Super Fund, Super Danger. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was created in 1980. It established a fund of $9 billion, called the Superfund to clean up hazardous waste sites & respond to spills.

Liability under CERCLA is RETROACTIVE. In other words, if contamination is found on or under the property you sell, you could be held liable for cleanup costs years after the sale has occurred, even if you didn't cause the contamination.

SARA to the Rescue. The Superfund Amendments and Reauthorization Act (SARA) gave some relief to land owners who didn't commit the contamination, and who sometimes in the chain of title were banks. The concept of the innocent landowner immunity was recognized. In certain cases, a landowner in the chain of ownership was completely innocent of all wrongdoing and therefore should not be held liable. To be exempt from liability, the courts would consider criteria such as:

*The Pollution was caused by a third party

* The Property was acquired after the fact (i.e., after the pollution occurred)

*The Landowner had no actual or constructive knowledge of the damage.

*Due care was exercised when the property was purchase (the landowner made a reasonable search called an Environmental Phase I, a site assessment).

*Reasonable precautions were taken the exercise of ownership rights.

Call in the Pro's. An environmental consultant, (probably the best on the Coast is Rimmer Covington, 228-452-4999) can perform a Phase I site assessment on your property. The purpose is to determine if there has ever been an activity on or around your property that could have caused contamination. They look at old aerial at the tax assessor's office that can go back as far as the 1940's. They are looking things like above ground storage tanks, junk yards, or industrial or commercial activity which may possibly cause a toxic spill. They will also consult extensive data basis for existence of underground storage tanks, or known areas of contamination near your property. If they find no reason to suspect contamination, you can use the report in your property sales pitch. If they find something, the environmentalist begin digging... literally.

Phase II. If your consultants suspect contamination, they will bore for samples in the area they suspect the contamination to exist. If the results show your property clean, hang on to that report, and give a copy to all prospective buyers. If not, you've still got some options.

Raising the Bar. Instead of digging up and replacing contaminated dirt, the Department of Environmental quality will sometimes allow the permitted levels of contaminants to be raised. Your consultant will know how to handle this. If the DEQ won’t go for changing the standards, you need to look know where the contamination is coming from. If it’s coming from your neighbor’s property, your consultant and an attorney YOUR ENVIRONMENTAL CONSULTANT recommends (not all attorneys are environmental law specialists. Your consultants SHOULD know an attorney best fitted to do the job), and formulate a plan of action to keep you out of trouble. If the contamination started on your property and you didn’t cause it, your consultant & attorney team will form a plan of action for that scenario. If you caused the contamination, you’ll probably be shelling out some major bucks to your consultant, your attorney, & a dirt company who will be digging the hauling away the old dirt. After that, you can sell your property without worrying about getting sued by the new owner…at least not for the contamination issue.

Insurance. Some companies offer environmental insurance to cover you against tainted properties. A quick Google search should tell you which insurance companies offer this option.