Liability
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A property owner faces liability risks in two broad categories: regulatory liability (federal and state agencies) and third party liability (cost recovery by private parties). Liability concerns are at times cited as obstacles to revitalization. Liability concerns also arise due to unknown contamination that may be found on the site. Other environmental uncertainties in the revitalization process include: the potential stigma tied to revitalization sites, the uncertainty related to future compliance costs and problems in navigating the regulatory process in a time efficient and effective way.
Remediation-based risk includes the potential that if site contamination exists, the owner and operator will be liable for the costs of cleanup, including site investigation and assessment, legal fees, and regulatory compliance consulting fees. These costs may include:
- Cost of identifying and determining site contamination
- Cost of site remediation
- Cost of complying with federal and state regulations during remediation, such as consulting and legal fees
- Cost of legal fees to defend against lawsuits brought by regulators (federal and state) and third parties
Personal injury risks include the potential that if site contamination exists, the owner and operator will be liable for the costs of lawsuits stemming from bodily injury caused by contamination existing on site or migrating off site. The associated risks include the following factors:
- Cost of personal injury occurring off site caused by migrating contaminants
- Cost of personal injury occurring on site caused by site contamination
Other types of liability concerns include:
- “Reopeners”- occurs when there is a change in standards or requirements that could reopen a previously approved mitigation to demands for further work.
- Property owners or occupants failure to maintain engineered controls or conform to land use control and limits.