WASHINGTON, D.C. 20460
NOV 8 1935
-OFFICE OF
ENFORCEMENT AND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT:
FROM:
TO:
Policy on the Issuance
Steven A. He
Office of Enf<
brt/Status Letters
eistant Administrator
[ie£t/and Compliance Assurance"
Regional Counsels, Regions 1-10
Brownfields'Coordinators, Regions 1-10
Director, Office of Site Remediation and Restoration, Region I
Director, Emergency and Remedial Response Division, Region n
Director, Hazardous Waste Management Division, Regions in and DC
Director, Waste Management Division, Region IV
Director, Superfund Division, Regions V, VI, and VII
Assistant Regional Administrator, Office of Ecosystems Protection and
Remediation, Region VITI
Director, Environmental Cleanup Office, Region X
This memorandum transmits the Office of Enforcement and Compliance Assurance's
(OECA) Policy on the Issuance of Comfort/Status Letters. The attached policy contains four
sample comfort/status letters and a genera! policy regarding their use for parties interested in
brownfield cleanup and reuse. The sample letters are intended to address the most common
inquiries received by EPA regarding brownfield properties. The letters provide a party any
releasable information EPA has pertaining to a particular piece of property, what that
information means, and the likelihood or current plans EPA has to take Federal Superfund
" action. The "comfort" comes from knowing what EPA knows about the property and what
its intentions are in terms of a Superfund response. Comfort/status letters may be considered
when they may facilitate the cleanup and redevelopment of brownfields, where there is a
realistic perception or probability of incurring Superfund liability, and where there is no
other mechanism available to adequately address a party's concerns.
Additional information on this policy and appropriate use of comfort/status letters is
available from Elisabeth Freed at (202) 564-5117 or Lori Boughton at (202) 564-5106 in the
Office of Site Remediation Enforcement.
Attachment
Recycled/RscycUblo • Prtnled with Vegelable Olt Based Inks on 100% Recycled Paper (40% Poslconsumer)
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cc: Barry Breen, OSRE
Susan Bromm, OSRE
Linda Boomazian, OSRE
Sandra Connors, OSRE
Ken Patterson, OSRE
Greg Snyder, OSRE
Gwen Brown, OECA
Linda Garczynski, OSWER
Steve Lufh'g, OERR
Peter Rosenberg, OECA
m Karen Brown, AO
' Earl Salo, OGC
Bruce Gelber, DOJ
Lynne Jennings, Region I
Michael Mintzer, Region II
Heather Gray-Torres, Region III
Suzanne Bohan, Region VIII
David Ostrander, Region VIII
Mark Calhoon, Region Xt
Bill Keener, Region XI
Bob Roberts, OSRE
Katherine Dawes, OSPS
Karen Kraus, OGC
. Randy Hippen, OERR
Mike Fitzpatrick, OSW
Bob Brook, DOJ
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Policy on the Issuance of Comfort/Status Letters
I. Introduction
The Environmental Protection Agency ("EPA" or "Agency") defines brownfields as
abandoned, idled, or under-used industrial and commercial facilities where expansion or
redevelopment is complicated by real or perceived environmental contamination. A party
interested in brownfield property ("properties" or "sites") is concerned primarily with whether or
not the property has environmental contamination, and if it does, what are the potential
associated liabilities and costs of cleaning up existing contamination. Equipped with this
information, a party can make an informed decision regarding the purchase and/or development
of the brownfield property. • -
EPA hopes to provide a measure of "comfort" by helping an interested party to better
understand the potential for or actual EPA involvement at a brownfield property. This policy
describes the most common situations about which parties inquire and the type of information or
comfort EPA may provide to parties to assist them in assessing the probability of incurring
liability under the Comprehensive Environmental Response, Compensation, and Liability Act
("CERCLA" or "Superfund"). It is not EPA's intention to become involved in typical private
real estate transactions. Rather, EPA intends to limit the use of such comfort to where it may
facilitate the cleanup and redevelopment of brownfields, where there is the realistic.perception or
probability of incurring Superfund liability, and where there is no other mechanism available to
adequately address the party's concerns. The policy contains four sample comfort/status letters
which address the most common inquiries for information that EPA receives regarding
contaminated or potentially contaminated properties.
II. Background
On January 25,1995, EPA announced its Brownfields Action Agenda which outlined the
Agency's activities and plans to encourage and facilitate the cleanup and reuse of brownfields.
As part of this Agenda, the Office of Site Remediation Enforcement ("OSRE") focused on the
identification of barriers to cleanup and reuse posed by federal environmental liability. In
particular, OSRE concentrated its efforts on the liability barriers posed by Superfund's
requirements to identify, assess, and cleanup the nation's high priority hazardous waste sites.
Uncertainty about potential contamination and/or Superfund liability may prevent
otherwise interested parties from purchasing or redeveloping brownfields. To allay the fear of
potential federal pursuit of parties for cleanup of brownfields, EPA may provide varying degrees
of comfort by communicating EPA's intentions toward a particular piece of property. Comfort
may range from a formal legal agreement containing a covenant not to sue which releases a party
from liability for cleanup of existing contamination to Agency policy statements regarding the
exercise of EPA's enforcement discretion as it relates to specific site circumstances or activities
of a party.
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Policy on the Issuance of Comfort/Status Letters
HI. Policy Statement
This policy is designed primarily to assist parties who seek to cleanup and reuse
brownfields. EPA headquarters and regional offices often receive requests from parties for some
level of comfort that if they purchase, develop, or operate on brownfield property, EPA will not
pursue them for the costs to clean up any contamination resulting from the previous use.1 EPA
believes that the majority of the concerns raised by these parties can be addressed through the
dissemination of information known by EPA about a specific property and an explanation of
what the information means to EPA. While the sample comfort/status letters do not account for
every possible situation, EPA believes that the letters contained in this policy will address the
most common requests for comfort. Facts and circumstances, however, will vary and
information may be disseminated through different means including other written
communication, public or individual meetings, or reference to public information repositories
and EPA databases.
Comfort/status letters are provided solely for informational purposes and relate only to
EPA's intent to exercise its response and enforcement authorities under Superfund at a property
based upon the information presently known to EPA. EPA encourages the release of as much
information as possible to enable the party to better understand the potential applicability of
CERCLA to individual parcels of property and make informed decisions. For example, EPA
may need to take Superfund action at the property if conditions at the property change, or if new
information becomes available indicating that present conditions warrant a Superfund response.
With the exception of sharing information already contained in EPA's files, the letters generally
are not intended to express EPA's opinion as to possible contamination or extent of
contamination at the property or provide any information on obligations associated with
ownership or operation of the site. Additionally, the letters are not intended to limit or affect
EPA's authority under CERCLA or any other law or provide a release from CERCLA liability.
Upon receiving a request from an interested party for information about their
circumstances, regional offices may issue comfort/status letters,^ at their discretion, when there is
a realistic perception or probability of incurring Superfund liability and such comfort will
facilitate the cleanup and redevelopment of a brownfield property, and there is no other
mechanism available to adequately address the party's concerns. EPA believes that these
comfort/status letters are not necessary or appropriate for typical real estate transactions. With
the information provided by EPA, the party inquiring about the property can decide whether the
risk of EPA action is enough to forego involvement, whether to proceed as planned, whether
additional investigation into site conditions is necessary, or whether further information from
EPA or other agencies is needed. This policy is not intended to supersede EPA's "Policy
The terms "purchase" and "operate" also may refer to lessees.
2
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Policy on the Issuance of Comfort/Status Letters
Against No Action Assurances."2 Because these letters do not provide assurance of no action,
approval of the Assistant Administrator of the Office of Enforcement and Compliance Assurance
is not required.
EPA has developed four sample comfort/status letters to address the most common
inquiries received regarding brownfield properties. The letters are structured with opening and
closing paragraphs applicable to all scenarios falling under that category of letter. Regions may
then choose and combine the applicable substantive paragraphs to tailor the sample letter to
address a party's particular request. Directions also are found within the description of the
letters and within the body of each letter. A brief summary of the sample letters is found below.
• 1) A "No Previous Federal Superfund Interest Letter" may be provided to parties
when there is no historical evidence of federal Superfund program involvement
with the property/site in question (i.e., site is not found in the CERCLA
information system database, also known as the Comprehensive Environmental
Response, Compensation, and Liability Information System or "CERCLIS");
2) A "No Current Federal Superfund Interest Letter" may be provided when the
property/site either has been archived and is no longer part of the CERCLIS
inventory of sites, has been deleted from the National Priorities List ("NPL"), or
is situated near, but not within, the defined boundaries of a CERCLIS site;
• 3) A "Federal Interest Letter" may be provided at sites where EPA either pians to
respond in some manner or already is responding at the site. This letter is
intended to inform the recipient of the status of EPA's involvement at the
property. Additionally, language is included to respond to requests regarding the
applicability of Agency Superfund policy, regulation or CERCLA statutory
provision to a party or particular set of circumstances; and,
• 4) A "State Action Letter" may be provided when the state has the lead for day-
to-day activities and oversight of a response action (e.g., deferred sites.)
2The Agency's "Policy Against No Action Assurances" issued November 16, I9S4,
reaffirms EPA's policy against giving definitive assurances outside the context of a formal
enforcement proceeding that EPA will not proceed with a particular enforcement response.
Consistent with that policy, EPA may only provide site-specific, no action assurances with the
approval of the Assistant Administrator of the Office of Enforcement and Compliance
Assurance.
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Policy on the Issuance of Comfort/Status Letters
Sample letters are appended to this policy as Appendix A. The relationship between the
sample letters is depicted in the table in Appendix B. Regions are encouraged to tailor the letters
to fit region-specific protocols or site-specific conditions.
IV. Sample Comfort/Status Letters
• No Previous Superfund Interest Letter - This letter introduces and explains the purpose of
CERCLIS and may be sent when the property described by the interested party is not located in
active or archived CERCLIS records. The purpose of the letter is to inform the recipient that, to
the best of EPA's knowledge, the property described in the request has never been addressed
under EPA's Superfund program, nor are there current plans to do so. Regions, generally,
should not interpret a request for a No Previous Superfund Interest Letter as notification that the
site should be entered into CERCLIS.
Because EPA does not have any information about the property, the letter does not
express any opinion as to possible contamination at the property or appropriate usage of the
property. Additionally, EPA is not in a position to determine what obligations are associated
with ownership or operation of the property under any present or future environmental or other
federal, state or local statute, regulation or principle of common law. The interested party is
encouraged to contact the appropriate state agency for further information regarding the state's
intention toward the property. Regions are encouraged to check with other program offices to
determine whether any enforcement action is planned or ongoing and, if so, coordinate within
their region before deciding how and when to respond to the inquiry.
• No Current Superfund Interest Letter - The No Current Superfund Interest Letter is intended
for properties a) that have been archived and removed from the CERCLIS inventory of
Superfund sites; b) where either all or part of the NPL site has been deleted following EPA's
deletion policies ("Deletion from the NPL" 40 CFR 300.425(e) or "Partial Deletion of Sites
Listed on the National Priorities List" published in the Federal Register on November 1, 1995,
60 FR 55466); or, c) situated in the vicinity of but currently not considered part of the CERCLIS
site (e.g., is adjacent to the site). The purpose of the letter is to let the recipient know that EPA's
Superfund program does not anticipate taking any/additional response action (which could
include enforcement action if the Potentially Responsible Party ("PRP") search and/or cost
recovery has been completed), and the basis for its decision. The letter also refers the party to
additional sources of information such as EPA's administrative record and the appropriate state
agency.
The No Current Superfund Interest Letter is divided into three sections. Section I
addresses archived properties and describes the conditions under which EPA archives a site,
EPA's policy towards these sites, and the circumstances under which EPA would revisit an
archived site. EPA archives a site when the site assessment event, removal event, or
enforcement activity has been completed. EPA will archive a site if a) no contamination was
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Policy on the Issuance of Comfort/Status Letters
found at the site; b) the site, while contaminated, neither met the criteria for inclusion on the
NPL nor required any EPA response action; or, c) contamination was removed quickly without
the need to place the site on the NPL; and d) EPA has completed its cost recovery action for the
site. CERCLIS is updated to reflect the archiving of the property. Regions should select one of
the appropriate reasons, as described here and in the sample letter, for the decision to archive the
property and add it to the opening and closing paragraphs (see letter for additional instructions.)
This section of the letter provides comfort by conveying that EPA's expectation, based upon
current information, is not to take further steps to list the site on the NPL or to take any other
CERCLA response action.
Section E of the letter focuses on sites deleted from the NPL and properties located in the
vicinity of a CERCLIS site. Paragraphs (a) and (b) of Section n addresses inquiries regarding
full or partial deletions of NPL sites and is appropriate if I) the portion of the Superfund site is
marked for deletion in CERCLIS and the state concurs with EPA's decision to delete the
portion of the site or 2) after consultation with the state and a thirty day public comment period,
the entire site is marked for deletion in CERCLIS. (Refer to the sample letter for specific
directions). A site or portion of a site is deleted from the NPL when "no further response is
appropriate" (see 40 CFR 300.425(e)). No further response is appropriate when responsible
parties or EPA has completed all response actions, or when a remedial investigation shows "no
significant threat." Either EPA or a petition from any person may initiate the deletion process.
Paragraph (c) of Section H addresses a property that is in the vicinity of a CERCLIS site
but currently is not affected by the release of hazardous substances (e.g., a site may be known as
the Jones Industrial Park but the release affects only a portion of the industrial park property).
Paragraph (c) is appropriate when EPA has sufficient information regarding the level and extent
of contamination at a site to determine that the property is not part of the release. When a site is
listed in CERCLIS, EPA generally delineates the release of hazardous substances as a
geographical area and defines the site by reference to that area. Thus, the actual release is not
limited to that property but either may extend beyond the property due to contaminant migration
or may not occupy the full extent of the property.
Section HI provides language when EPA has compiled an Administrative Record for the
site. If the regional office has compiled an Administrative Record for the site, please add
Section III to any of the above-mentioned scenarios.
Under the situations addressed in this letter, EPA is not in a position to provide any
opinion on the appropriate use of the property or obligations associated with ownership or
operation of the property under any present or future environmental or other federal law or
regulation or principle of common law. The letter.recommends that the interested party to
contact the appropriate state agency for further information regarding the state's intention toward
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Policy on the Issuance of Comfort/Status Letters
the property. Before sending this letter, regions are encouraged to check with other program
offices to determine whether any enforcement action is planned or ongoing and, if so, coordinate
with the appropriate regional program offices before deciding how and when to respond to the
inquiry.
• Federal Superfund Interest Letter - When a site is in the Superfund evaluation or response .
phase, the most important assistance EPA can provide an interested party may be information
about current Superfund activities. When the site is found in CERCLIS site inventory, a regional
office may issue a Federal Interest Letter to explain what actions have been taken by EPA
toward the remediation of a particular site (e.g., site sampling, removal action). The letter also
may indicate whether EPA anticipates further action at a site and the type of action anticipated.
In addition to the opening paragraph, there are four parts to the Federal Interest Letter. Section I
of the letter provides the recipient with the status of the properly—whether the property is or may
be part of CERCLIS/NPL site. Section JQ describes EPA's planned or ongoing activities (e.g.,
preliminary assessment, removal, or remedial design). Federal Interest Letters may be
considered for sites in the CERCLIS site inventory, including those on the NPL or eligible for
the NPL, sites undergoing a federal EPA removal action, undergoing federal EPA remedial
action, or where EPA has incurred or will incur response costs.
*
Section HI of the Federal Interest Letter provides language regarding the application of
an EPA Superfund policy, CERCLA statutory provision or regulation to a parry's particular set
of circumstances. As stated in the policy and of particular importance to Section III of the
Federal Interest Letter is the limitation on issuing comfort/status letters to situations where the
requesting party provides information showing that 1) a project found to be in the public interest
(e.g., an economic redevelopment project) is hindered or the value of a property is affected by
the potential for Superfund liability, and 2) there is no other mechanism available to adequately
address the party's concerns other than a letter from EPA with a statement regarding the
applicability of a specific Superfund policy, statutory provision or regulation. These criteria
should be met before a region considers sending the party a Federal Interest Letter. In response
to such requests, regions should evaluate the information provided and respond, as appropriate,
with Section III of the Federal Interest Letter attaching a copy of the relevant policy or
statutory/regulatory language to the letter.
Section IV provides language for the closing paragraph appropriate for all sections of the
letter. This section of the letter also encourages the region to include pertinent fact sheets (or
any other relevant information) and refers the party to the administrative record repository.
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Policy on the Issuance of Comfort/Status Letters
• State Action Letter - The State Action Letter is intended to provide comfort at sites where
EPA may have either no current Superfund involvement or a secondary role under the state's (or
territory, commonwealth or tribe) lead of site activities. A state may participate in such activities
as lead agency through a cooperative agreement ("CA") between the state and region. A state
and region also may develop a Memorandum of Agreement ("MO A") in which the region and
the state articulate the roles each will have regarding the cleanup of contaminated properties.
The State Action Letter seeks to advise parties that EPA does not intend to take federal
action under CERCLA when the state has the primary role of overseeing cleanups pursuant to
either state or federal requirements and, where appropriate, the parties performing the cleanup
are working cooperatively under state direction. EPA, however, may consider taking action at a
site if it receives new information about site conditions requiring federal action or the responding
party and the state are unwilling or unable to ensure compliance with the negotiated agreement
between the state and responding party or the state and EPA.
i
Regions may respond with a State Action Letter to two different types of inquiries. The
first type of inquiry may be from a state requesting that EPA send a State Action Letter
regarding a particular site. Whenever possible and appropriate, regions should seek to provide a
letter responsive to the state's request. The second type of inquiry may be from an outside party.
The region should prepare a State Action Letter for that party in consultation with the state, if
appropriate.
The State Action Letter is appropriate to send to parties in the following situations: (a)
the site is designated "state-lead" in CERCLIS; (b) the site is designated "deferred to state" in
CERCLIS (see "Guidance on Deferral of NPL Listing Determinations While States Oversee
Response Actions," OSWER Dir. 9375.6-11, May 3,1995); (c) the site was designated "deferred
to state" and is subsequently designated "archived" in CERCLIS; or, (d) the site listed in
CERCLIS and is being addressed under a state voluntary cleanup program ("VCP") pursuant to
an approved MOA between the region and state. For sites not listed in CERCLIS, but that are
located in a state that has entered into a VCP MOA with the region (and the region believes that
the site is being addressed pursuant to the state's VCP), the region should issue a No Previous
Federal Interest Letter.
IV. Use of this Policy
This policy is not a rule, and does not create any legal obligations. The extent to which
EPA applies the policy will depend on the facts of each case. For further information concerning
this policy or sample letters, please contact Elisabeth Freed at (202) 564-5117 or Lori Boughton
at (202) 564-5106 in the Office of Site Remediation Enforcement.
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Policy on the Issuance of Comfort/Status Letters
Appendix A
Sample No Previous Super-fund Interest Letter
Addressee
.•
Re: [Insert name or description of property/site]
Dear [Insert name of party]:
I am writing in response to your letter dated -/--/— concerning the property referenced
above. My response is based upon the facts presently known to the U.S. Environmental
Protection Agency ("EPA") and is provided solely for informational purposes.
The federal Superfuhd Program, established to cleanup hazardous waste sites, is
administered by EPA in cooperation with individual states and local and tribal governments.
Sites are discovered by citizens, businesses, and local, state or federal agencies. When a
potential hazardous waste site is reported, EPA records the available information in its database,
the Comprehensive Environmental Response, Compensation, and Liability Information System
("CERCLIS"). (NOTE: if a region practices pre-CERCLIS screening procedures, please
include language indicating that the procedures exists, whether or not the property is in the
process of being "pre-screened", and what this means to the inquirer. Adjustments may be
needed to the sample language contained in this letter.] The fact that a site is listed in
CERCLIS, however, does not mean that an EPA response action will occur at the site or that
ownership or.operation of the site is restricted or may be associated with liability. The fact that
a property is not listed in CERCLIS does mean that EPA is not currently planning to take
any action under the federal Superfund program to evaluate the site for inclusion on the
National Priorities List (NPL) or to conduct removal or remediation activities,
The above-referenced property was not identified in a search of the active and archived
records in the CERCLIS database. Please note that its absence from CERCLIS does not
represent a finding that there are no environmental conditions at this property that require action
or that are being addressed under another federal or state program. The absence of the property
from CERCLIS means that, at this time, EPA is not aware of any information indicating that
there has been a release or threat of release of hazardous substances at or from the facility that
needs to be assessed by the federal Superfund program and that no such assessment has been
performed by EPA in the past. I encourage you to contact [insert name of state or local agency]
to determine if they have information regarding the property and its environmental condition.
[Regions also are encouraged to check with other program offices to determine whether
EPA is addressing this site under another statute such as RCRA].
If you would like more comprehensive information on current or historical CERCLIS
data or to request an additional search, please contact the National Technical Information Service
("NTIS"), a publishing clearinghouse for government information. The address is: U.S.
Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161 (telephone: (703) 487-
4650; fax: (703) 321-8547.) CERCLIS information is also available on the Internet at
http:\\www.epa.gov\superfund\index.htrnl#Products. Should you have any further questions '
about Superfund, please feel free to contact me at [insert phone number/address.]
Sincerely,
Regional Contact
cc: State contact
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Policy on the Issuance of Comfort/Status Letters
Sample No Current Superfund Interest Letter
Addressee
Re: [Insert name or description of property]
Dear [Insert name of party]:
I am writing in response to your letter dated -/--/— concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmental
Protection Agency ("EPA") and is provided solely for informational purposes. For the reasons
stated below, EPA does not presently contemplate additional Superfund action for this property.
In response to growing concern over health and environmental risks posed by hazardous
waste sites, Congress enacted the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (" CERCLA"), establishing the Superfund program to clean
up these sites. The Superfund program is implemented by EPA in cooperation with individual
states and local and tribal governments. Sites are discovered by citizens, businesses, and local,
state, or federal agencies. After a potential hazardous waste site is reported to EPA, the available
information is recorded in the Comprehensive Environmental Response and Liability
Information System ("CERCLIS"), EPA's data management system for Superfund. Sites are
added to CERCLIS when EPA believes that there may be contamination that warrants action
under Superfund.
I. [FOR ARCHIVED SITES]
If, after an initial investigation, EPA determines that the contamination does not warrant
Superfund action, or if an appropriate Superfund response action has been completed, EPA will
archive that site from CERCLIS. This means that EPA believes no further federal response is
appropriate. Archived sites may be returned to the CERCLIS site inventor)' if new information
necessitating further Superfund consideration is discovered.
EPA has archived the above-referenced property from the CERCLIS site inventory because
[choose one of the following (a, b, or c) to complete the sentence]
{a.] .following site evaluation activities, EPA determined that either no contamination was found
or conditions at the property did not warrant further federal Superfund involvement.
[b.] a federal removal action was completed and no further Superfund action is planned for this
property.
[c.[ environmental conditions at the property are subject to requirements of [RCRA, UST,
OPA, etc.], however, no further interest under the federal Superfund program is warranted. For
further information concerning these requirements, please contact [name and telephone
number].
[Add to previous sentence] EPA, therefore, anticipates no need to take additional Superfund
enforcement, investigatory, cost recovery, or cleanup action at this archived site unless new
information warranting further Superfund consideration or conditions not previously known to
EPA regarding the site arc discovered. EPA will maintain a dialogue with the states and will
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Policy on the Issuance of Comfort/Status Letters
continue to refer archived sites to the states for their review and consideration. You may want to
contact [insert state contact, address and telephone number] for further information.
H. [FOR PARTIAL OR FULL DELETIONS FROM NPL OR FOR A SITE BOUNDARY
SITUATION!
CERCLIS does not describe sites in precise geographical terms primarily because the
boundaries of the contamination and available information on those boundaries can be expected
to change over time. Once enough information regarding the nature and extent of the release of
the hazardous substances is gathered, EPA can more accurately delineate the boundaries of a
site. [Choose either (a), (b) or (c)J.
(a) [If the property was included in a partial deletion from the NPL]
The above-referenced property [is/appears to be] situated within the [name of NPL site]
which is included on EPA's list of high priority hazardous waste CERCLIS sites known as the
National Priorities List ("NPL"). EPA, however, has determined that no further investigatory or
cleanup action is appropriate at the property under the federal Superfund program. With the
[insert State Agency] concurrence, EPA has decided to delete the portion of the NPL site which
contains the above-referenced property in accordance with the Agency's "Procedures for Partial
Deletions at NPL Sites" (OERR Directive Number 9320.2-11, August 30, 1996).
(b) [If the property is contained within the NPL site or is defined as the NPL site and the
site has been deleted from the NPL]
The identified property [is/appears to be] [select one: situated within the defined
geographical borders of the [name of NPL site] or defined as the [name of the NPL site]]
which is included on EPA's list of high priority hazardous waste CERCLIS sites known as the
National Priorities List ("NPL"). EPA, however, has determined that no further investigatory or
cleanup action is appropriate at the property. In consultation with the [insert State Agency],
EPA has decided to delete this property from the NPL in accordance with "Deletion from the
NPL"40CFR300.425(e).
(c) [If the property is not part of the CERCLIS site but is nearby]
The above-referenced property is located [near or adjacent to] the [name of CERCLIS
Site]. At this time, [statement as to the status of the site at present time: e.g., preliminary
assessment, site investigation, removal, remedial investigation or feasibility study is
underway or is completed]. Based upon available information, the property is not presently
considered by EPA to be a part of the [name of the CERCLIS site).
[Add to end of paragraph (a), (b), or (c)]
EPA, therefore, anticipates no need to take [any/additional] [Superfund enforcement--
include if PRP search and cost recovery are complete] investigatory or cleanup action at this
property unless new information warranting further Superfund consideration or conditions not
previously known to EPA regarding the property are discovered. You may want to contact
[insert state agency information] for further information. [If appropriate, enclose a copy of
the fact sheet on the CERCLIS site].
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Policy on the Issuance of Comfort/Status Letters
III. [IF ADMINISTRATIVE RECORD HAS BEEN COMPILED]
EPA has compiled an administrative record for the [name of CERCLIS or NPL Site]
which provides information on the nature and extent of the contamination found at the site. This
record is available at EPA Region — and at [location nearby to the site].
If you have any additional questions, or wish to discuss this information, please feel free
to contact [insert EPA contact and address].
Sincerely yours,
Regional Contact
cc: State contact
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Policy on the Issuance of Comfort/Status Letters
Sample Federal Superfund Interest Letter
Addressee
Re: [insert name or description of property/site]
Dear [Insert name of party]:
I am writing in response to your letter dated --/—/— concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmental
Protection Agency ("EPA") and is provided solely for informational purposes.
In response to growing concern over health and environmental risks posed by hazardous
waste sites, Congress passed the Comprehensive Environmental Response Compensation and
Liability Act ("CERCLA") and established the Superfund program to clean up these sites. The
Superfund program is implemented by EPA in cooperation with individual states and local and
tribal governments. Sites are discovered by citizens, businesses, and local, state and federal
agencies. After a potential hazardous waste site is reported to EPA, the site-specific information
is recorded in the Superfund database, the Comprehensive Environmental Response and Liability
Information System ("CERCLIS"). Sites are added to CERCLIS when EPA believes that there
may be contamination that warrants action under Superfund.
EPA initially screens a potential hazardous waste site to determine what type of action, if
any, is necessary. The Superfund program may then perform a preliminary assessment and site
investigation to determine whether contamination at a property is likely to require a federal
cleanup response, an evaluation to determine if a short term response action to eliminate or
reduce contamination is needed, and add the site to EPA's list of high priority hazardous waste
sites known as the National Priorities List ("NPL").
EPA is examining [and/or addressing] the property referenced above in connection with
the [insert name of CERCLIS/NPL site] under the authority of CERCLA. [Insert appropriate
paragraphs from Sections I and/or II below. Use III for requests regarding the
applicability of a specific policy. Section IV represents the closing paragraph for all the
Federal Superfund Interest letters].
I. STATUS OF THE IDENTIFIED PROPERTY:
a. The above-referenced property is presently part of [or is] the [insert name of
site.] [Add paragraph from Section II for further information concerning the
site.]
b. The above-referenced property may be part of the [insert name of site.] [Add
paragraph from Section II for further information concerning the site.]
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Policy on the Issuance Of Comfort/Status Letters
H. STATUS OF EPA ACTIVITIES
a. The site has been placed in the Comprehensive Environmental Response,
Compensation and Liability Information System ("CERCLIS") site inventory, but
no studies or investigations have been performed to date. Accordingly, EPA has
not developed sufficient information relating to the nature and extent of
contamination to presently determine whether further federal action is appropriate
under Superfund. Additionally, EPA has not yet determined which properties
may be considered part of the site.
b. A Superfund site evaluation is planned at the [insert name of site) to investigate
possible contamination, and where it may be located. Accordingly, EPA has not
yet determined which properties may be considered part of the [insert name of
site.] [Add description of site evaluation activity or attach relevant
documents, if available.]
c. A Superfund site evaluation activity is underway at the (insert name of site] to
investigate possible contamination, and where it may be located. Accordingly,
EPA has not yet determined which properties may be considered part of the
[insert name of site.] [Add description of site evaluation activity or attach
relevant documents, if available.]
d. The [insert name of site] has been proposed to [or placed on] the Superfund
National Priorities List ("NPL"). [Refer to and/or attach Federal Register
notice.] The description of [insert name of site] contains EPA's preliminary
evaluation of which properties are affected, although the actual borders of the
Superfund site could change based on further information regarding the extent of
contamination and appropriate remedy.
e. A Superfund Remedial Investigation/Feasibility Study ("RI/FS") is planned at
[insert name of site.] [Add description of RI/FS and ensuing activities or
attach relevant documents, if available].
f. A Superfund Remedial Investigation/Feasibility Study ("RI/FS") is underway at
[insert name of site.) [Add description of RI/FS and ensuing activities or
attach relevant documents, if available].
g. A Superfund Remedial Investigation/Feasibility Study ("RI/FS") has been
completed at [insert name of site.] [Add description of RI/FS and ensuing
activities or attach relevant documents, if available].
h. EPA is planning a Superfund Remedial Design/Remedial Action ("RD/RA") at
[insert name of site.) [Insert pertinent information such as a description of
the ROD and RD/RA, such as date of issuance of the ROD, schedule for
cleanup; Fund lead or PRP implementation, cleanup progress to date; a
schedule for future cleanup, especially a final completion date, cleanup levels
to be achieved, and anticipated future land use of the Site, or attach relevant
informational documents].
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Policy on the Issuance of Comfort/Status Letters
i. EPA has commenced a Superfund Remedial Design/Remedial Action ("RD/RA")
at [insert name of site.] [Insert pertinent information such as a description of
the ROD and RD/RA, such as date of issuance of the ROD, schedule for
cleanup; Fund lead or PRP implementation, cleanup progress to date; a
schedule for future cleanup, especially a final completion date, cleanup levels
to be achieved, and anticipated future land use of the Site, or attach relevant
informational documents].
j. Superfund Remedial Design/Remedial Action ("RD/RA") has been completed at
insert name of site.] [If possible provide information on cleanup
achievements, whether it was PRP or Fund-lead, etc., or attach relevant
informational documents, if available] A Five-year Review will [will not] be
necessary at [insert name of site.] [ Also, describe status with respect to
deletion from the NPL.]
k. A removal action is planned at [insert name of site.] [provide information on
cleanup achievements, whether it was PRP or Fund-lead, and contact
number for On-Scene Coordinator, cost recovery staff, or ORC attorney, or
attach relevant informational documents, if available.]
1. A removal action is ongoing at [insert name of site.] [provide information on
cleanup achievements, whether it was PRP or Fund-lead, and contact
number for On-Scene Coordinator, cost recovery staff, or ORC attorney, or
attach relevant informational documents, if available.]
m. A removal action has been completed at [insert name of site.] [provide
information on cleanup achievements, whether it was PRP or Fund-lead, and
contact number for On-Scene Coordinator, cost recovery staff, or ORC
attorney, or attach relevant informational documents, if available.]
III. FOR PARTIES OR SITES COVERED BY AN EPA
POLICY/STATUTE/REGULATION
Dear [Insert name of party]:
I am writing in response to your letter dated —I—I— concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmental
Protection Agency ("EPA").
As you may know, the above-referenced property is located within or near the [insert
name of CERCLIS site.] EPA is currently taking [insert description of any action that EPA
is taking or plans to take and any contamination problem.]
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Policy on the Issuance of Comfort/Status Letters
[Choose either paragraph [aj or [b]]:
[a. For situations when a party provides information showing that 1) a project found to be
in the public interest is hindered or the value of a property is affected by the potential for
Superfund liability, and 2) there is no other mechanism available to adequately address the
party's concerns]
The [insert policy citation/statutory/regulatory provision], provides that EPA, in an
exercise of its enforcement discretion, will not take an enforcement action against parties who
meet the conditions and criteria described in the [insert policy/starute/regulation]. Based upon
the information currently available to EPA, EPA believes that the [policy/statutory/regulatory
provision] applies to [you/your] situation. I am enclosing a copy of the [policy/statutory or
regulatory provision and fact sheet, if appropriate] for your review.
[b. For situations when a party does not provide information showing that 1) a project
found to be in the public interest is hindered or the value of a property is affected by the
potential for Superfund liability, and 2) there is no other mechanism available to
adequately address the party's concerns, attach the appropriate policy/statutory or
regulatory language and insert the following language]:
The [insert policy citation/statutory/regulatory provision], provides that EPA, in an
exercise of its enforcement discretion, will not take an enforcement action against parties who
meet the conditions and criteria described in the [insert policy/statute/regulation]. [EPA
currently does not have enough information available to determine whether the [insert
policy/statutory/regulatory citation] applies to your situation OR EPA, based upon the
current information available, believes that you/your circumstances do not meet the
criteria/provisions of the [policy/statute/regulation]. I, however, have enclosed a copy of the
[policy/statutory or regulatory language] for your own review and determination of its
applicability to you [or your situation].
FV. CLOSING PARAGRAPH
EPA hopes that the above information is useful to you. [Optional—In addition, we have
included a copy of our latest fact sheet for the (insert name of site.)] Further, we direct your
attention to the [insert location of site local records repository] at which EPA has placed a
copy of the Administrative Record for this site. [Include for section C letters only: This letter
is provided solely for informational purposes and does not provide a release from
CERCLA liability.] If you have any questions, or wish to discuss this letter, please feel free to
contact [insert EPA contact and address],
Sincerely,
V
Regional Contact
Enclosure
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Policy on the Issuance of Comfort/Status Letters
Sample State Action Letter
Addressee
Re: [Insert name or description of site/property]
Dear [Insert name of part)*]:
I am writing in response to your letter dated --/--/-- concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmental
Protection Agency ("EPA") and is provided solely for informational purposes.
The problem of investigating, responding to, and cleaning property contaminated by
hazardous substances is a complex one. In an effort to maximize resources and ensure timely
responses, EPA and the states work together in responding to properties posing threats of
environmental contamination. Although the Comprehensive Environmental Response
Compensation and Liability Act ("CERCLA", also known as "Superfund") is a federal law that
establishes a federal program, the" law also envisions and provides for state involvement at sites
handled under the Superfund program. CERCLA explicitly describes scenarios under which a
state may have a significant and prominent role in site activities.
I. [INSERT THIS SECTION FOR SITES DESIGNATED STATE-LEAD IN CERCLIS]
The site about which you have inquired, [site name], is a site that falls under the federal
Superfund program, but has been designated a state-lead. A state-lead designation means that
although the site remains in EPA's inventory of sites and may be on EPA's list of highest
priority sites, the National Priorities List ("NPL"). implementing responsibilities to investigate
and cleanup that site rest with the state of [insert name of state]. Specifically, [insert name of
state] is responsible for the day-to-day activities at the site and will ultimately recommend the
cleanup for the site. EPA's role is to. review some of [insert name of state]'s milestone'
documents, if appropriate, provide technical assistance if needed, and, in most cases, approve the
final cleanup method recommended by the state. The state and EPA work together closely,
pursuant to the terms of a Memorandum of Agreement ("MOA") to ensure that site responses are
conducted in a timely manner and that interested parties are included in site activities.
Because EPA's day-to-day role at the [insert name of site] is somewhat limited, you
should check with the [your state or state's environmental program] for more detailed
information on site activities, [insert name of state] is best able to provide you with detailed
information about the site and public documents regarding site activity. [Regions should
include the state RPM name and number, or at least the state's applicable department
name and number].
II. [INSERT THIS SECTION FOR SITES DESIGNATED "DEFERRED TO STATE
AUTHORITIES" PURSUANT TO EPA'S SUPERFUND DEFERRAL POLICY]
The site about which you have inquired, [site name], is a site that falls under the federal
Superfund program, but for which EPA does not have the day-to-day responsibility.
Specifically, the [site name] site is not proposed for or listed on the NPL. EPA has agreed not to
propose or list the [site name] site on the NPL while the stale of [name of state] addresses the
environmental conditions at the property under its own state authorities. While the [site name]
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Policy on the Issuance of Comfort/Status Letters
cleanup is being conducted, EPA intends to act in accordance with "Guidance on Deferral of
NPL Listing Determinations While States Oversee Response Actions" (OSWER Dir. 9375:6-11,
May 3, 1995). A copy of this guidance is enclosed for your review and should help you to better
understand EPA's rote and intentions at sites for which activities are deferred to state authorities.
in. [INSERT FOR A SITE DESIGNATED 'DEFERRED" THAT NOW HAS BEEN
ARCHIVED]
The conditions at the above-referenced property were addressed by [name of state]
pursuant to EPA's "Guidance on Deferral of NPL Listing Determinations While States Oversee
Response Actions" (OSWER Dir. 9375.6-11, May 3,1995). Upon completion of cleanup
activities at the [site name], the property has been removed from EPA's inventory of hazardous
waste sites, the Comprehensive Environmental Response, Compensation, and Liability
Information System ("CERCLIS"). Consistent with EPA's state deferral guidance, EPA does
not intend to further consider the property for listing on the NPL [or to take additional
Superfund enforcement, investigatory, cost recovery, or clean up action at the property]
unless EPA receives new information about site conditions that warrants reconsideration.
A copy of EPA's "Guidance on Deferral of NPL Listing Determinations While States
Oversee Response Actions" is enclosed for your review, so that you may better understand the
nature of EPA's role at the [site name]. For detailed information about sit'e activities and
conditions, you may wish to contact [insert name of state or state's environmental
department], the agency responsible for overseeing activities on the property.
IV. [INSERT FOR A SITE ADDRESSED UNDER A STATE VCP THAT HAS AN MOA
IN PLACE]
The site about which you have inquired, [site name], is a site contained in EPA's
inventory of hazardous waste sites, the Comprehensive Environmental Response, Compensation,
and Liability Information System. The [site name] site is not, however, proposed for or listed
on EPA's list of highest priority sites, the National Priorities List ("NPL"). EPA and the state of
[insert name of state) have agreed, pursuant to a memorandum of agreement (I:MOA") between
the two agencies, to place the site under the authorities of [insert name of state]'s Voluntary
Cleanup Program. For specific details regarding the activities at [site namej or the MOA, you
may wish to contact the [state name or department responsible for implementing the MOA].
If you have any additional questions, or wish to discuss this information, please feel free
to contact [insert EPA contact and address).
Sincerely yours, •
Regional Contact
cc: State contact
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AlTliNUlXlJ
Use of Comfort Letters
Each of the sample comfort letters is intended to address a particular set of circumstances and provide whatever information is
contained within EPA's databases. The sample letters do not address every possible scenario, but are based on the most commonly
asked questions. To differentiate between the purposes of the letters and understand the relationship between them, the table below
provides guidance on which letter to use to answer .a request for information.
Question to be Answered
Is the site or property listed in CERCLIS?
Has the site been archived from CERCLIS?
Is the site or property contained (or undetermined)
within the defined boundaries of a CERCLIS site?
Has the site or property been addressed by EPA
and 'deleted from the defined site boundary?
Is the site or property being addressed by a state
voluntary cleanup program?
Is EPA planning or currently performing a
response action at the site?
Is the parry asking whether or asserting that the
conditions at the site or activities of the party are
addressed by a statutory provision or EPA policy?
(Refer to federal interest criteria on page 6)
Is the site in CERCLIS but. designated stale-lead or
deferred site?
Recommended Letter if (lie Answer is Yes
Federal Interest Letter
.No Current Supcrfund Interest
Federal Interest Letter
No Current Superfund Interest Letter
If a MOA is in place, No Previous Superfund
Interest Letter for Non-CERCLIS sites, or State
Action Letter for CERCLIS sites; in either case, in
consultation with the slate
Federal Interest Letter .
If the party meets the policy criteria (see page 6),
Federal Interest Letter, Section HI, paragraph (a)
with a copy of the policy or statutory/regulatory
language attached
State Action Letter, in consultation with the slate
Recommended Letter if the Answer is No
No Previous Supcrfund Interest Letter or No
Current Supcrfund Interest Letter
Federal Interest Letter
No Previous Superfund Interest Letter or No
Current Superfund Interest Letter
Federal Interest Letter
If no MOA is in place, No Previous Supcrfund
Interest Letter for non-CERCLIS sites, No Current
Superfund Interest Letter for CERCLIS sites
No Previous Superfund Interest Letter for non-
CERCLIS sites, No Current Superfund Interest
Letter for CERCLIS sites
If the party does not meet the policy criteria (sec
page 6), Federal Interest Letter, Section 111,
paragraph (b), with a copy of the policy or
statutory/regulatory language attached
No Previous Superfund Interest Letter for Non-
CERCLIS siles, Federal Interest Letter for
CERCLIS sites
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