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The Innocent Owner Program and Handling Contamination on a Property Caused by an Off-Site Source

Are you responsible for environmental contamination on your property that was caused by a release from an off-Site property? Do you own a property that has become contaminated by a release from an off-Site source?  Or have you encountered recognized environmental conditions (RECs) associated with an off-Site source during the due diligence phase of a property acquisition and you are unsure what will be required to address potential contamination? These are common questions property owners and developers may face while trying to redevelop properties that have become contaminated due to hazardous chemicals migrating in soil and/or groundwater onto their property from an off-Site source.  Common off-Site sources of contamination include filling stations, dry cleaners, automotive repair shops, and industrial facilities.

To address this issue, the Texas Commission on Environmental Quality (TCEQ) developed the Innocent Owner/Operator Program (IOP) that allows eligible property owners to be released from liability associated with environmental contamination caused by an off-Site source.  An Innocent Owner Certificate (IOC) issued by TCEQ is a valuable tool to control the liability associated with contamination arising off-Site and allow properties to be redeveloped.  The IOC does not cover future owners; however, future owners are eligible for an IOC once they acquire the property.

In order to be eligible for the IOP, the property owner must demonstrate to the TCEQ that their property has become contaminated as a result of a release from an off-Site source and that current or historical activities on their property have not caused or contributed to the contamination.  The process involves reviewing historical information to determine the uses of the Site and surrounding properties, and completing a soil and groundwater investigation to determine if the property is impacted.  This information is used to develop a Site Investigation Report (SIR) that supports the issuance of an IOC.  The Site Investigation Report is submitted to the TCEQ along with the IOP application and a $1,000 fee.  Information used to the develop the Site Investigation Report is generally obtained from Phase I Environmental Site Assessments (ESA) and Phase II Investigations, with an emphasis on data that demonstrates the contamination actually originated off-Site, with no contribution from on-Site activities.  If these reports have already been completed, Braun Intertec can use the information to develop a Site Investigation Report.

Braun Intertec has completed numerous IOP applications and successfully obtained IOCs on behalf of our clients in Texas.  This has not only enabled our clients to develop and finance their properties but also avoid costly environmental remediation.