally (b) Believes that the tank(s) were removed, ask him where he is obtaining his information and to document it.  You are very smart to realize that relying on cheap lip service could be the most expensive mistake you could ever make.  

The logical objective here, in my opinion, is not necessarily to prove that the tank(s) were/are NOT on your property, but rather to establish WHERE the tank(s) were located … and then you will have your answer.

Just an idea, but if you establish ownership dates for the service station (through your County RMC or Clerk of Court) and then go back to the recorded PLATS for the service station property during its ownership period, you might can determine from a recorded survey/plat if the location of the building and/or the tanks is plotted on the plat.  

If you are able to determine the above (or at least the location of the station itself on the property), from there, you might ask the oil company in question where, in relation to the location of the “station,” the tanks would likely have been buried ... and how deep any tank(s) were likely to have been buried.  Possibly a company could do some strategically-placed steel or wire PROBES for you to the depth that the tank(s) should have been buried in an attempt to locate them.  You could also do the same thing for the land you are considering purchasing.  The probes could be done by GRIDS, or section-by-section, of the entire property.  Depending on the depth you would need to go and how large a parcel you are considering, this could be a time-consuming task, but worth the effort for you.

An alternative would be to ask the Seller to assume all future liability should a tank(s) ever be discovered on the subject property.  This, in and of itself, is an extreme risk … the Seller could file for bankruptcy later, or just plain be financially unsound or Judgment-proof, and any future Judgment obtained against him could be worthless.

A question for you to research:  Depending on how deep the tank(s) might likely have been buried and what material they were made of, are there any commercial metal detectors that might be of help to you?  I don't know this answer, but this might be worth looking into.

Other than the above suggestions, I don't have a clue as to how you could prove the tank(s) are/were not on the property you are considering.

Your question,  Does the County have a record?  Again, depending on how long ago, the County may or may not have kept records of this.  Different counties within the same or different states do not necessarily keep records in the same manner.   It would be worth a visit to your County administration to ask some pointed questions (as opposed to a phone call where you could more likely be “swept aside”).  And if you do go to the County, don't talk with general clerks:  Go to the head of each department you think you need to be asking these questions.

As to your question, If the tanks are not on my property do I have any liability when I try to sell the property if the soil is contaminated or does liability fall back to the owner of the UST?

Yes, you would have liability … as would ALL previous owners dating back to the ownership of the contaminating owner.  This type liability is covered by The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, which was enacted on December 11,1980 by Congress.  
I did some research to document this part of my answer, and I have included links to some of the sites I went to so that you can do additional research yourself if you want to.

Liability under CERCLA is "strict,” "retroactive" and, "joint and several" as stated on the site http://www.epa.gov/compliance/cleanup/superfund/find/liability.html

The Superfund Amendments and Reauthorization Act (SARA) amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) on October 17, 1986.  SARA reflected EPA's experience in administering the complex Superfund program during its first six years and made several important changes and additions to the program. SARA.

Quoting from http://www.cla.sc.edu/geog/hrl/sctrap/regulati.htm
“CERCLA, commonly referred to as Superfund, tracks hazardous waste sites that are inactive or abandoned. The sites are tracked from initial discovery to listing on the National Priorities List (NPL). NPL sites are Superfund sites that are determined to be a priority for cleanup and remediation….”

I am quoting next directly from the site http://www.cla.sc.edu/geog/hrl/sctrap/govdocs/super.htm

“…With the enactment of CERCLA in 1980, the Congress created the Superfund program authorizing EPA, among other things, to clean up contamination at hazardous waste sites. CERCLA also created a trust fund available for various cleanup activities and authorized EPA to compel the parties responsible for these sites to help conduct or pay for the cleanup. The Superfund program was extended in 1986 and in 1990 and is now being considered for reauthorization. Under CERCLA, EPA assesses contaminated areas and then places the sites it considers to be the most highly contaminated on the NPL for further investigation and cleanup.”
     And
“EPA responds to hazardous substances at Superfund sites through "removal" and "remedial" actions. Removal actions are generally short-term (less than 1 year), low-cost (under $2 million) measures intended to address actual or potential releases of hazardous substances that pose a threat to human health or the environment. Although many removal actions are temporary measures to prevent exposure by stabilizing conditions at a site or limiting access to the site, some removal actions may permanently clean up contamination. Typical removal actions include installing security measures at a site, removing tanks or drums of hazardous substances from a site, or excavating contaminated soil. By contrast, remedial actions are long-term measures intended to permanently mitigate the risks from a site. Typical remedial actions include treating or containing contaminated soil, constructing underground walls to control the movement of groundwater, and incinerating hazardous wastes….”

While I, personally, have never been involved in a transaction involving hazardous cleanup, you may want to contact the Environmental Protection Agency for some help and/or suggestions.  Also, a good reputable environmental attorney should be able to give you most of the answers you are looking for.

There's a wealth of information available on the Internet.  Check out some of the links I found on the Google search engine at
http://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=cercla&btnG=Google+Search

On your question, If the property has city water does it make a difference if the soil is contaminated or not?  

I would say, yes.  Rain water drain off from subject property could cross-contaminate another property.  Also, if a tank exists and continues to leak any hazardous residue at all, underground water saturation at different depths of the water table could possibly continue to pollute and cross contaminate.

On your question:  The craft store is tied into the water and septic tank of the block house and has a verbal agreement with the owner to pay for the water bill.
4)How can I make them partially responsible for the septic tank in case a problem arises and do they have any so called (sorry for the pun) “squatters rights”?

I'm not an attorney, but I am of the understanding that by the Statute of Frauds (the statute which basically says that for an agreement to be enforceable in a Court of Law, it must be IN WRITING), this ORAL agreement you mention should carry no weight.  You probably would, however, need to consult with an attorney for suggestions on severing the septic and water lines … which brings up yet another question:  Is the septic tank which services the subject property (and also the craft store) an “approved” tank, and capable of carrying the “load” of the two combined properties?  

Again, this is something that your County would regulate, and depending on how old the tank is, your County may or may not have records of permitting the septic tank originally and/or installation diagrams.  A simple question of your County about two separate ownerships of adjacent properties sharing a septic tank and water line could yield some interesting answers.

Finally, your last question:  Should I take care of all this before purchasing the property or does it matter, the property would be mine and I can do what I want.

If I were you, I would not close on this property until you have all the answers you want.  If you have all the answers, you can then make an informed decision on whether or not to proceed.  

A final question for you:  Do you have a Realtor representing you?  And if a Realtor is involved, if he/she is not familiar with CERCLA laws, cleanup, etc.,  you might want to consider dealing with a Commercial Realtor (possibly with a CCIM designation) who would probably be MUCH more versed in this type problem than even I or any “ordinary” Realtor would be.  If you are working with a Realtor who is not knowledgeable on this topic, ask that he/she withdraw from the transaction so that you can be represented by someone who can intelligently see you through this.

This was a lengthy reply, but there was no simple way to shortcut the answers and suggestions I have given.

Please let me know the outcome of your situation, whenever that is.  My email address is liznarr@sc.rr.com

I hope the above information is helpful to you and points you in the right direction.  Please don't forget to rate my answer.  Feel free to write again if you have additional questions.

Good luck to you.

Regards,

Elizabeth Narr