Fear of Foreclosure: United States v. Maryland Bank & Trust Co.

Phillip D. Reed

Editors' Summary: The trend in cases deciding CERCLA landowner liability has been to increase the situations in which liability arises. Lending institutions' liability for cleanup costs and remedial action at hazardous waste sites for which they have made loans to property owners is the most recent area of dispute. The recent decision in United States v. Maryland Bank & Trust Co. has caused the banking industry to sit up and take notice of CERCLA landowner liability. Contrary to another recent district court decision, United States v. Mirabile, the Maryland court ruled that CERCLA § 101(20), which excludes one holding title to protect a security interest from the definition of "owner" subject to landowner liability, does not apply after the lending institution has foreclosed on a property. As a landowner, the bank will have the opportunity, however, to make out the affirmative defenses allowed in § 107(b). The author compares the two contrary cases and concludes that the results may be reconciled. He analyzes the potential impacts of Maryland Bank & Trust on banks' future loans for property that may contain hazardous wastes and discusses the usefulness of CERCLA's third-party defense to bankers facing liability.

[16 ELR 10165]

Liability for hazardous substance cleanups, like the flu, eventually seems to get around to everyone with any contact with the infected site and it is now beginning to make bankers sick. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ made landowners liable for the costs of cleaning up toxic chemical "releases" on their land.² Liability under CERCLA³ is broad, but the statute expressly limits the liability of financial institutions holding title to CERCLA sites. Landowner liability also is subject to narrow affirmative defenses. As the breadth of landowner liability has become apparent, it has made commercial real estate interests feverish with concern, but the banking community has breathed more easily. CERCLA § 101(20),⁴ which excludes from the definition of "owner" one holding title to protect a security interest, seemed to innoculate lenders against the disease. The first cases to address the issue indicated that banks that did not dirty their hands in the management of hazardous-waste-related businesses to which they had made loans would not be liable even if they had to foreclose on and take full title to the property.⁵ United States v. Maryland Bank & Trust Co.,⁶ decided in April, punched a large hole in that shield by ruling that its protection lasts only until a bank forecloses on a CERCLA site. At that point the new owner has available just the statutory affirmative defenses, which can prevent only the cleanest and most careful landowners from catching the CERCLA liability disease.

The Statutory Scheme

Three categories of landowners may be liable under CERCLA § 107(a): current owners, owners during dumping, and owners who abandoned sites. Anyone with title to a CERCLA site has good reason to fear liability.⁷ Current owners of CERCLA sites are liable,⁸ as are those who [16 ELR 10166] owned the sites at the time the hazardous substances came to be located there.⁹ There is some economic justification for these rules. The past owners presumably profited from the disposal activities;¹⁰ the current owners stand to benefit from removal of the toxins, since the value of the property should increase.¹¹ Those owners who simply abandon sites also are liable,¹² a provision that would appear designed to prevent otherwise liable owners from escaping merely by giving up title. The liability of site operators is governed by the provisions addressing owners, but owners need not have operated the site to be liable.¹³ The scope of landowner liability thus is broad, but it is not all-inclusive. One who owned a CERCLA site before or after it was used for hazardous substance disposal, who sold the site before anyone incurred cleanup costs reimbursable under CERCLA, and who never operated the site, apparently is not liable.

The liability of those holding title to land on which hazardous substances have been released is also limited by a security interest exemption. The term "owner"¹⁴ does not include "a person, who, without participating in the management of a … facility, holds indicia of ownership primarily to protect his security interest in the … facility."¹⁵ Congress clearly intended to give banks and other lending institutions some respite from the broad reach of CERCLA liability, so long as they do not help manage the sites in which they hold security interests. The statute and the legislative history¹⁶ leave open one very important question: is a bank still covered by the security interest exemption if it forecloses on and takes title to property on which a CERCLA site is located and then does only what is necessary to keep the property from deteriorating? The bank's actions may have been a logical extension of the need to protect its security interest, but that interest has been replaced by ownership.

Like other parties made liable under CERCLA, a site owner can avail itself of the affirmative defenses of § 107(b).¹⁷ It can escape liability if it can prove that the hazardous substance release was due solely to acts of (1) war,¹⁸ (2) God,¹⁹ or (3) unrelated third parties.²⁰ The defenses are extremely narrow. The third-party defense, which is the one most likely to be available under normal circumstances, seems well-suited to the plight of landowners, many of whom were not connected to the dumping of toxic wastes on their land. However, the defense only applies if the release was caused solely by a third party whose acts or omissions did not occur in connection with a direct or indirect contractual relationship with the defendant.²¹ In addition, the defendant must have exercised due care with regard to the hazardous substances and provided against foreseeable acts or omissions by the third party.²²

The third-party defense is not easy for landowners to establish. A bank that had loaned money for an industrial activity generating hazardous waste or for a waste disposal business arguably would have a sufficient contractual nexus to the problem to lose the defense. The burden of proving due care in dealing with the waste may be difficult given the high standard of care that the common law imposes on landowners for dangerous, artificially created conditions on the land.²³ The limitations of the third-party defense make the security interest exemption especially important for lending institutions.

Maryland Bank & Trust

Maryland Bank & Trust got into trouble helping the son of a long-time customer. In the 1970s the bank loaned money to Hershel McLeod Sr. for two trash and garbage businesses he operated on his 117-acre farm. During 1972 or 1973, a period for which the record does not yet disclose the status of the bank's relationship to McLeod's businesses, he opened a new dump site on the farm and began to accept hazardous chemical wastes.²⁴ In 1980, McLeod's son, Mark, applied for a $335,000 loan to buy the property. The bank approved the application and Mark McLeod bought the property in December 1980. Soon thereafter, the Farmer's Home Administration (FmHA) granted Maryland Bank & Trust's application for a 90 percent guarantee for the loan. By some time in 1981, the new owner had stopped making payments on the loan and the [16 ELR 10167] bank, allegedly acting in accord with a directive from the FmHA,²⁵ started foreclosure proceedings. In 1982, for a foreclosure sale bid of $381,500, the bank bought the farm.²⁶

The bank held onto the McLeod frarm for reasons not disclosed in the opinion. Within a year, the hazardous waste cat was out of the bag. The Environmental Protection Agency (EPA) began to remove drums of chemical waste and contaminated soil in late 1983 and sent the bank a bill for over $551,000 when the job was finished.²⁷ When the bank would not pay, EPA sued in the U.S. District Court for Maryland.²⁸ The government moved for summary judgment since undisputed facts established the release of hazardous substances from a facility and defendant's ownership of the site. The bank countered with its own summary judgment motion claiming that it was not an owner under § 101(20), since it held title only to protect its security interest in the loan to Mark McLeod.

On April 9, 1986, the court gave the government a major victory. Defendant had raised three arguments: that § 107(a)(1) applies only to owners who also are operators; that the § 101(20) security interest exemption remained in effect after foreclosure and insulated the bank from liability; and that the bank was protected by the third-party defense because it had no connection with McLeod's hazardous waste business. The court flatly rejected the first two arguments and reserved judgment on the third until after trial.

The court first dispensed with the bank's argument that § 107(a)(1) applies only to owners who also operate. According to the court, the argument ignored legislative history and elements of the statutory scheme indicating that Congress intended the two categories of responsible parties to be separate.²⁹

The court then held that the bank was not entitled to the security interest exemption. The bank argued that foreclosure and taking title had been necessary to protect its security interest.³⁰ The court, however, reasoned that by using the present tense,³¹ Congress intended to limit the exemption to the time during which the security interest was in force. Those who held full legal title when the cleanup took place were liable as owners. The purpose of the exemption, the court concluded, was to protect lenders in Maryland and 12 other states where mortgagees hold title while the mortgage is in force. When the McLeod farm was cleaned up, Maryland Bank & Trust did not hold a security interest; it had the full legal ownership of the farm.³²

The court found a quantum of support for this conclusion in the legislative history,³³ but relied most heavily on the policy implications of protecting banks after foreclosure.

Under the scenario put forward by the bank, the federal government alone would shoulder the cost of cleaning up the site, while the former mortgagee-turned-owner, would benefit from the clean-up by the increased value of the now unpolluted land. At the foreclosure sale, the mortgagee could acquire the property cheaply. All other prospective purchasers would be faced with potential CERCLA liability and would shy away from the sale. Yet once the property has been cleared at the taxpayers' expense and becomes marketable, the mortgagee-turned-owner would be in a position to sell the site at a profit.³⁴

The court added that mortgagees-turned-owners do not need the protection of a broad reading of § 101(20); they can protect themselves by taking care in choosing mortgagors and, if truly innocent of all connection with the problem, with § 107(b)(3)'s third-party defense.

The court distinguished the contrary precedent of United States v. Mirabile, in which another district court held that a foreclosing bank is insulated by § 101(20).³⁵ To the Maryland Bank & Trust court, the key difference between the cases was that the bank in Mirabile promptly assigned title to another party.³⁶ The Mirabile court had decided that the foreclosing bank's participation in the management of the facility was the crucial question; steps taken to secure the property from vandals qualified as protecting the security interest, not managing the disposal site. In contrast, the Maryland Bank & Trust court never discussed whether the bank was involved in management. It expressly declined to consider how it would decide Mirabile,³⁷ but also expressly rejected the reasoning of that decision on the scope of § 101(20).³⁸

Having given the bank the grim news about the security interest exemption, the court threw in a little good news. It refused to grant the government's request for a ruling that the § 107(b)(3) defense could not apply as a matter of [16 ELR 10168] law. The court rejected the government's argument that the bank's long contractual relationship with the McLeods or its lack of due care removed the bank from the protection of § 107(b)(3). On the contractual relationship issue, the court asked for more information, both on whether there were loans outstanding during the period of hazardous waste disposal, and on the overall nature of the business relationship between the bank and McLeod Sr. On the due care question, the court decided it needed more information on the bank's actual or constructive knowledge about what McLeod was allowing to be dumped on the farm. Although the bank has by no means established a defense, the court's ruling, prticularly its apparent intention to require a direct contractual link to the disposal activities, is a small victory for the bank.³⁹

Analysis

Mirabile and Maryland Bank & Trust cast the issues concerning the security interest exemption into stark relief. The two district courts approached the issue of foreclosing banks' liability from opposite angles. The Mirabile court was primarily concerned with giving full effect to the security interest exemption. Foreclosure was a logical extension of the bank's security interest status.⁴⁰ The passage of title was irrelevant; the key to the coverage of § 101(20), as before foreclosure, was whether the bank participated in management of the site or the waste-generating business.⁴¹ The policy arguments that moved the Maryland Bank & Trust court carried no weight with the Mirabile court.⁴² The Maryland Bank & Trust court, on the other hand, principally wanted to avoid establishing a rule that would allow private parties to profit from government cleanup of CERCLA sites. It concluded that Congress intended the security interest exemption to be narrow and ruled that the passage of title at foreclosure was everything, or nearly everything.⁴³ The Maryland Bank & Trust court did not consider the impact of this rule on the utility of the exemption, concluding that a bank could protect itself by letting the mortgagor keep the contaminated property or by not bidding at the foreclosure sale.⁴⁴ In many respects, then, Mirabile and Maryland Bank & Trust are almost like opposite sides of the coin.

Comparing the two courts' rationales in light of the facts in Maryland Bank & Trust provides support for the Maryland court's analysis. Maryland Bank & Trust's efforts to protect its security interest turned into massive liabilities. The bank stands to lose over half a million dollars on its $335,000 investment even though it never participated in management of the facility.⁴⁵ However, if the bank's loans had nothing to do with the hazardous waste disposal and the bank did not know about and reasonably should not have known about that activity, it will likely be successful in its § 107(b)(3) defense.⁴⁶ The public will foot the cleanup bill and the market value of the bank's property should rebound to the level the bank expected it would have when it foreclosed on what it believed to be a relatively clean piece of land. If the bank knowingly loaned money for the hazardous waste disposal business, the bank clearly should be liable under the principle of "he who profited from the pollution should pay," which seems to underlie CERCLA. If the court denies the defense on the contractual relationship issue, simply because the bank loaned money to McLeod Sr. during the period in which hazardous wastes were being dumped on the farm, regardless of the bank's actual or constructive knowledge,⁴⁷ the bank's security interest will have soured into a heavy liablity without much culpability or profit on the part of the bank. However, CERCLA imposes this kind of retroactive liability on other categories of responsible parties who are no more closely connected with a particular site.⁴⁸

Despite their differences, both decisions may be correct. As the Maryland Bank & Trust court suggested, duration of the bank's ownership is one basis for reconciling the two cases.⁴⁹ Indeed, the bank in Mirabile may never have taken legal title and thus its situation may be even more distinct from that of the Maryland Bank & Trust Co. Furthermore, the bank in Mirabile may not have been liable as an owner at all. There was no dumping at the Mirabile property while the bank held title after foreclosure; the bank did not abandon the site; and it was not the owner when the cleanup was performed.⁵⁰ In other words, after foreclosure, the bank may not have fallen into one of the three categories of owners that CERCLA makes liable. It may only have qualified as a liable owner while it held the security interest, since dumping occurred during that period. The Mirabile court did not state the issue in this fashion, but its analysis is consistent with this view of the [16 ELR 10169] case.⁵¹ Thus, the results in the two cases may be reconciled, even if their rationales conflict.

The Maryland Bank & Trust court's eventual resolution of the third-party defense issue is now the critical problem for the bank. The court indicated that it is keeping an open mind about the defense. The decision suggests standards by which the court might judge the contractual relationship and due care issues⁵² and implies that the court is prepared to exonerate the bank if it really was innocently entangled in this hazardous waste web. However, it would be unwise to read too much legal significance into the court's reluctance to grant summary judgment. The court may be prepared to construe the defense as narrowly as it construed § 101(20), but only on a more complete record.

Implications

In the aftermath of Maryland Bank & Trust, financial institutions certainly will follow the court's admonition to exercise caution in dealing with mortgagors who may have hazardous waste problems.⁵³ Banks will proceed carefully before lending money on property that may contain hazardous wastes, perhaps by routinely employing environmental auditors. They will look to § 107(b)(3) for their protection and may be able to strengthen their third-party defenses by conditioning loans on the absence of hazardous waste.⁵⁴

Lenders for whom such advice comes too late will have more difficult choices. Those holding mortgages on businesses disposing of hazardous substances must walk a narrow path, taking enough interest in the waste to establish the exercise of due care, but not becoming sufficiently involved in the management of the enterprise to forfeit the security interest exemption. Those whose mortgagors are in default will have to consider whether the likelihood of cleanup liability makes foreclosure a reasonable approach. Where the mortgagor clearly will never pay and the property has significant net value despite its hazardous waste liability, the bank may have no choice but to foreclose. Where the cleanup liability dwarfs the financial interest in the property, as in Maryland Bank & Trust, banks will have to think long and hard about whether they can make out a third-party defense before bidding at foreclosure sales. The result is likely to be an increase in the number of future sites for which no solvent responsible parties can be found. Those courts already holding title to CERCLA sites because of past foreclosures may hope to obtain more favorable rulings from other district courts or higher courts, but the persuasive reasoning of Maryland Bank & Trust is likely to prove difficult to overcome. Nor is Congress likely to provide relief in the near term.⁵⁵ Like other landowners and hazardous waste generators who have learned too late just how broad CERCLA's liability scheme can be, they may simply have to pay the piper.

1. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

2. CERCLA § 104, 42 U.S.C. § 9604, ELR STAT. 41945. "Release" is defined broadly to include virtually all means by which hazardous substances get into the environment. CERCLA § 101(22), 42 U.S.C. § 9601(22), ELR STAT. 41943.

3. CERCLA § 107, 42 U.S.C. § 9607, ELR STAT. 41947.

4. 42 U.S.C. § 9601(20), ELR STAT. 41943.

5. In re T.P. Long Chemical, Inc., 45 Bankr. 278, 15 ELR 20635 (Bankr. N.D. Ohio 1985) (dictum that had bank repossessed its collateral in toxic waste dump it would have been entitled to § 101(20) security interest exemption).

6. 16 ELR 20557 (D. Md. Apr. 9, 1986).

7. 42 U.S.C. § 9607(a), ELR STAT. 41947. Liability is strict, joint and several, and with little regard for causation. See generally, Comment, CERCLA 1985: A Litigation Update, 15 ELR 10395 (Dec. 1985); Comment, CERCLA Litigation Update: The Emerging Law of Generator Liability, 14 ELR 10221 (June 1984).

8. CERCLA § 107(a)(1), 42 U.S.C. § 9607(a)(1), ELR STAT. 41947. The statute uses the term "facility" from which a release has occurred or is threatened; a facility includes all manner of hazardous substance disposal sites, as well as "any site or area" where hazardous substances "come to be located" except for vessels and consumer products. Section 101(9), 42 U.S.C. § 9601(9), ELR STAT. 41943.

9. CERCLA § 107(a)(2), 42 U.S.C. § 9607(a)(2), ELR STAT. 41947.

10. If they did not have any connection to the disposal, they may be protected by the third-party defense of CERCLA § 107(b)(3), 42 U.S.C. § 9607(b)(3), ELR STAT. 41947. See infra note 20 and accompanying text.

11. The current owners also have a common law obligation to prevent harmful substances from leaving their land, see RESTATEMENT (SECOND) OF TORTS § 839 (the possessor of land is liable for abating artificial conditions on the land that create a nuisance or an unreasonable risk of a nuisance).

12. CERCLA § 101(20)(iii), 42 U.S.C. § 9601(20)(iii), ELR STAT. 41943.

13. CERCLA § 107(a)(1), 42 U.S.C. § 9607(a)(1), ELR STAT. 41947: "The owner and operator;" CERCLA § 107(a)(2), 42 U.S.C. § 9607(a)(2), ELR STAT. 41947: "any person who … owned or operated;" CERCLA § 101(20)(A), 42 U.S.C. § 9601(20)(A), ELR STAT. 41943: "'owner or operator' means … any person owning or operating [the] facility …." The variation among the provisions in their treatment of owners and operators is somewhat confusing. On first reading, the use of "and" in § 107(a)(1) suggests that current owners are liable only if they also are operators, but § 107(a)(2) makes those who owned or operated at the time of disposal liable. Thus, unless § 107(a)(1) makes current owners liable even if they are not operators, it adds nothing to the liability scheme. See also United States v. Argent Corp., 14 ELR 20616 (D.N.M. May 4, 1984) ("CERCLA's legislative history shows a deliberate omission from the Act of language in the proposed House version which would have required participation in management or in operation as a prerequisite to owner liability.").

14. The section also makes transporters liable as owners when hazardous substances are in their possession, but exempts them from ownership status when they do not have the wastes. Section 101(20)(B), (C), 42 U.S.C. § 9601(20)(B), (C), ELR STAT. 41943.

15. CERCLA § 101(20)(A), 42 U.S.C. § 9601(20)(A), ELR STAT. 41943.

16. Since CERCLA was rushed out in the last hours of a session, there is no conference report to explain major changes from the House and Senate bills.

17. 42 U.S.C. § 9607(b), ELR STAT. 41947. CERCLA also makes generators and transporters liable. Section 107(a)(3), (4), 42 U.S.C. § 9607(a)(3), (4), ELR STAT. 41947.

18. CERCLA § 107(b)(1), 42 U.S.C. § 9607(b)(1), ELR STAT. 41947.

19. CERCLA § 107(b)(2), 42 U.S.C. § 9607(b)(2), ELR STAT. 41947.

20. CERCLA § 107(b)(3), 42 U.S.C. § 9607(b)(3), ELR STAT. 41947.

21. The key terms in this equation are not defined in the statute or discussed in the legislative history.

22. Both the contractual relationship test and the due care test must be met to take advantage of the defense.

23. See supra note 11. Arguably, since a landowner is liable in nuisance for damages from toxics leaving its land the standard of care applicable to the § 107(b)(3) defense would be quite high. See also Bleicher & Stonelake, Caveat Emptor: The Impact of Superfund and Related Laws on Real Estate Transactions, 14 ELR 10017 (1984).

24. Among the wastes found at the site were toluene, ethylbenzene, lead, and mercury. Maryland Bank & Trust Co., 16 ELR at 20558.

25. Id. at 20560, n. 8.

26. Id. at 20558. There is no indication in the opinion whether there were other bidders or why the bank bid more than the value of its mortgage.

27. Id.

28. United States v. Maryland Bank & Trust Co., 16 ELR 20557 (D. Md. Apr. 9, 1986), ELR PEND. LIT. 65847 (D. Md. complaint filed Oct. 31, 1984).

29. The court conceded that the "the owner and operator" language could be read to limit liability to owners who also operated facilities. However, it concluded that to "slavishly follow the laws of grammar while interpreting acts of Congress would violate sound canons of statutory interpretation." 16 ELR at 20559. The court found a passage in the House report on H.R. 85, an oil spill liability bill that was one of the legislative predecessors of CERCLA, a definition of "operator" as one carrying out functions for the owner and concluded that an owner could not also be an operator or this provision would be meaningless. Id. The court also relied on New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (current owner is liable regardless of causation). Id.

30. The bank also argued that it was an "involuntary owner" because the FmHA required it to foreclose on the property. Id. at 20560. n. 8. The court rejected the argument, finding it without support in the statute. The court did note that the role of the FmHA might be relevant in a counterclaim for contribution for any liability imposed on the bank, but also noted that the bank and FmHA had dismissed their claims against each other with prejudice. Id.

31. Section 101(20) uses the language "hold indicia of ownership."

32. 16 ELR at 20559.

33. Id. at 20559-20560. The language of the report on H.R. 85 is not functionally different from that of § 101(20), indicating that Congress intended to exempt those holding title to secure a loan, but not indicating whether the exemption continued if the lender had to foreclose to protect its interests.

34. Id. at 20560.

35. 15 ELR 20994 (E.D. Pa. Sept. 4, 1985). The court wrongly cites the companion decision (Mirabile II) by the same name, published at 15 ELR 20992 (E.D. Pa. Sept. 4, 1985) (party purchasing from foreclosing bank may be able to claim § 107(b)(3) defense).

36. Indeed there is some question whether the bank really had full legal title in that case, since it assigned its high bid at the sheriff's sale to the eventual purchaser. The Mirabile court noted that this issue was not relevant, indicating that its holding would be the same whether the bank's title were equitable or legal. Mirabile, 15 ELR at 20996.

37. Maryland Bank & Trust Co., 16 ELR at 20559, n. 5.

38. Id. at 20560.

39. The court refused to rule out the defense, but the defendant must still carry the considerable burden of proving itself entitled to the defense after trial. See supra notes 20-23 and accompanying text.

40. Mirabile, 15 ELR at 20996.

41. Id.

42. Id.

43. The court left open the possibility of allowing a lender who held title for a short time after foreclosure to avoid liability under § 101(20). Maryland Bank & Trust Co., 16 ELR at 20559, n. 5.

44. Id. at 20560, n. 6.

45. This assumes that the $381,500 the bank bid at the sheriff's sale includes whatever the bank was still owed on its loan and approximates the market value of the property without any hazardous wastes. Since the hazardous wastes were not brought to the government's attention until after the bank foreclosed, it is not unreasonable to assume that the bank either did not know about them or assumed it could not be liable for cleaning them up. Under those circumstances, it would be in the bank's interest to bid something approximating (though less than) the waste-free market value of the property. Thus, after paying the government's bill for cleaning up the property, the bank should be able to recover its loan and the extra it paid at the sheriff's sale. This model of the transactions concerning the McLeod farm is highly simplified and based only on the limited information presented in Maryland Bank & Trust Co., but suggests the nature of the economic forces at work in these bank foreclosure/CERCLA liability cases.

46. See supra text accompanying notes 38-39.

47. The court observed that it would not rule as a matter of law that McLeod Sr.'s disposal of hazardous wastes was connected to the bank's contractual relationship with him without knowing whether there were loans outstandingt during the 1972-73 period of toxics. It also discussed what the bank knew about McLeod's disposal activities as relating to the due care issue, not the contractual relationship issue. While it requires several speculative leaps of deduction, the inference might be drawn that the court would rule that the temporal overlap of the loans and the disposal would satisfy the contractual relationship test without actual knowledge on the part of the bank about the activities for which McLeod was using the money.

48. See Comment, CERCLA 1985: A Litigation Update, 15 ELR 10395 (Dec. 1985); Comment, CERCLA Litigation Update: The Emerging Law of Generator Liability, 14 ELR 10221 (June 1984).

49. Id. at 20559, n. 5.

50. Mirabile II, 15 ELR at 20993.

51. Management participation was the key, which is the undeniable litmus for determining a lender's liability when it only has a security interest.

52. See supra note 50. The court also suggested that the due care analysis might turn on what defendant knew or should have known about the presence of hazardous waste on the farm.

53. See supra note 30.

54. Such agreements might make clear that any hazardous waste activities conducted on the property are not in connection with the agreement.

55. See H.R. 2005, 99th Cong., 1st Sess. 132 CONG. REC. S12184 (daily ed. Sept. 26, 1985); H.R. 2817, 99th Cong., 1st Sess. 132 CONG. REC. H11069 (daily ed. Dec. 5, 1985). The House bill did include an "innocent landowner" provision protecting a person who unknowingly and despite the exercise of due care bought land that later proved to have hazardous wastes on it from liability as an owner. Id. at H11158.