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Enforcement Tools that Address Liability Concerns for Brownfields and Land Revitalization
EPA's Enforcement Office has developed a number of guidances and site-specific tools that address landowner liability concerns so that protective cleanups and revitalization can take place.
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Specifically, EPA developed enforcement discretion guidances that clarify potential liability and provide certainty and comfort to parties seeking to redevelop contaminated sites so that EPA is not involved in every contaminated property transaction.
EPA also developed site-specific tools to facilitate contaminated site transactions when perceived liability remains an obstacle and EPA involvement is critical.
These tools and guidance can be found on the Brownfields and Land Revitalization cleanup policy and guidance database or summarized in the Revitalization Handbook.
Tools available through different environmental statutes:
- Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly known as Superfund)
On this page:
- Comfort/status letters
- Bona Fide Prospective Purchaser (BFPP) doing work agreements
- Prospective purchaser agreements (PPAs) and prospective lease agreements (PLAs)
- Contiguous Property Owner (CPO) assurance letters and settlement agreements
- Windfall lien resolution agreements
- Resource Conservation and Recovery Act (RCRA) Corrective Action
- Underground Storage Tanks
Some properties may remain unused or underutilized because potential property owners, developers, and lenders are unsure of the properties' environmental status. The EPA may issue a comfort/status letter to help these interested parties better understand EPA's involvement, or likely involvement, at a potentially contaminated property through a comfort/status letter.
Although EPA tries to avoid involvement in private real estate actions, EPA is willing to provide a comfort/status letter in some situations when it will facilitate the cleanup and reuse of contaminated or potentially contaminated properties. A comfort/status letter may:
- Clarify the likelihood of EPA involvement at a property;
- Describe the cleanup progress at a Superfund or RCRA site;
- Identify the potentially applicable statutory provision or EPA policy (e.g., the Windfall Lien policy, revised tenants policy) toward a specific party or property; and/or
- Suggest reasonable steps that should be taken at a site.
If the EPA is not involved at the property, the letter may refer the party to the appropriate state agency. The Agency created model comfort/status letters, in some instances addressing specific topics, to respond to requests. Additional information on model comfort/status letters is available from the comfort letters category of the Superfund cleanup policy and guidance database.
In some circumstances, a prospective purchaser may want to perform cleanup work at a contaminated site which exceeds the "reasonable steps" they are required to take to maintain their bona fide prospective purchaser (BFPP) status.
To address potential liability concerns at these sites, EPA and the Department of Justice (DOJ) issued a CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser for use at a site of federal interest with a BFPP who intends to perform removal work at its property. The model provides a covenant not to sue for "existing contamination" and requires the person performing the removal work to reimburse EPA's oversight costs. Contribution protection is also provided.
Before the BFPP liability protection was available, EPA developed tools for prospective purchasers of contaminated property, including prospective purchaser agreements (PPAs) and prospective lessee agreements (PLAs). These are agreements between a liable party and EPA whereby EPA provides the party with liability relief in exchange for payment and/or cleanup work.
After the enactment of the 2002 Brownfields Amendments, EPA issued a policy on May 31, 2002, Bona Fide Prospective Purchasers and the New Amendments to CERCLA, which states that the BFPP protection made PPAs no longer necessary, in most cases, for a party to enjoy liability relief under Superfund as a present owner. EPA will consider entering into a PPA/PLA, in limited circumstances, such as:
- significant environmental benefits will be derived from the project in terms of cleanup;
- there will be reimbursement of EPA response costs, or a new use; and
- there is a significant need for a PPA in order to accomplish the project's goals.
Even though the 2002 Brownfields Amendments protect contiguous property owners (CPOs) from landowner liability, some landowners continue to have concerns about their liability, especially where EPA has conducted a response action on the neighboring contaminated property or on the CPO’s property.
While the 2002 amendments are self implementing, Congress, in order to provide further protection to CPO's authorized EPA, in its discretion, to offer assurance that no enforcement action will be brought against a CPO for contamination resulting as a cause of their neighbors actions, or to enter into a settlement agreement with the CPO, providing them with cost recovery or contribution protection from potentially responsible parties at the site.
Guidance on the appropriateness of an assurance letter or an agreement is found in EPA's Interim Enforcement Discretion Guidance Regarding Contiguous Property Owners (1/13/2004).
EPA also developed a Model CERCLA Section 107(q)(3) Contiguous Property Owner Assurance Letter (11/11/2009).
After cleanup work at a site is completed, EPA may have a "windfall lien" on the BFPP's property. The windfall lien equals the lesser of either: (1) the amount of the unrecovered cleanup costs incurred by EPA, or (2) the increase in fair market value at the property attributable to the Superfund cleanup.
Windfall liens arise only where there is federal involvement at a site. At the vast majority of contaminated sites, there is no federal involvement and, therefore, no windfall lien.
EPA's model windfall lien resolution document is used where EPA is likely to pursue a windfall lien and a BFPP wants to resolve any existing or potential windfall lien. The model document is available on the Agency's website as Attachment B to the Interim Enforcement Discretion Policy Concerning "Windfall Liens" Under Section 107(r) of CERCLA.