Enforcement

ER3 Enforcement and Compliance Incentives

EPA, through the Environmentally Responsible Redevelopment and Reuse (ER3) initiative, may provide enforcement and regulatory relief-related incentives when appropriate to developers and property owners who are willing to adopt sustainable development practices.

EPA has developed and successfully used a number of site-specific documents to ease liability concerns and help spur the redevelopment and reuse of contaminated sites. The documents, often referred to as “tools,” are described in the Enforcement Tools that Address Liability Concerns web page. Through ER3, EPA will explore the expanded use of these tools when there is a commitment from a developer or other party to implement sustainable development practices.

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Prospective Purchaser Agreements and Bona Fide Prospective Purchaser Work Agreements

Prior to enactment of the 2002 Brownfield Amendments, EPA used prospective purchaser agreements (PPAs) to clarify and settle the responsibilities and/or liabilities of a prospective purchaser to enable the reuse of contaminated properties.

In May 2002, EPA issued the Bona Fide Prospective Purchasers and the New Amendments to CERCLA ("May 2002 BFPP Policy") policy stating that, in most cases, the 2002 Brownfields Amendments make agreements that provide a covenant the to sue (prospective purchaser agreements or PPAs) from the federal government unnecessary.

EPA continues to believe that PPAs are no longer necessary in the vast majority of cases, because BFPPs may now purchase property with knowledge of contamination and not acquire Superfund liability as long as they meet certain BFPP criteria. In the May 2002 BFPP Policy, the Agency recognized that, in limited instances, the public interest would be served by entering into PPAs or some other form of agreement with purchasers of contaminated property.

EPA has subsequently developed a model "BFPP Doing Removal Work Agreement," (November 27, 2006) which responds to requests from parties who enjoy liability protections provided for bona fide prospective purchasers who will perform removal work at sites of federal interest that they own or intend to acquire, where EPA may advise on the extent of cleanup required and oversee the work, and where the removal work will exceed the "reasonable steps to prevent releases" obligation upon which their BFPP status depends.

Under existing EPA policy, a PPA may be appropriate if there are significant benefits to the community and the environment and a BFPP Work Agreement may not work – a criterion that may be met by an ER3 project. EPA will consider negotiating a PPA in those cases where a PPA would not necessarily be appropriate or necessary and where the entity incorporates ER3 principles and develops a property in a manner that results in environmentally responsible performance.

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Comfort Status Letters

EPA issues comfort status letters to provide EPA’s current knowledge of the existing environmental and regulatory status of a contaminated site targeted for redevelopment or reuse.

Generally, a comfort status letter is provided if:

  • it will facilitate the clean up and reuse of a contaminated property;
  • there is a realistic perception or probability of incurring Superfund liability; and
  • there is no other adequate mechanism available to address the party’s concerns.

If an entity commits to pursuing ER3, EPA will consider issuing a comfort letter even if the circumstances do not meet these general criteria, such as at a site with no realistic probability of incurring Superfund liability at the property.

EPA continues to look at broad range of enforcement tools which can provide liability relief and/or liability certainty to developers as well as other potential incentives from other Agency offices to help promote sustainable development.

Learn More: ER3 networks and partnerships

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