&EPA
United States
Environmental Protection
Agency
Enforcement and
Compliance
Assurance
EPA 330-B-98-001 V
November 1998
Handbook of Tools for
Managing Federal Superfund
Liability Risks at Brownfields
and Other Sites
Printed on Recycled Paper
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K
j. Handbook of Tools for
Managing Federal Superfund
<* Liability Risks at Brownfields
^ and Other Sites
U.S. Environmental Protection Agency
U.S. Environment! Froicf l-j-., A^.^t
Region 5, Library (Pt-i^",
,
, IL 60604-3590
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Acknowledgement
EPA's enforcement and compliance program has been a partner in
the Agency's Brownfields Initiative since its inception. As part of
the Brownfields Action Agenda, EPA has developed a broad array of
tools to encourage the cleanup and reuse of contaminated property
(such as brownfields) and address Superfund environmental liability-
based barriers. The Handbook of Tools for Managing Federal
Superfund Liability Risks at Brownfields and Other Sites is a
compilation of those tools to provide the reader with an understanding
of federal liability as it relates to real property. With this handbook,
we hope to encourage property reuse using the tools to evaluate the
benefits of redeveloping a brownfield property against any
environmental risks associated with that property.
We want to thank those individuals who contributed to this
handbook, starting with the members of the EPA work group led by
Elisabeth Freed: Lynne Jennings, Michael Mintzer, Heather Gray-
Torres, David Ostrander, Suzanne Bohan, Mark Calhoon, Bill Keener,
Bob Roberts, Katherine Dawes, Beau Mills, Randy Hippen, Mike
Fitzpatrick, and Karen Kraus, joined by Bob Brooks of the Justice
Department. Special thanks also goes to Lori Boughton and Laura
Bulatao for reviewing the handbook through its various iterations.
In addition to the hard copy of the handbook, you will also find it at
www.epa.gov/oeca/osre. For additional information regarding the
handbook, please contact Elisabeth Freed at (202) 564-5117. Regional
contact for discussions about specific sites are included in Appendix
E of the document.
We look forward to working with you in this important field.
Steven A. Herman, Assistant Administrator
Office of Enforcement and Compliance Assistance
November 16, 1998
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TABLE OF CONTENTS
SECTION_2.PDF
Introduction to Brownfields
SECTION_3.PDF
Statutory and Regulatory Provisions
Third-Party and Innocent Landowner Defenses 8
Secured Creditor Exemption 11
Limitation of Fiduciary Liability 14
Protection of Government Entities That Acquire Property Involuntarily 16
De minimis Waste Contributor Settlements 19
EPA Policies and Guidance
Policy Towards Owners of Residential Property at Superfund Sites 21
Policy Towards Owners of Property Containing Contaminated Aquifers 23
Policy on Interpreting CERCLA Provisions Addressing Lenders and
Involuntary Acquisitions by Government Entities 25
Guidance on Settlements With Prospective Purchasers
of Contaminated Property 27
Policy on the Issuance of EPA Comfort/Status Letters 29
Interim Approaches for Regional Relations with State Voluntary
Cleanup Programs 31
Guidance on Landowner Liability under Section 107(a)(1),
de minimis Landowner Settlements under Section 122(g)(1)(B) of
CERCLA, and Settlements with Prospective Purchasers of
Contaminated Property 33
Revised Guidance on CERCLA Settlements with De Micromis
Waste Contributors 35
Appendices
SECTION_4.PDF
A. Related Policies and Guidance 38
SECTION_5.PDF
B. Fact Sheets 50
SECTION_6.PDF
C. Model PPA 70
SECTION_7.PDF
D. Sample Comfort/Status Letters 80
SECTION_8.PDF
E. EPA Brownfields Contacts 89
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Introduction to Brownfields
In the United States, real property is one of the
most valuable economic assets. While this country
puts most real property to productive and beneficial
use, some properties lie abandoned or idled. These
properties, called "brownfields," may remain
unused or underutilized because of actual
contamination from past commercial or industrial
use; or, because people fear the property's previous
use left contamination. This fear results in
relatively clean property remaining idle. Parties
that otherwise would redevelop brownfields,
therefore, may search out unused property, or
"greenfields," to avoid the potential environmental
liability associated with potential clean up.
EPA firmly believes that the cleanup of
contaminated property including brownfields, and
Definition of "Brownfields"
The U.S. Environmental Protection Agency
(EPA) defines brownfields as abandoned,
idled, or under-used industrial and
commercial facilities where expansion or
redevelopment is complicated by real or
perceived environmental contamination.
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the clarification of federal
cleanup liability, are the
building blocks for sustainably
recycling previously used
property. By fostering the
redevelopment of brownfields,
EPA is helping to protect
greenfields from commercial
and industrial development.
EPA recognizes that private
parties may believe federal
environmental laws and policies
have created roadblocks to
reusing property. The federal
environmental law that most
affects the cleanup and reuse of
brownfields is the
Comprehensive Environmental
Response, Compensation, and
Liability Act, or CERCLA
(often referred to as Superfund).
This law requires EPA to focus
its attention on cleaning up the
nation's most toxic waste sites
in order to protect human health
and the environment.
Under CERCLA, the current
owner of a contaminated facility
may be held liable and
responsible for the cost of
cleanup. Although potential
liability is a valid and serious
concern for landowners, it is
important to keep this concern
within context. For example,
the General Accounting Office
The Local Nature of
Reuse Projects
By its very nature, property
reuse is a local activity.
Parties with the greatest
stake in the economic and
environmental benefits of a
reuse project are the
owner(s), surrounding
property owners, local
citizens, developer(s), local
government, and state
government. Because of
their stake in the project,
these parties are generally in
the best position to plan,
implement, and oversee
required cleanup and reuse
activities.
EPA believes that there are
many issues that affect
property reuse; federal
environmental liability is
only one. After a party has
a clear understanding of its
federal environmental
liability risks and the ways
it can minimize them, that
party may work primarily or
exclusively with state
government, local govern-
ment, and community
interests in addressing non-
federal issues and planning
and implementing its reuse
project.
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(GAO) estimates the number of
potential brownfields at
450,000 sites. Approximately
10% of brownfields are
considered for the National
Priorities List with less than 1%
actually placed. Therefore, at
least 99% of potential
brownfields across the country
will not require federal
Superfund action. Although
the existence and applicability
of federal environmental laws
and regulations could have an
impact on development, the
reality is that federal action
has been taken at a relatively
small number of these
parcels.
The relatively small number
of sites on the National
Priorities List is just one fact
illustrating that the federal
environmental liability risks
associated with brownfields are
not nearly as large as one might
imagine. Even for risks that
could be significant, both
Congress and EPA have
developed tools that can help
parties minimize and manage
their risks. This handbook
summarizes those tools.
Purpose and Use
of This Handbook
This handbook provides
background information on
CERCLA and summarizes
various statutory provisions and
agency regulations, policies,
and guidance documents that
can be used as tools to manage
CERCLA liability risks
Helpful Web Sites
The following Web
sites contain additional
information about issues
addressed in this handbook:
Office of Site Remediation
Enforcement:
www.epa.gov/oeca/osre
Office of Emergency and
Remedial Response:
www.epa.gov/oswer/oerr
Brownfields:
www.epa.gov/brownfields
Superfund:
www.epa.gov/superfund
Federal Register:
www.nara.gov/fedreg
Code of Federal
Regulations:
www.access.gpo.gov/nara/cfr
U.S. Code:
www.law.house.gov/usc
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associated with brownfields and
other sites. Designed for use
by parties involved in the
assessment, cleanup, and reuse
of brownfields, this handbook
provides a basic description of
the purpose, applicability, and
provisions of each tool. To
gain a more complete
understanding of any tool
described in this handbook,
refer to the relevant reference
documents listed in Appendix
A. Additional information on
related topics can be found on
EPA's internet web sites (see
box on page 3).
Before developing a
previously used property, a
party should collect and
consider information about
potential contamination at the
property. The next step is to
identify which level of
government should be
consulted regarding cleanup
and liability protection, if
needed. Most parties will find
they can then proceed directly
to redevelopment. Others may
want to pursue private
mechanisms such as
indemnification or insurance
(see box). If the contamination
Private Tools
Although not addressed in this handbook, various private and
state tools can be used to manage environmental liability risks
associated with brownfields and other properties. These tools
include the following:
Indemnification Provisions-These are private contractual
mechanisms in which one party promises to shield another from
liability. Indemnification provisions provide prospective buyers,
lenders, insurers, and developers with a means of assigning
responsibility for cleanup costs, and encourage negotiations between
j private parties without government involvement.
Environmental Insurance Policies-Under an environmental insurance
policy, the insurer promises to compensate the insured party for
liability related to environmental contamination of a particular
property. Environmental insurance policies help private parties
decrease the financial risk of getting involved in brownfields and
other properties.
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at the property warrants EPA's
attention under CERCLA, the
party should determine if EPA is
taking or plans to take action at
the property. After determining
where the property fits in the
federal or state cleanup pipeline,
a party can use this handbook to
determine which tool or tools
are most appropriate for helping
to manage the party's CERCLA
liability risks.
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Statutory and Regulatory Provisions
As a result of several well-publicized hazardous waste
disposal disasters in the 1970's, Congress passed the
Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) in 1980.
CERCLA, also known as Superfund, authorizes EPA to
respond to environmental emergencies involving
hazardous wastes or pollutants and contaminants, initiate
investigations and cleanups, and take enforcement action
against responsible parties. To provide money for these
activities, CERCLA established a trust fund which is
financed by taxes on the manufacture and import of
chemicals and petroleum.
EPA's response authority may be exercised through
removal actions or remedial actions. Removal actions are
implemented when there is an immediate threat to human
health and the environment. EPAhas used removal actions
to avert fires and explosions, prevent exposure to acute
toxicity, and to protect drinking water supplies. Removal
actions typically take less than twelve months to implement
and cost less than two million dollars. Compared to removal
actions, remedial actions may be longer-term and are usually
more expensive cleanups.
CERCLA is designed to ensure that those who caused
the pollution, rather than the general public, pay for the
cleanup. In order to be held liable for the costs or
performance of cleanup under CERCLA, a party must
fall within one of the four categories found in CERCLA
Section 107(a) and listed on the following page:
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Owner or operator of the facility require EPA's attention under
at the time of disposal of CERCLA or any other federal law.
hazardous substances; Accordingly, parties' fears of
Current owner or operator of the potential liability, rather than their
facility; actual incurrence of liability, are the
Person who generated or arranged primary obstacles to the redevelop-
for the disposal or treatment of ment 3^} reuse of brownfields.
hazardous substances; or EpA hopes ±&[ ^ remaining
Transporter of the hazardous sections of this handbook will assist
substances, if this person selected in eliminating or reducing fears.
the disposal or treatment site.
Using CERCLA, EPA has Because CERCLA is a statutory
ensured the successful cleanup of law enacted by Congress, it is
many of the nation's worst hazard- bindin§in ^ ^ actions brought
ous waste sites. These cleanups under CERCLA, whether those
have required the financing and actions *& brou§ht by EPA or m a
participation of numerous Poten- Private P^Iawsuit Similarly,
tially Responsible Parties (PRPs). CERCLA regulations issued by
Many prospective purchasers, EPA ** bindingin ^ CERCLA
developers, and lenders have actlons- As a result' CERCLA
avoided getting involved with UabiUtv protections written into
brownfield properties because they statute or regulation provide
fear that they too might be held extremely valuable means for
liable under CERCLA someday. managing CERCLA liability
As stated earlier, the vast majority nsks-
of brownfield properties will never
CERCLA's Liability Scheme
Under CERCLA, liability for cleanup is strict, joint, and several, as
well as retroactive. The implications of these features are as follows:
Strict-A party can be held liable even if it did not act negligently or
in bad faith.
Joint and several-If two or more parties are responsible for the
contamination at a site and unless a party can show that the injury or
harm at the site is divisible, any one or more of the parties can be
held liable for the entire cost of the cleanup.
Retroactive-A party can be held liable even if the hazardous
substance disposal occurred before CERCLA was enacted in 1980.
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Third-Party and Innocent
Landowner Defenses
CERCLA Section 107(b) establishes defenses to
cleanup liability. One of these defenses, the
"third-party" defense, may be useful in brownfields
situations. In certain circumstances, a landowner
is not liable under CERCLA for site contamination
resulting from acts committed by a third party who
is neither an employee nor an agent of the land-
owner. In order for this defense to apply, the third
party's act must not have occurred in connection
with a direct or indirect contractual relationship
with the land owner.
In 1986, Congress amended CERCLA Section
107(b) and 101(35), restricting the definition of
"contractual relationship" to protect people who
acquired real property after hazardous waste was
disposed there and who "did not know and had no
reason to know" that the property was
contaminated. This is often referred to as the
"innocent landowner defense" even though it is
actually a version of the third-party defense.
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To assert a third-party
defense, an innocent landowner
must show that he took
adequate precautions against the
third party's acts and that he
exercised "due care" with
regard to the hazardous
substances involved. In other
words, the landowner must
show that he did not "invite" the
third party's actions through
negligence or make their
consequences worse after they
occurred. There are additional
evaluation criteria for asserting
the "innocent landowner"
version of the third-party
defense (see box).
Other Considerations
It is fairly difficult for a
landowner to establish that he
did not know and had no reason
to know that hazardous
substances were present on his
property. A landowner must
establish that at the time of
purchase he made "all
appropriate inquiry" into the
property's previous ownership
and use. In assessing the
inquiry's "appropriateness," the
courts take into account any
specialized knowledge or
experience of the landowner,
the relationship of the purchase
Evaluation Criteria
In addition to satisfying the
"precautions" and "due
care" requirements, one of
the following must be
demonstrated:
The landowner did not know
and had no reason to know
that the property was
contaminated with hazardous
substances when he
acquired it;
The landowner is a
governmental entity that
acquired the property through
involuntary transfer or
eminent domain authority; or
The landowner acquired the
property by inheritance or
will.
The "innocent landowner"
defense CANNOT be
asserted in any of the
following circumstances:
A landowner disposes of a
hazardous substance on
property that is already
contaminated, even if he were
unaware of the earlier
contamination;
continued on page 11
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Evaluation Criteria (continued)
A landowner learns of
contamination on their
property and sells it without
informing the purchaser; or
A landowner contributes to a
release of a hazardous
substance on his property.
price to the property's value if
uncontaminated, commonly
known or reasonably ascertain-
able information about the
property, the obviousness of the
presence of contamination, and
the ability to detect such
contamination by appropriate
inspection.
If contaminants are
subsequently found on the
property, their very presence
may cast doubt on the
appropriateness of the inquiry.
Landowners have not always
succeeded in convincing courts
that unsuccessful inquiries were
"appropriate."
A party with an innocent
landowner defense may request
a de minimis landowner
settlement with EPA (see page
39).
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Secured Creditor Exemption
CERCLA Section 101(20)(A) contains a secured
creditor exemption which eliminates owner/
operator liability for lenders who hold indicia of
ownership in a CERCLA facility primarily to
protect their security interest in that facility,
provided they do not participate in the management
of the facility.
Before 1996, CERCLA did not define the key
terms used in this provision. As a result, lenders
often hesitated to loan money to owners and
developers of contaminated property for fear of
exposing themselves to potential CERCLA liability.
In 1992, EPA issued the "CERCLA Lender Liability
Rule" to clarify the secured creditor exemption.
After the Rule was invalidated by a court in 1994,
Congress incorporated many sections of the Rule
into the Asset Conservation, Lender Liability, and
Deposit Insurance Protection Act of 1996. That Act
amended CERCLA's secured creditor exemption to
greatly clarify the situations in which lenders will
and will not be protected from CERCLA liability.
The amended exemption appears at CERCLA
Section 101(20)(E)-(G).
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"Participation in
Management" Defined
A lender "participates in
management" (and will not
qualify for the exemption) if
it:
Exercises decision-making
control over environmental
compliance related to the
facility, and in doing so,
undertakes responsibility for
hazardous substance handling
or disposal practices; or
Exercises control at a level
similar to that of a manager
of the facility, and in doing so,
assumes or manifests
responsibility with respect to
(1) Day-to-day decision-
making on environmental
compliance, or
(2) All, or substantially all, of
the operational (as opposed
to financial or
administrative) functions of
the facility other than
environmental compliance.
The term "participate in
management" does not
include certain activities
such as:
Inspecting the facility;
Requiring a response action
or other lawful means to
address a release or
threatened release;
Conducting a response action
under CERCLA Section
107(d)(l) or under the
direction of an on-scene
coordinator;
Providing financial or other
advice in an effort to prevent
or cure default; and
Restructuring or
renegotiating the terms of
the security interest;
provided the actions do
not rise to the level
of participating in
management.
After foreclosure, a lender
who did not participate in
management prior to
foreclosure is not an "owner
or operator" if it:
Sells, releases (in the case of
a lease finance transaction),
or liquidates the facility.
continued on page 15
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"Participation in
Management" Defined
(continued)
Maintains business activities
or winds up operations;
Undertakes a response
action under CERCLA
Section 107(d)(l) or under
the direction of an on-scene
coordinator; or
Takes any other measure to
preserve, protect, or prepare
the facility for sale or
disposition;
provided the lender seeks to
divest itself of the facility at
the earliest practicable,
commercially reasonable
time, on commercially
reasonable terms. EPA
considers this test to be
met if the lender, within
12 months after foreclosure,
lists the property with a
broker or advertises it for
sale in an appropriate
publication.
Other Considerations
The 1996 amendment also
protects lenders from
contribution actions and
government enforcement
actions. Regardless of
CERCLA's secured creditor
exemption from owner/operator
liability, a lender may be liable
under CERCLA as a generator
or transporter if it meets the
requirements outlined in
CERCLA Section 107 (a)(3) or (4).
In June 1997, EPA issued a
lender policy which further
clarifies the liability of lenders
under CERCLA (seepage 31).
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Limitation of Fiduciary Liability
A "fiduciary" is a person who acts for the benefit
of another party. Common examples include
trustees, executors, and administrators. CERCLA
Section 107(n), added by the Asset Conservation,
Lender Liability, and Deposit Insurance Protection
Act of 1996, protects fiduciaries from personal
liability in certain situations, provides a liability
limit for those fiduciaries who are found liable, and
describes situations in which fiduciaries will and
will not receive this statutory protection. CERCLA's
fiduciary provision, however, does not protect the
assets of the trust or estate administered by the
fiduciary.
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Fiduciary Liability:
For actions taken in a
fiduciary capacity, liability
under any CERCLA
provision is limited to
assets held in the fiduciary
capacity. A fiduciary will
not be liable in its personal
capacity for certain actions
such as:
Undertaking or requiring
another person to undertake
any lawful means of
addressing a hazardous
substance;
Enforcing environmental
compliance terms of the
fiduciary agreement; or
Administering a facility that
was contaminated before
the fiduciary relationship
began.
The liability limitation and
"safe harbor" described
above do not limit the
liability of a fiduciary
whose negligence causes or
contributes to a release or
threatened release.
The term "fiduciary"
means a person acting for
the benefit of another party
as a bona fide trustee,
executor, or administrator,
among other things. It does
not include a person who:
Acts as a fiduciary with
respect to a for-profit trust or
other for-profit fiduciary
estate, unless the trust or
estate was created:
Because of the
incapacity of a natural
person, or
As part of, or to
facilitate, an estate
plan.
Acquires ownership or
control of a facility for the
objective purpose of
avoiding liability of that
person or another person.
Nothing in the fiduciary
subsection applies to a
person who:
Acting in a beneficiary or
non-fiduciary capacity,
directly or indirectly benefits
from the trust or fiduciary
relationship; or
Is a beneficiary and fiduciary
with respect to the same
fiduciary estate and, as a
fiduciary, receives benefits
exceeding customary or
reasonable compensation.
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Protection of Government Entities
That Acquire Property Involuntarily
CERCLA Sections 101(20)(D) and 101(35)(A)
protect federal, state, and local government entities
from owner/operator liability if they involuntarily
acquire contaminated property while performing
their governmental duties. If a unit of state or local
government makes an involuntary acquisition, it is
exempt from owner/operator liability under
CERCLA. Additionally, a state, local, or federal
government entity that makes an involuntary
acquisition will have a third-party defense to owner/
operator liability under CERCLA if:
The contamination occurred before the government
entity acquired the property;
The government entity exercised due care with
respect to the contamination (e.g., did not cause,
contribute to, or exacerbate the contamination); and
The government entity took precautions against
certain acts of the party that caused the
contamination and against the consequences of those
acts.
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Regulations set forth at 40 some sort of discretionary,
CFR 300.1105, and validated by volitional action before they can
the 1996 Asset Conservation, acquire property following
Lender Liability, and Deposit circumstances such as
Insurance Protection Act, abandonment, bankruptcy, or
provide some examples of tax delinquency. In these cases,
involuntary acquisitions. the "involuntary" status of the
acquisition is not jeopardized.
As the examples below
indicate, a government entity ~ ,
, , , , . Other Considerations
need not be completely passive
in order to acquire property A government entity will not
involuntarily. Often have a CERCLA liability
government entities must take exemption or defense if it has
Acceptable Involuntary Acquisitions
EPA considers an acquisition to be "involuntary" if the
government's interest in, and ultimate ownership of, the property
exists only because the conduct of a non-governmental party
gives rise to the government's legal right to control or take title
to the property.
Involuntary acquisitions by government entities include the
following:
Acquisitions made by a government entity functioning as a sovereign
(such as acquisitions following abandonment or tax delinquency);
Acquisitions made by a government entity acting as a conservator
or receiver pursuant to a clear and direct statutory mandate or
regulatory authority (such as acquisitions of the security interests or
properties of failed private lending or depository institutions);
Acquisitions by a government entity through foreclosure and its equivalents
while administering a governmental loan, loan guarantee, or loan insurance
program; and
Acquisitions by a government entity pursuant to seizure or forfeiture
authority.
17
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caused or contributed to the
release or threatened release of
contamination. As a result,
acquiring property involuntarily
does not unconditionally or
permanently insulate a
government entity from
CERCLA liability.
Furthermore, the liability
exemption and defense
described above do not shield
government entities from
liability as generators or
transporters of hazardous
substances under CERCLA
Section 107(a)(3) or (4).
In June 1997, EPA issued a
policy which further clarifies
the CERCLA liability of
government entities that
involuntarily acquire property
(see page 31).
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De Minimis Waste Contributor
Settlements
At a CERCLA site, some parties may have
contributed only minimal amounts of hazardous
substances compared to the amounts contributed by
other parties. Under CERCLA Section 122(g),
these contributors of small amounts may enter into
de minimis waste contributor settlements with EPA.
Such a settlement provides the waste contributor
with a covenant not to sue and contribution
protection from the United States. As a result, the
settling party is protected from legal actions brought
by EPA or other parties at the site. In exchange for
the settlement, the de minimis party agrees to
provide funds, based on its share of total waste
contribution, toward cleanup, or to undertake some
of the actual work.
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EPA Policies and Guidance
Issuing a policy or guidance document is the strongest
statement that EPA can make, short of issuing
regulations, regarding the circumstances in which
EPA may bring a CERCLA enforcement action
against a particular type of party. Although the courts
are not bound by EPA's administrative policies or
guidance documents, they have recognized EPA's
technical expertise and have generally ruled in
agreement with EPA's opinions and interpretations
of the laws it implements.
When a site, circumstance, or party falls within the
defined criteria of an EPA policy or guidance
document, individuals should find satisfaction in the
fact that EPA will act in a manner consistent with that
policy. In many cases, EPA's statement of policy
not to pursue a particular type of party will provide
adequate protection and comfort to an eligible party
who will not need to seek additional documentation
from EPA. In other cases, the potential for liability
may motivate a party either to enter into an agreement
with EPA that provides protection from CERCLA
actions brought by EPA or other parties, or to seek
written comfort from EPA.
The policy and guidance documents summarized in
this section describe all three of these avenues for
managing CERCLA liability risks. Because the
documents focus on issues at non-federally-owned
properties, parties interested in property currently or
formerly owned by the federal government should
consult the relevant documents listed in Appendix A.
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Policy Towards Owners of
Residential Property at
Superfund Sites
^H
July 3, 1991
Owners of residential property located on a
CERCLA site have raised concerns that they would
be responsible for performance of a response action
or payment of cleanup costs because they came
within the definition of "owner" under CERCLA.
Additionally, the owners were concerned that they
might be unable to sell their properties given the
uncertainty of EPA taking action against them.
EPA issued its policy toward residential property
owners to clarify when it would not require these
owners to perform or pay for cleanup. The policy
states that EPA, in the exercise of its enforcement
discretion, will not take enforcement actions against
an owner of residential property unless his activities
lead to a release or threat of release of hazardous
substances, resulting in the taking of a response
action at the site.
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In addition to applying to
owners, EPA's policy applies to
lessees of residential property
whose activities are consistent
with the policy. The policy
also applies to persons who
acquire residential property
through purchase, foreclosure,
gift, inheritance or other form
of acquisition, as long as those
persons' activities after
acquisition are consistent with
the policy.
Other Considerations:
With respect to EPA's
exercise of enforcement
discretion under this policy, it
is irrelevant whether an owner
of residential property has or
had knowledge or reason to
believe that contamination was
present on the site at the time
of purchase or sale of the
residential property.
Threshold Criteria
An owner of residential property located on a CERCLA site is
protected if the owner:
Has not and does not engage in activities that lead to a release or
threat of release of hazardous substances, resulting in the taking of
a response action at the site;
Cooperates fully with EPA by providing access and information
when requested and does not interfere with the activities either
EPA or a state are taking to implement a CERCLA response action;
Does not improve the property in a manner inconsistent with
residential use; and
Complies with institutional controls (e.g., property use restrictions)
that may be placed on the residential property as part of the Agency's
response action.
For further information contact:
Lori Boughton - (202) 564-5106
The Office of Site Remediation
Enforcement
22
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Policy Towards Owners of
Property Containing
Contaminated Aquifers
July 3, 1995
The contaminated aquifer policy addresses the
CERCLA liability of owners of property that
contain an aquifer contaminated by a source or
sources outside their property. These owners were
concerned that EPA would hold them responsible
for cleanup under CERCLA even though they did
not cause and could not have prevented the
groundwater contamination.
The policy states that EPA, in an exercise of its
enforcement discretion, will not take an action
under CERCLA to require cleanup or the payment
of cleanup costs provided that the landowner did
not cause or contribute to the contamination.
23
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Threshold Criteria:
A landowner is protected by this policy if all of the following
criteria are met:
The hazardous substances contained in the aquifer are present solely
as the result of subsurface migration from a source or sources
outside the landowner's property;
The landowner did not cause, contribute to, or make the
contamination worse through any act or omission on their part;
The person responsible for contaminating the aquifer is not an agent
or employee of the landowner, and was not in a direct or indirect
contractual relationship with the landowner (exclusive of
conveyance of title); and
The landowner is not considered a liable party under CERCLA for
any other reason such as contributing to the contamination as a
generator or transporter.
This policy may not apply in cases where:
The property contains a groundwater well which may influence
the migration of contamination in the affected aquifer; or
The landowner acquires the property, directly or indirectly, from a
person who caused the original release.
Other Considerations For further information contact:
, . , u , Elisabeth Freed-(202) 564-5117
If a third party who caused or
v * . . The Office of Site Remediation
contributed to the contamination Enforcement
sues or threatens to sue, EPA
may consider entering into a
de minimis landowner settlement
with parties protected by this
policy (see page 39).
24
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Policy on Interpreting CERCLA
Provisions Addressing Lenders
and Involuntary Acquisitions by
Government Entities
June 30, 1997
The lender liability policy clarifies the
circumstances in which EPA intends to apply as
guidance the provisions of the 1992 CERCLA
Lender Liability Rule ("Rule") and its preamble in
interpreting CERCLA's lender and involuntary
acquisition provisions. The Asset Conservation,
Lender Liability, and Deposit Insurance Protection
Act of 1996 amended these CERCLA provisions
and generally followed the approach of the Rule.
EPA's subsequent lender policy explains that when
interpreting the amended secured creditor
exemption, EPA will treat the Rule and its preamble
as authoritative guidance. For example, the
amendments do not clarify the steps that a lender
can take after foreclosure and still remain exempt
25
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Example:
After foreclosure, a lender who did not "participate in
management" prior to foreclosure can generally:
Maintain business activities;
Wind up operations; and
Take actions to preserve, protect, or prepare the property for sale
provided that the lender attempts to sell, re-lease property held
pursuant to a lease financing transaction, or otherwise divest
itself of the property in a reasonably expeditious manner using
commercially reasonable means. This test will generally be
met if the lender, within 12 months of foreclosure, lists the
property with a broker or advertises it for sale in an appropriate
publication.
from owner/operator liability. In
making liability determinations,
EPA, following its policy, will
defer to the Rule (see box).
The 1996 amendment also
validates the portion of the Rule
that addresses involuntary
acquisitions by government
entities. EPA's policy clarifies
that similar to the preamble of
any valid regulation, the
preamble to the CERCLA
Lender Liability Rule will be
looked to as authoritative
guidance on the meaning of the
portion of the Rule addressing
involuntary acquisitions.
For further information contact:
Lori Boughton - (202) 564-5106
The Office of Site Remediation
Enforcement
26
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Guidance on Settlements With
Prospective Purchasers of
Contaminated Property
May 1995
Knowledge of contamination prior to purchase
prevents a party from asserting the CERCLA
"innocent landowner defense" after acquisition of a
property. As a result, many prospective purchasers
have avoided buying properties that are
contaminated or merely perceived to be
contaminated. To solve this problem at
contaminated properties where EPA action has been,
is currently, or may be taken, the agency may enter
into administrative agreements with prospective
purchasers who agree to provide a benefit to EPA.
In return, the agreement provides a promise or
covenant from the federal government not to sue the
prospective purchaser for the costs of cleaning up
the contamination that existed at the time of
purchase.
27
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Criteria
EPA may enter into a prospective purchaser agreement in
situations where all of the following criteria can be met:
EPA has undertaken, is undertaking, or plans to undertake, a response
action;
The agreement will result in either:
a substantial direct benefit to EPA in terms of cleanup or funds
for cleanup; or
a lesser direct benefit to EPA coupled with a substantial indirect
benefit to the community (such as the creation of jobs,
preservation of green space, or infrastructure development);
With the exercise of due care, the continued operation of the facility
or new site development will not aggravate or contribute to the
existing contamination or interfere with EPA's response action;
The continued operation or new development of the property will
not pose health risks to the community and those persons likely to
be present at the site; and
The prospective purchaser is financially viable.
Other Considerations
Prospective purchaser
agreements may not be
appropriate at sites where there
are other means available to
address CERCLA liability
concerns (e.g., private
mechanisms such as insurance
or indemnification agreements)
without EPA involvement, and
at sites undergoing cleanup
through a state program.
This guidance also applies to
persons seeking prospectively to
operate or lease contaminated
property.
The model prospective
purchaser agreement used by
the agency can be found in
Appendix C.
For further information contact:
David Gordon Helen Keplinger
(202)564-5147 (202)564-4221
The Office of Site Remediation
Enforcement
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Policy on the Issuance of EPA
Comfort/Status Letters
November 12, 1996
Some properties may remain unused or
underutilized because potential property owners,
developers, and lenders are unsure of the
environmental status of these properties. By
issuing comfort letters, EPA helps interested parties
better understand the likelihood of EPA involvement
at a potentially contaminated property. Although
not intending to become involved in typical private
real estate transactions, EPA is willing to provide a
comfort letter when appropriate.
Comfort letters are intended to clarify the
likelihood of EPA involvement at a site, or identify
whether a party is protected by a statutory provision
or discretionary enforcement policy. If EPA is not
involved at the property, the party may be referred
to the appropriate state agency for further
29
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Evaluation Criteria
EPA may issue a comfort
letter upon request if:
The letter may facilitate
cleanup and redevelopment
of potentially contaminated
property;
There is the realistic
perception or probability of
incurring CERCLA liability;
or
There is no other mechanism
available to adequately
address the party's concerns.
information. EPA does not
intend to become involved in
typical private real estate
transactions.
Comfort letters address a
particular set of circumstances
and provide whatever
information is contained within
EPA's databases. Questions
typically addressed by comfort
letters include:
Is the site or property listed in
CERCLIS?
Has the site been archived
from CERCLIS?
Is the site or property
contained 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?
Are the conditions at the site
or activities of the party
addressed by a statutory
provision or EPA policy?
Is the site in CERCLIS but
designated as a state-lead or
deferred to the state agency for
cleanup?
The agency uses four sample
comfort letters to respond to
requests. The samples can be
found in Appendix D.
For further Information contact:
Elisabeth Freed - (202) 564-5117
The Office of Site Remediation
Enforcement
30
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Interim Approaches for Regional
Relations with State Voluntary
Cleanup Programs
November 14, 1996
State and local empowerment to clean up sites is at
the center of EPA's Brownfields Initiative. Many states
have developed voluntary cleanup programs that are
designed to streamline protective cleanups of sites that
are not on the National Priorities List and other sites
not of federal interest.
EPA regional offices have developed partnerships
with states with voluntary cleanup programs through
the negotiation of Memoranda of Agreement (MOA).
During the negotiation of an agreement, EPA and the
interested state address state capabilities, programmatic
areas, and the types of sites to be included.
EPA's guidance is intended to facilitate regional/state
MOA negotiations. The MOA delineates the roles and
responsibilities between a state and EPA with respect to
sites being cleaned up under the state's voluntary
cleanup programs. This interim guidance sets out six
baseline criteria which are evaluated before a region
enters into an MOA with a state voluntary cleanup
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program. Through the signed taking a removal or remedial
and completed MO A, EPA action at sites involved in the
acknowledges the adequacy of voluntary cleanup program, unless
the state voluntary cleanup EPA determines that there may be
program. EPA also agrees that for an imminent and substantial
sites addressed under the MOA, danger to public health or welfare
EPA does not plan or anticipate or the environment.
Program Evaluation Criteria
EPA may enter into an MOA addressing a state voluntary cleanup
program that meets all of the following baseline criteria:
Provides opportunities for meaningful community involvement.
Ensures that voluntary response actions are protective of human
health and the environment.
Has adequate resources to ensure that voluntary response actions
are conducted in an appropriate and timely manner, and that both
technical assistance and streamlined procedures where appropriate,
are available from the State agency responsible for the Voluntary
Cleanup Program.
Provides mechanisms for the written approval of response action
plans and a certification or similar documentation indicating that
the response actions are complete.
Provides adequate oversight to ensure that voluntary response
actions are conducted in such a manner to assure protection of
human health and the environment, as described above.
Shows the capability, through enforcement or other authorities, of
ensuring completion of response actions if the volunteering party
(ies) conduction the response action fail(s) or refuse(s) to complete
the necessary response action, including operation and maintenance
or long-term monitoring activities if appropriate.
For further information contact:
Leslie Jones - (202) 564-5123. Nancy Wilson - (202) 260-1910.
The Office of Site Remediation Outreach and Special Project Staff
Enforcement
^ 32
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Guidance on Landowner Liability
Section 107 (a) (1) of CERCLA,
de minimis Landowner
Settlements under
Section 122(g)(l)(B) of CERCLA,
and Settlements with
Prospective Purchasers
of Contaminated Property
June 16, 1989
In the event of a release or threatened release of a
hazardous substance, owners of property where such
a substance has been "deposited, stored, disposed of,
or placed, or otherwise come to be located" are liable
for the costs of cleaning up the release. Under
Section 107(b)(3), liability extends to releases caused
by a third party "in connection with a contractual
relationship, existing directly or indirectly" with the
owner. To address concerns that liability could be
unfairly assigned to landowners who had not been
involved in hazardous substance disposal activities,
EPA issued its policy on de minimis landowner
33
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settlements. (This policy also
includes a section on
settlements with prospective
purchasers that was superseded
by the May 1995 Guidance on
Settlements with Prospective
Purchasers of Contaminated
Property). The policy states
that the Agency will make an
effort to determine in the early
stages of a case whether a
landowner satisfies the elements
(see box) necessary to establish
a third party defense under
Section 107(b)(3) of CERCLA.
If the Agency determines the
landowner meets the elements,
the Agency may negotiate a de
minimis settlement under
Section 122(g)(l)(B) of
CERCLA. The settlement
provides the landowner with a
covenant or promise that EPA
will not sue the landowner for
the costs of cleaning up existing
contamination, as well a
protection from contribution
actions brought by other parties.
In exchange, EPA may require
the landowner to provide, at a
minimum, access and cooperate
with any cleanup activities on
their property.
Elements of Defense
1. Did the landowner
acquire the property
without knowledge or
reason to know of the
disposal of hazardous
substances?
2. Did governmental
landowners acquire the
property involuntarily or
through eminent domain
proceedings?
3. Did the landowner
acquire the property by
inheritance or bequest
without knowledge?
4. Was the property
contaminated by third
parties outside the chain
of title?
Other Considerations:
EPA may consider entering
into de minimis landowner
settlements with parties
protected by the Policy Towards
Owners of Property Containing
Contaminated Aquifers.
For further information contact:
Helen Keplinger
(202) 564-4221
Office of Site Remediation
Enforcement
34
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Revised Guidance on CERCLA
Settlements with De Micromis
Waste Contributors
^H
June 3, 1996
EPA provides enhanced protection for a subset of
de minimis waste contributors referred to as "de
micromis". De micromis settlements may be
available to parties who generated or transported a
minuscule amount of waste to a Superfund site, an
amount less than the minimal amount normally
contributed by the de minimis parties. EPA's
revised guidance defines eligible de micromis
parties with volumetric cut-offs (see box). As a
matter of policy, EPA does not pursue de micromis
waste contributors for the costs of cleaning up a
site. If, however, a de micromis party is threatened
with litigation by other parties at the site for the
costs of cleanup, EPA will enter into a zero dollar
settlement with the de micromis party. De
micromis settlements provide both a covenant not to
sue from the Agency and contribution protection
against other parties at the site.
35
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Eligibility for a de
micromis settlement
EPA's policy is to not pursue
a party if their waste
contribution at a site is:
Equal or less than either (1)
0.002% of the total
hazardous waste volume, or
(2) 110 gallons (e.g., two 55
gallon drums) or 200 pounds
of material containing
hazardous substances; or
0.2% of total volume where
the party contributed only
municipal solid waste.
For further information contact:
Myron Eng Victoria Van Roden
(202) 564-2276 (202) 564-4268
Office of Site Remediation
Enforcement
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APPENDIX A
37
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Related Policies and Guidance
In addition to issuing policy and guidance
documents that provide tools for managing
CERCLA liability risks, EPA has issued various
policy and guidance documents that promote faster
investigation, cleanup, and redevelopment of sites.
Summarized below is just a small sampling of the
many policy and guidance documents that may be
helpful to parties interested in managing CERCLA
liability risks at brownflelds and other sites.
Copies of the policy and guidance documents can
be obtained from the Superfund Hotline ((800) 424-
9346), the Superfund Document Center ((703) 603-
9232), or on EPA's web pages (see page 3). In some
instances, copies may be ordered from the National
Technical Information Service (NTIS). Documents
may be ordered by either writing to
NTIS
5283 Port Royal Road
Springfield, VA 22161
or calling (800) 553-NTIS.
38
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Reference List
CERCLA Orientation Manual
October 1992
The CERCLA Orientation
Manual serves as a program
orientation guide and reference
document to the Comprehensive
Environmental Response,
Compensation, and Liability
Act. The purpose of the
manual is to assist EPA and
state personnel involved with
hazardous waste remediation,
emergency response, and
chemical and emergency
preparedness. The
organizational and operational
components of the Superfund
program also are described.
To order a hard copy:
National Center for
Environmental
Publications and Information
P.O. Box 42419
Cincinnati, OH 45242-2419
(513)489-8190
order number: EPA542R92005
National Contingency Plan
(40C.F.R. Part 300)
The National Oil and
Hazardous Substances Pollution
Contingency Plan, more
commonly called the National
Contingency Plan (NCP),
establishes a comprehensive
process by which the federal
government responds to both oil
spills and hazardous substances.
The NCP coordinates response
efforts such as accident
reporting, spill containment,
cleanup, and personnel contacts.
Rules of Thumb for Superfund
Remedy Selection
October 2, 1995
This document briefly
summarizes key elements of
various remedy selection
guidance documents and
policies, and describes the three
major policy areas of remedy
selection: 1) risk assessment
and risk management; 2)
development of remedial
alternatives; and 3) groundwater
response action.
39
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This Is Superfund - A Citizen's
Guide to EPA's Superfund
Program
"This is Superfund"
introduces basic issues
regarding the Superfund
program. Topics addressed
include how Superfund sites are
discovered, and who pays for
and is involved in cleanups.
Key terms for understanding the
Superfund program, such as
potentially responsible party
and National Priorities List are
defined.
For more information on
Superfund:
Call 1-800-424-9346
or
Contact the nearest EPA
Regional Office.
Community Reinvestment Act
(CRA)
In 1997 Congress enacted the
Community Reinvestment Act
requiring lenders to make
capital available in low- and
moderate-income urban
neighborhoods, thereby giving
rise to concerns over potential
environmental and financial
liability for cleanups at sites by
lenders, developers, and
property owners. The
Community Reinvestment Act
establishes creative initiatives
for economic development
while easing fears of financial
liability and regulatory burdens.
For further information:
Outreach and Special Projects
Staff
(202) 260-6285
Partial Deletion of Sites Listed
on the National Priorities List
November 1, 1995
EPA deletes sites from the
National Priorities List with
state concurrence when no
further cleanup response is
warranted under CERCLA.
Historically, only entire sites
could be deleted from the
National Priorities List. Under
this policy, parties may submit
petitions for partial deletions to
EPA. Additionally, the policy
gives EPA regional offices the
flexibility to clarify which areas
40
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of National Priorities List sites
are considered uncontaminated
due to the completion of proper
investigation or cleanup actions.
Before a portion of a site can
be considered for partial
deletion from the National
Priorities List, it must meet the
same deletion criteria that an
entire site must meet. (See 40
CFR Part 300.425).
For further information:
Hugo Paul Fleischman
Office of Emergency and
Remedial Response
(703) 603-8769
Guidance on Deferral ofNPL
Listing Determinations While
States Oversee Response Actions
May 3, 1995
The deferral guidance
provides a framework for
Regions, states, and tribes to
determine the most appropriate,
effective, and efficient means to
address response at sites.
Implementation is to be flexible
so as to account for the different
capabilities of these acting
parties.
For further information:
Steve Caldwell
Office of Emergency and
Remedial Response
(703) 603-8850
or
Murray Newton
Office of Emergency and
Remedial Response
(703) 603-8840
The National Priorities List for
Uncontrolled Hazardous Waste
Sites; Listing and Deletion
Policy for Federal Facilities
November 24, 1997
This document establishes an
interim final revision to the
Agency's policy on placing
federal facility sites on the
National Priorities List. The
interim final policy revisions
apply to federal facility sites
that are RCRA-regulated
facilities engaged in treatment,
storage, or disposal of
hazardous waste.
For further information:
Hugh Davis
Office of Solid Waste
(703) 308-8633
41
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Policy Towards Landowners
and Transferees of Federal
Facilities
June 13, 1997
This policy was created to
address the potential liability
concerns of non-federal parties
who acquire federal facility
property. Such acquisitions
have become increasingly
common with the reduction in
size and number of federal
facilities such as military bases.
The intent of this policy is to
alleviate uncertainty regarding
potential enforcement action by
the EPA against landowners and
transferees (i.e., lessees) of
federal facility properties.
For further information:
Seth Lowe
Federal Facilities Restoration
and Reuse Office
(202) 260-8692
Bill Frank
Federal Facilities Enforcement
Office
(202) 564-2584
EPA Guidance on the Transfer
of Federal Property by Deed
Before All Necessary Remedial
Action Has Been Taken
Pursuant to CERCLA Section
120(h)(3).
June 16, 1998
This guidance, referred to as
the "Early Transfer Guidance,"
describes EPA's process in
determining a federally-owned
property's suitability for
transfer to a private party prior
to the completion of all
necessary cleanup action
Concurrence of a state's
Governor is required.
For further information:
Federal Facilities Restoration
and Reuse Office
(202) 260-9924
Road Map to Understanding
Innovative Technology Options
for Brownfields Investigation
and Cleanup
June 1997
The Road Map identifies
42
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potential technology options
available at each of the basic
phases involved in the
characterization and cleanup of
brownfields sites: site
assessment, site investigation,
cleanup options, and cleanup
design and implementation.
The Road Map is not a guidance
document. Rather, each
section describes the steps
involved in the characterization
and cleanup of brownfields sites
and connects those steps with
available technology options
and supporting technology
information resources.
Appendices in the Road Map
include a list of common
contaminants found at typical
brownfields sites, a detailed
guide to common environmental
terms and acronyms, and a list
of state and EPA brownfields
contacts.
For further information:
Dan Powell
Technology Innovation Office
(703) 603-9135
To order a hard copy:
For government parties:
National Center for
Environmental Publications and
Information (NCEPI)
U.S. Environmental Protection
Agency
P.O. Box 42419
Cincinati, OH 45242
Telephone: (513) 489-8190
refer to document number: EPA
542-B-97-002
Tool Kit of Information
Resources for Brownfields
Investigation and Cleanup
June 1997
The Tool Kit provides
abstracts and access information
for a variety of relevant
resources, including electronic
databases and bulletin boards,
newsletters, regulatory and
policy guidance, and technical
reports. The Tool Kit
describes the resources
identified in the Road Map,
explains how to obtain the
publications, and provides a
"starter kit" of important
information resources to help
brownfield stakeholders
understand available
technology.
43
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For further information:
Dan Powell
Technology Innovation Office
(703)603-9135
To order a hard copy:
For government parties:
National Center for
Environmental Publications and
Information (NCEPI)
U.S. Environmental Protection
Agency
P.O. Box 42419
Cincinnati, OH 45242
Telephone: (513) 489-8190
refer to document number: EPA
542-B-97-001
consideration, the guidance
provides a step-by-step
methodology for determining
levels of soil contamination.
The Soil Screeening Guidance
can help speed up the
investigation and cleanup of
contaminated sites, save time
and money and make sites
available for redevelopment
more quickly.
Documents related to the
guidance include the Soil
Screening Guidance User's
Guide, Fact Sheet, and
Technical Background
Document.
Soil Screening Guidance:
Fact Sheet
May 17, 1996
EPA's Soil Screening Guidance
helps standardize and accelerate
the evaluation and cleanup of
contaminated soils at National
Priorities List sites where future
residential land use is
anticipated. To help identify
areas at sites on the National
Priorities List that need further
investigation or that can be
screened out from further
For further information:
David Cooper
Office of Emergency and
Remedial Response
(703) 603-9034
Land Use in the CERCLA
Remedy Selection
Process
May 1995
EPA's land use directive
promotes early discussions with
44
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local land use planning
authorities, local officials, and
the public regarding reasonably
anticipated future uses of the
property on which a National
Priorities List site is located.
The directive also encourages
the use of realistic assumptions
regarding future land use in the
baseline risk assessment the
development of remedial
alternatives, and the CERCLA
remedy selection process.
For further information:
Sherri Clark
Office of Emergency and
Remedial Response
(703) 603-9043
Presumptive Remedies: Policy
and Procedures
September 1993
Presumptive remedies are
preferred technologies to be
used for cleanups at common
categories of sites.
EPA's presumptive remedies
limit the number of
technologies considered for
cleanup at similar sites and
result in streamlined site
assessments, remedy designs,
and accelerated remedy
selection decisions which save
time and money. Presumptive
remedies also promote
consistency in remedy design
and selection, and improve the
predictability of the remedy
selection process for
communities and potentially
responsible parties.
For further information:
Andrea McLaughlin
Office of Emergency and
Remedial Response
(703) 603-8793
Presumptive Remedy for
CERCLA Municipal Landail
Sites
September 1993
This fact sheet establishes
containment as the presumptive
remedy for CERCLA municipal
landfill sites. It also addresses
certain streamlining principles
related to the planning of
remedial investigations/
feasibility studies and provides
guidance on the level of detail
appropriate for risk assessment
45
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Presumptive Response Strategy
and Ex-Situ Treatment
Technologies for Contaminated
Groundwater at CERCLA Sites
October 1996
This guidance addresses the
importance of using site-
specific remedial objectives as
the focus of the remedy
selection process for
contaminated groundwater.
Topics addressed include
presumptive response strategy
for all sites with contaminated
groundwater, presumptive
technologies for treatment of
extracted groundwater, and
selection of technologies for the
ex-situ treatment component of
groundwater remedy.
For further information:
Scott Fredericks
Office of Emergency and
Remedial Response
(703)603-8771
Presumptive Remedies: Site
Characterization and
Technology Selection for
CERCLA Sites with Volatile
Organic Compounds in Soil
January 19, 1993
This fact sheet outlines the
presumptive remedies for soils
contaminated by volatile
organic compounds at CERCLA
sites. Charts and matrices are
included to explain and
compare the various
technologies.
For further information:
Scott Fredericks
Office of Emergency and
Remedial Response
(703) 603-8771
Methodology for Early De
Minimis Waste Contributor
Settlements under CERCLA
Section 122(g)(l)(A)
June 2, 1992
Under CERCLA section
122(g)(l)(A), EPA is authorized
to enter into settlements with
minor waste contributors
(de minimis parties) of a site
when practicable and in the
public interest. This policy
provides guidance for early
consideration and proposals of
such de minimis settlements,
including the methodology to
46
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facilitate settlement, and owners and operators of co-
procedures for identifying early disposal sites on the National
de minimis candidates. For Priorities List seeking to settle
further information: their Superfund liability.
Gary Worthman
Office of Site Remediation
Enforcement
(202) 564-4292
Policy for Municipality and
Municipal Solid Waste
CERCLA Settlements at NPL
Co-Disposal Sites
February 5, 1998
This policy supplements the
Interim Policy on CERCLA
Settlements Involving
Municipalities and Municipal
Waste issued September 30,
1989. Under this policy, EPA
continues the practice of
generally not identifying
generators and transporters of
municipal solid waste as
potentially responsible parties at
National Priorities List sites.
The policy identifies a
settlement methodology for
making settlements to MSW
generators and transporters
seeking to resolve liability. It
also identifies a presumptive
settlement range for municipal
For further information:
Leslie Jones
Office of Site Remediation
Enforcement
(202)564-5123
or
Doug Dixon
Office of Site Remediation
Enforcement
(202) 564-4232
General Policy on Ability to
Pay Determinations
September 30,1997
This policy document explains
what is necessary for an
acceptable ability to pay (ATP)
settlement in Superfund cases,
and addresses general issues
applicable to both the ATP
process and ATP settlements.
The guidance sets an "Undue
financial hardship" standard
and describes a two-part
analysis for determining an
acceptable ATP settlement
amount are addressed.
47
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For further information:
Robert Kenney
Office of Site Remediation
Enforcement
(202)564-5127
Fact Sheet: Revised De
Micromis Guidance
June 4, 1996
This fact sheet describes
EPA's efforts in reducing
transaction costs for very small
volume contributors
(de micromis parties). It
outlines cut-off ranges to be
considered in assessing a party's
waste contribution and also
discusses additional reference
documents which may be of
interest to parties who
contributed very small amounts
of waste to hazardous waste
sites.
For further information:
Myron Eng
Office of Site Remediation
Enforcement
(202) 564-2276
Janice Linett
Office of Site Remediation
Enforcement
(202)564-5131
Streamlined Approach for
Settlements With De Minimis
Waste Contributors under
CERCLA Section 122(g)(l)(A)
June 30, 1993
This guidance encourages
EPA Regional offices to take a
more active role in facilitating
de minimi's settlements by
establishing minimum levels of
information necessary before
considering a de minimis
settlement, and providing a
methodology for payment.
For further information:
Gary Worthman
Office of Site Remediation
Enforcement
(202) 564-4292
48
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APPENDIX B
49
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United Statet
Environmental Protection
Ag«ncy
Office Of
Sit. Remediation
Enforcement (2273G)
May 1995
4*EPA Overview of Ability To Pay Guidance
And Models
Tht purpoM of this document \» to identify and briefly describe documents that we relevant to Superfund
ability to pay rATf) analyses. TMdocunenttf*Uimot«wgen«ralcitogori6«(1)documiiitathitr>quir»
of provide for consideration of ttoapUrtytowofprtentialryr^^
deacribt methods to datermlne ATP seMement amounts. The Regions should UN documents in the first group
in making Suptrfund ATP determinations. The Rtgiont may alto UM docuntnts in the second group in
conducting ATPsttttoments until mow specific Superfund ATPsettleniertguidann is provided by Htadquartara.
rith
imbed read the relevant documental In thtb entirety.]
A. GENERAL POUCY DOCUMENTS
The following Agency documents describe situations In which a liable party's ability to pay should to considered.
Although some of the** documents do not dsal specifically with CERCLA Babiity.they represent general Agency
policy regarding the usa of ability to pay in enforcement cases. For this reason, the documents should be relied
upon in situations relating to the ability to pay potential of Superfund PRPs.
1. General CM Penalty Poicy
The Genera/ CMI Penalty Policy '» composed of two
documents: Policy on CMIPtroltfts and A Fram«wo/*
for Statvta-Specifc Approtchts to PtntHy As&ss-
/nsnfx
(EPA G«ntnlEnforoam«in Policy tGM-21)
IFttmtry 18. 1X41
This is an Agency guidance document that 'ettab-
fishes s single set of goals for penalty assessment
in EPA administrative and judicial enforcement
actions.' AMwugh this document is intended to
address penalty considerations. It Is important
because it sets forth the Agency's basic philoso-
phy on ability to pay issues In enforcement cases.
This philosophy Indicates that under the goal of
fair and equitable treatment of the regulated com-
munity, the policy must slow for flexibility to
adjust penalties. The policy lists certain factors
that are to be considered in determining penalty
amounts. One of these factors is 'ability to pay.*
The policy also cautions that reduction of a
penalty based on ability to ipay is only 'appropriate
tttrMaxterttTMvtototorcleartyc^fTMmtratMtnat
ft is entitled to mitigation.'
(EPA Ger»riEnforamtrtPolwtGM-22)
/February 74
Acompanion to the Policyon Ovff flsnafttos, this
policy directs EPA staff on the development of
medium-specific penalty policies for admkiistra-
tivery-impoaed penalties and Judicial and adminls-
trativesstttemertturito statutes enforced oytr*
Agency. It restates and amplifies some of the
concepts Included in the FWicyon CMI PentUta
document <
Uck of an ability to pay is Identified as one circum-
stance of 'compelling public concern* based on
which an enforcement case may be settled for less
thantheeconomicbanafitof noncompliance. This
document states that ability to pay settlements are
allowed if '[rlemoval of the economic benefit
would result in plant closings, bankruptcy, or other
extreme financial burden, and there is an impor-
tant public interest in snowing the firm to continue
In business."
Three additional requirements sre provided for
u»e in ability to pay determinations: Dthe violator
has the burden of demonstrating an inability to pay
claim; 2) "EPA reserves the option, in appropriate
circumstances, of seeking a penalty that might put
a company out of business*; and 3) documanta-
50
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tion of ill ability to pay adjustments mutt be
inducted In case files and other relevant Internal
documents.
2. GuMra on Mim^ i Violator's Abfty to
Pay a CM Penalty (EPA General Enforcement
Policy IGHK6) [December 16,19661
This Agency guidance document amplifies thediscus-
tan in the Central CM/ PWafty Potty relating to the
ueeofthe ability to pay factor in the imposition of civil
penalties. TNaguidanoedooumont Is directed tovranl
civit penalties Imposad on for-proftanttiM that have
not fled for bankruptcy. It eitablishos a standard for
the evaluation of an Inability to pay daim by stating
that 'EPAmay consider using th«8bilitytop»Yf»aor
to adjust a oW penalty whan the assessment of a civil
penalty may result in extreme financial hardship."
Altho^hthisdocument««tablish«3ist»ndvd,itdoe«
not determine a specific dollar amount that a party can
afford to pay. The guidance requires the examination
of various options that a violator has for paying a cMI
penalty and provides that the Agency may request
copies of tax returns and other financial documents to
support daims of inability to pay. The document also
states that If rec*ieetedififomiationBrxX provided th«
Agency should Met the ful penalty amount
'ABEL,' a computer program tot evaluates the fhian-
ciel health offer-profit entitles baaed on the estimated
strength of their internaly-generated cash flows, is
Introduced In this guidance. (A mow dialled descrip-
tion of ABEltsprovidedbetow.) The document notes
Aat even IftheABELanalviit shows aninabilityto pay
a penalty with intemsty generated cash flow, the
Agency should evaluate other possible sources of
payment.
3.* MfrimCTOA Settlement Pofcy
(OSWEfl 19636.01 IDBCtmbtf 5,196*1
This Agency guidance document identifies tencritoria
governing privati party settlements under CERCIA
One criterion is 'ability of the settling parties to pay.'
This document nates that 'the settlement proposal
should discuss the financial condition ofthatparty.and
the practical resutti of pursuing a party for more than
the government can hope to actually recover.'
4.* GuktaMeonDocurmnttoDecWomNotto
Take Cost Recovery Actions
IQSWERf 9832.111 [July 7,19881
This document states that the decision to not take a
cost recovery action may oe oasn on on nnumu UUH
a PRP is not financially viable or that it is unable to pay
a substantial portion of the daim. This guidance
references the WSwrcn Manua/IOSWER 19834.6).
5.' Transmfttil of the Superfund Cost
Recovery Strategy
(OSWEfl 19832.131 [July 29.19881
The Superfund cost recovery strategy requires the
Agency toconsktor the'financial ability of the poten-
tial defendants to satisfyajudgment for the amount of
the daim or to pay a substantial portion of the daim'
whan cackling to issue a cost recovery referral.
6.0 8ubmrtt»l of TerhPokit Settlement
Analysis tor CBKXA Consent Decrees
(OSWER*9S3S.14)(August11,1989]
Commonly known as the'ten point guidance,' this
document makes the same reference to ability to pay
considerations aitt* rtsrimCEflCWSatfsriMrif Pofcy
document that the 'settlement proposal should dis-
cuss the financial condition of [i| party, and the prac-
tical results of pursuing a party for more than the
government can hope to actually recover.'
7.' MaiimPofcyonCEtmSettlemsMlrivoMng
§ a, -.t^t aBil, . ^M i«L,M],|M,| ««J .^
IVwnlGsfMnMii Br IVIlHllwipll HillM
(OSWER19834.13) (December 6.19891
This Agency guidance document describee the
Agency's interim policy for CERCIA settlements wWi
municipalities. Included In medocumemis authority
to include special settlement provisions 'where a.
municipality has successfuly demonstrated to EPA
that they are appropriate (e.g, whefe valid abtfty to
pay or procedural constraints that affect the timing of
payment exist).'
(. final PenaMy Polcy for Sections 3*2.303,394,
311 and 312 of the Emergency Phmkig and
Community RjghMc-Know Act and Section 103
of die Omytnetuhe [nv* onmanul
Compensation and Uebtty Act
IOSWEBI964U)|June13,19901
This penalty policy allows forme reduction ofapenatty
that is 'dearly beyond the financial means of the
violator.' Kretontasmuchofwhatlsstotedineariier
penalty policy document*, induding the use of ABEL
and the type of information that Is to be railed upon in
making an ability to pay determination.
51
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B. DOCUMENTS THAT ASSIST IN
DETERMINING ABILITY TO PAY AMOUNTS
The following documents identify methodologies that may be relied upon in conducting an ability to pay analysis.
Although the documents which follow provide much useful information for determining an ability to pay amount,
none of these documents represent formal Agency guidance directed specifically at Superfund cases.
1. The ABEL Computer Model and
Supporting Documentation
The Agency has developed a computer model that
assists in identifying whether a settlement amount has
the potential to create a financial hardship. The com-
puter program is known as ABEL and the following
three documents. ABEL User's Manual, ABEL User's
Guide, and Supplement to the ABEL User's Manual:
Superfund ABEL, describe the use of, and methodolo-
gies relied upon in performing, an ABEL ability to pay
analysis.
ABEL conducts an ability to pay assessment of a for-
profit corporation. ABEL projects the ability of the for-
profit corporation to pay for the proposed settlement
from future earnings and from a delay in reinvestment
of capital assets.
The ABEL model will calculate certain common finan-
cial ratios that describe the financial strengths and
weaknesses of the for-profit corporation. This part of
the analysis is called a phase one analysis and can be
performed with a minimum of one year of financial
information. ABEL requires at least three years of tax
data to make a phase two projection. The phase two
projection compares the proposed settlement amount
with projected future cash flows of a for-profit corpo-
ration. The phase two projection then provides the
statistical probability that the corporation can pay the
proposed settlement from the projected future cash
flows.
ABEL is designed to be used by those who are not
familiar with financial information. The ABEL docu-
mentation informs enforcement personnel that a per-
son experienced in ability to pay analysis must exam-
ine the financial Information prior to the reduction of a
proposed settlement amount if the ABEL analysis
indicates an inability to pay.
ABEL is not designed to evaluate the ability to pay of
other financial entities such as municipalities, partner-
ships or individuals.
a. ABB. User's Menu*
[October 1991 Version]
This manual provides step- by-step instructionsfor
using the ABEL model. The ABEL User's Manual
describes how the ABEL model can be used in
assessing a tor-profit corporation's ability to pay
one or more of the following expenditures: civil
penalty; environmental dean-up costs; and/or pol-
lution control equipment costs. The User's Manual
also provides background information on key as-
sumptions used in the model (e.g., reinvestment
rate), and how these can be altered by the user.
ABEL User's Guide [October 1991]
This guide is available in two versions, an "uncut"
version for government users of the ABEL model
(which contains confidential information) and a
non-confidential version for outside users of the
model (which is now available for purchase through
the NationalTechnical Information Service(NTIS)K
The government version of this document pro-
vides internal enforcement guidance on how EPA
staff can effectively use the ABEL computer model
in settlement negotiations. Specifically, this docu-
ment describes what additional analyses should
be performed if ABEL predicts that a violator's cash
flow will not be sufficient to pay proposed penalty
and/or cleanup costs.
The User's Guide relies upon 3-5 years of federal
income tax returns to perform the analysts and
also describes other documents that should be
requested from a violator, as well as public sources
of information.
f. SupptamenttotneABELlfosr-iMinuatSuptrfund
ABB. [September 1992 Version)
This supplement to the ABEL User's Manual pro-
vides information on use of the ABEL model for
Superfund calculations. The Superfund ABEL
model is easierto use when estimating the present
value of costs associated with the work that is
agreed to be performed. However, the standard
values utilized by the Superfund ABEL model relax
the criteria for determining a financial hardship.
Accordingly, the Superfund ABEL model may iden-
tify more financial hardship situations than the
standard ABEL model. If the conclusion reached
52
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by the Superfund ABEL model is that the for-profit
corporation has the ability to pay, the chances of
the corporation demonstrating an extreme finan-
cial hardship are small.
2. Beyond ABEL Ability to Pay Guidance
[February 19931
This guidance document is designed to assist EPA
personnel to 'go beyond ABEL" and assess ability to
pay in cases where the ABEL computer model pro-
duces a negative or ambiguous result Because ABEL
is designed as a conservative screening tool that fo-
cuses only on internal cash flow, it may produce a
negative or ambiguous result when a violator has the
ability to pay through other means, such as reduction
of unnecessary expenses, sate of or borrowing against
assets, or assumption of additional debt
The guidance gives step-by-step instructions on how
to Investigate potential sources of funds, and contains
worksheets to guide this analysis and to draw attention
to key information in tax returns and/or other financial
statements. The analysisfocuses on identifying luxury
assets, undervalued assets, loans to or from officers
and shareholders, unnecessary officers' salaries, and
certain other expenses. The result is a more sophisti-
cated analysis than that provided by ABEL
The guidance suggests methods of adjusting an ABEL
input to allow ABEL to estimate the ability to pay of sole
proprietors, partnerships, and SubchapterS corpora-
tions. Also, the guidance provides additional cautions
that help to clarify when a financial analyst should be
consulted.
3. Individual AbHty to Pay Guidance
[June 19921
If a violator files only an individual federal income tax
return, ABEL cannot be used. The Individual Ability to
Pay Guidance-was developed by Industrial Economics,
Inc., the EPA contractor that supports the ABEL model,
for sole proprietor, partnership and individual inability
to pay claims in the State of Iowa's underground
storage tank (LIST) program.
Although this document was not written by EPA, it can
be useful in a caw involving an individual's inability to
pay claim. This document is not a computer program
but provides a method to determine an individual's
ability to pay. In a method that is similar to the ABEL
model, this document draws information from indi-
vidual taxforms, including Form 1040, Form 1040A. or
Form1040EZ.
This document characterizes the financial strengths
and weakness of an individual in comparison to aver-
ages determined from income level, family size and
county of residence. The document relies on income
and expense information to project the availability of
income afterthe payment of identified expensesandto
determine if additional debt capacity exists.
The guidance provides advice on how to make a final
ability to pay determination, including instructions on
topics such as: how to understand the results, when it
is appropriate to do additional research and verifica-
tion (including consultation with a financial analyst),
and how to consider extenuating financial circum-
stances (e.g., current sale or purchase of real estate).
4. Guidance for Calculating Municipal and Not-for-
profit Organizations' Ability to Pay Civil Penal-
ties Using Current Fund Balances [March 19931
This is a pilot guidance document developed by the
Office of Prevention, Pesticides, and Toxic Substances
(OPPTS) for use in determining the ability of govern-
mental entities(municipalities)and other not-for-profit
(NFP) organizations to pay civil penalties. The docu-
ment suggests a method of determining the ability to
pay from unreserved funds. It does not evaluate other
methods of paying for the proposed settlement such
as borrowing, raising taxes or paying over time.
The document describes how to use NFP financial
statements to perform an ability to pay assessment for
three types of organizations: (1) municipalities and
states; (2) private colleges and universities; and (3) NFP
hospitals. This document also contains background
information on financial accounting practices and types
of financial statements used by NFP entities, which
differ from those used by for-profit companies.
5. The Road to Financing. Assessing and
Improving Your Community's CredHworthlness
[September 19921
Developed by the Office of Water, this document
provides brief descriptions of municipal financial char-
acteristics and discusses how changes in these finan-
cial characteristics will project improvement in a
municipality's financial health. It is a useful tool in
describing some of the concepts of assessing the
ability to pay of a municipality. This document may be
useful for those who are unfamiliar with municipal
financial characteristics.
53
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6. financial Capability Guidebook
(March 1984) __
This Office of Water document is to be used to deter-
mine whether a municipality can demonstrate that it
canensureadequatebuildinftoperation, maintenance
and replacernentofapublicly owned treatment works.
The most Important section of Ihis guidebook is the
Supplemental Information Sheet and instiuctions
(pages 52-68). The instructions allow for a character-
iatlon of a municipality that is equivalent to what the
ABELenalysisdoesforabusiness. However, there Is
onemajornoteofcaution. Theenarysisisnotlntended
for a Superfund ability to pay analysis but for the
construction and operation of a publicly owned treat-
mentworks. For this reason, the GuMeooofrprovides
a higher ability to pay estimate than maybeappfcaWe.
7. Financial Review Methodokigy for Wasteweter
Diecharga Noneornplenee Cm*
[September 17, 19841 _ __
This document wes prepared by Peat Marwick, an
accountingflrm,forEPARegionV. The methodology
but it allows for a grerter number of years o< financial
information to be examined and a more detailed dis-
cussion of the financial indicators. The document has
thessmelirnitatkxiastheFmic(a/C«pab««ry6wW»-
book, in that it subjects the municipality to a more
rifl<>rous standard than Superfundabiltty to pay settle-
ments.
8. AWIty to Pn Interrogatories
Uune 16, 19941 _ _
This draft OECA document provides model Interroga-
tories, requestsforproduction,andjudicial and admin-
istrative subpoenas for discovery of information and
documents in eases where ability to pay is an issue.
The interrogatories are intended to be tailored to
specific cases, taking into account the size and struc-
ture of the violating entity.
Separate model interrogatories and requests for pro-
duction of documents are provided for (1) corpora-
tions; and (2) individuals and sole proprietors. Inter-
rogatories to corporations request information ore
wrporatestru<*Ji»and management equity and debt;
parent and subsidiary entities; insurancecoverage;tax
and financial information; assets; HquW**0" <* «*
and claims and judgments. Interrogatories toindividu-
al» and sole proprietors request information on per-
sonal and busiriess8ssets,liabilities,iricome, expenses,
and other financial matters. [NOTE This document
can be released only to government emptoyeesj
9. Ability to Pay Case Memorandum
[August 1.19931
This Office of Enforcement document summarizes all
the significant cases in the area of ability to pay, as of
the date of issuance. The memorandum summarizes
environmental ease law related to topics such as:
application of statutory provisions that require ability
to pay to be considered in cMI penalty assessments
(e.g,seetionl09(aK3)ofCERCLA);whichp8rtyh8Sthe
burden of proving an tbilrty(ormability)to pay; factors
that may be considered in assessing ability to pay;
alternative payment plans; and types of financial infor-
mation that may be presented to a court on ability to
pay issues. [NOTE This document can be released
only to government empte
ADDmONALMTORMATON
Kyour^any/«y Compendium.
Copies of the comptoto Compendklm or individual o^merte may be ordered by EPA personnel from the
Superior* DoeameMCai**f(W3«JWni»reojje*tin9^
33463623 and PB-92-963623; if requesting specific documents, ask for the OSWER document number listed
above.1 Other referenced documents are available from Tracy Glpson BK-ZKWen) of the OSRE Regional
Support Division.
54
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United Slates
Environmental Protection
Agency
Office of
Site Remediation
Enforcement
May 1995
c/EPA Use of Alternative Dispute Resolution
in Enforcement Actions
Introduction
A Iternative Dispute Resolution (ADR) is a tool
r\whiehenhancesth«negotiatingprocess.ADR
is a standard component of EPA's enforcement
program. It should be considered at any point
when negotiations are possible. This fact sheet
answers com monquestions about the use of ADR
in enforcement actions and describes how to use
ADR in your case. This is the first in a series of Fact
Sheets on ADR use.
What is ADR?
ADR is a short-hand term for a set of processes
which assist parties in resolving their disputes
quickly and efficiently. Central to each method of
ADR is the useof an objective third party or neutral.
In this fact sheet the use of the term "ADR" refers
to all methods of ADR. The methods used by the
Agency include the following:
Mediation is the primary ADR tool used by
EPA. It is a process in which a third party, with
no decision-making authority, assists dispu-
tants to reach a voluntary negotiated settle-
ment. In mediation, EPA retains its control of
the case as well as its settlement authority.
Convening involves the use of a third party to
organize disputants for negotiations and as-
sist them in deciding whether to use ADR and
in the selection of an appropriate ADR profes-
sional.
Aflocationistheuseofthirdpartyneutralsto
assist the parries in determining their relative
responsibilities for Superfund site costs.
Fict-findmfl.oftenusedintechnicaldispotes,
involves the use of a third party with subject-
matter expertise to investigate and determine
findings of fact
Arbitration is a decision-making process
which can be binding or non-binding. A third
party hears the dispute and renders a decision.
EPA may enter into binding arbitration forcost
recovery claims below $500,OOOunderCERCLA
122(h)(2),«U.S.C.9622(h)(2).
What is EPA's POlky On Use of ADR?
Use of ADR in appropriate cases has been EPA
policy since 1987 (Guidance on the Use of ADR in
Enforcement Actions, August 1987). The Adminis-
trative Dispute Resolution Act of 1990, (P.L 101-
552), 5 U.S.C. 581, strengthened EPA policy by
encouraging the use of ADR in all federal disputes.
Also, in 1990 the Civil Justice Reform Act was
passed, authorizing that district court judges re-
quire parties to attempt mediation prior to litiga-
tion. A companion to these Acts, the Executive
Order on Civil Justics Reform (No. 12778, October
23,1991), requires all federal enforcement staff to
attempt settlement, and offer use of ADR as appro-
pnate, prior to initiating any litigation.
What is EPA's experience with ADR?
The Agency has used ADR to assist in the resolu-
tion of over 50 enforcement-related disputes to
date. ADR has been used in negotiations arising
under Superfund and the principal environmental
statutes that EPA administers. Mediated negotia-
tions have ranged from two-party Clean Water Act
cases to Superfund disputes involving upwards of
1200 parties.
Participant' in the 1990 ADR pilot for Superfund
cases reported the following benefits: constructive
working relationships were developed; obstacles
to agreement and the reasons therefore were
quickly identified; costs of preparing a case for
DO) referral were eliminated; and ongoing rela-
tionships were preserved.
What arc the benefits of using ADR?
It lowers the transaction costs for resolving the
dispute.
< Mediated negotiations tend to focus more on
resolving real issues, rather than posturing,
and are less likely to get derailed by personal-
ity conflicts.
55
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In mediation, the parties are more likely to
identify settlement options that are tailored to
their particular needs.
It alleviates the time-consuming burdens on
EPAof organizing negotiationsbecauseathird
party neutral is available to handle these tasks.
Th is isparticularly valuable in multi-party cases.
How do I know that ADR is appropriate
fo. my case?
If you can answer the following questions affirma-
tively, then ADR may be appropriate for your case:
Are there present or foreseeable difficulties in
the negotiation which will require time or
resources to overcome in orderto reach settle-
ment?
Is your case negotiable, i.e. no precedent-
setting issues are involved?
Is there enough case information to substanti-
ate the violations)?
Is there sufficient time to negotiate in light of
court or statutory deadlines, or are the parties
willing to sign a tolling agreement (an under-
standing that a statutory deadline for starting
a lawsuit will be extended)?
What ADR fa NOT!
A sign of weakness in the government's case
A sign of weakness in the government attor-
neys' negotiation skills
A depreciation of the government's potential
recovery
A last resort
What ADR services are available?
Assistance regarding the use of ADR is available at
any time by phone from the HQ ADR Team and the
regional ADR Specialists, who are identified at the
end of this fact sheet EPA has an indefinite ser-
vices contract for dispute resolution services with
RESOLVE, a nationally recognized ADR firm, to
provide a wide range of ADR services to case team
members. Services available include confidential
consultation regarding use of ADR in specific cases,
assistance in the location, selection and contract-
ing of ADR professionals, and provision of neutral
party services on behalf of the U.S. Trips to re-
gional offices to assist in reviewing cases appropri-
ate for ADR use can be arranged upon request.
How do I find out if anyone in my
Region has used APR?
Speak with your regional ADR Specialist and get a
copy of recent ADR status reports.
How do I nominate a Superfund, RCRA
corrective action, or Oil Pollution Act
case for ADR?
It is a very simple process. For these disputes the
ORC staff attorney should prepare a 1 -2 page ADR
nomination memorandum
briefly outlining the substance
of the case, the nature of the
dispute, and the reasons that
ADR would be of benefit to re-
gional settlement efforts. This
memorandum will be used as the basis for estab-
lishing a contract with the selected ADR profes-
sional. The ORC staff attorney should forward the
nomination memo to the Regional Counsel, or
designee, who has authority to approve the nomi-
nation.Then the appropriate regional official needs
to commit funding for ADR services.
Consultation with one of the ADR Specialists on
the use of ADR in a case should be obtained before
the case is nominated. A copy of the nomination
memo should be sent to the HQ ADR Liaison and
your regional ADR Specialist A model nomination
memorandum is available on disk from your re-
gional ADR Specialist
What funding is available to pay for
EPA's share of ADR expenses in these
cases?
Beginning in FY '96 funding for ADR services will
shift from HQ to the Regions and will be included
as part of each Region's annual extramural
Superfund budget based on regional need. If any
Region is short of funds, please contact David
Chamberlain, at 202-260-4118, and David
Batson, HQ ADR Liaison, at 703-603-9004.
Additional funding will be provided from the
Office of Site Remediation Enforcement (OSRE)
based on justified need.
56
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What do I do for cases that arise under
other statutes?
For other enforcement cases, the ADR nomination
memorandum should be sent to the Division Di-
rector within the Office of Regulatory Enforcement
who has responsibility for the statute under which
the civil action is brought, with a copy to the HQ
ADR Liaison andyourregionalADR Specialist. The
appropriate media program office is consulted
upon receipt of the nomination. Funding for non-
Superfund cases is approved on a case-by-case
basis.
What contract mechanisms are available
to obtain ADR services?
The following options are available: (1) the indefi-
nite services contract with RESOLVE, which is
managed by the Office of Policy. Planning and
Evaluation (OPPE) (Debbie Dalton, Project Officer,
202-260-5495) and (2) expedited sole source con-
tracting authorized by recent changes to federal
acquisition regulations. The Regional Enforcement
Support Services (ESS) contract may be used to
obtain services to support the ADR neutral's ef-
forts. To date, the RESOLVE contract has been the
primary vehicle used by the ADR program.
A procurement request and other contracting
documents must be submitted for each case to the
appropriate contract official, following regional
approval of the ADR nomination memorandum.
ft takes approximately 30 days to process the
contracting documents through the contracts
office. Models of an ADR procurement request
and other contracting documents are available
on disk from the HQ ADR Team or your regional
ADR Specialist Each Region should designate
a lead staff contact for contract coordination.
Who manages the contract with the
selected ADR neutral?
Each site-specific use of ADR requires either a
separate contract or delivery order which is man-
aged by the nominating region. To establish a
contract or delivery order, the contracts office
requires the designation of a Contracting Officer's
Representative (COR).' The Remedial Project Man-
ager (RPM), On Scene Coordinator (OSC), or other
person familiar with the case may serve as a COR.
How does a case team select and contract
with an ADR neutral for his/her ser-
vices? How tone does this take?
The selection of an appropriate ADR neutral for a
case is by agreement of all parties to the dispute.
The regional/DOJ case team represents theU.S. in
this decision. Assistance in identifying and consid-
ering appropriate neutrals is availablefrom the HQ
ADR Team or through EPA's contractor.
The services of the selected ADR neutral are ob-
tained by all the parties to a dispute by entering a
contract with the neutral. The contract generally
called a "mediation agreement", covers arrange-
ments for sharing and paying the mediator's fees,
the role of the mediator, confidentiality, and the
right of any party to withdraw from the mediation.
An EPA approved model mediation agreement is
available on disk from your regional ADR Special-
ist or from the HQ ADR Team. You should use this
as the basis for your negotiations.
The agreement is negotiated by the case team and
the privateparties, with assistance, if need ed.from
the HQ ADR Team or an ADR expert from RE-
SOLVE. Experience has shown that the model
agreement is generally acceptable to private par-
ties and it should take no longer than two weeks to
obtain a signed agreement
Does a Region have the authority to
sign the agreement with the ADR
professional?
Yes. Once the funding has been committed by the
Agency, the Region, generally the staff attorney,
signs the agreement for EPA.
How much does k usually cost to use
ADR in a case?
The cost of ADR services is determined by
several factors, including the ADR professional's
fees and travel, costs of meeting space, and
the length of settlement discussions. All costs
associated with the selected ADR process are
shared equitably among the parties. EPA staff
should keep the Agency's share payment
commensurate with EPA's interest In the
ADR process. At present, the Agency may
pay 100% of the convening process and up
1 Under the new contracting regulations, all Delivery Oder Project Officers IDOPOsI and Work Ajjjjnment Managm fWAMt)
are referred to aiCOfls.
57
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to 50% of the ADR costs, where the Agency is
a party to the selected ADR process. The
estimated average historic mediation cost to
EPA in Superfund cases is approximately
$20,000. Given the smaller number of parties
generally involved, it is anticipated that the
cost of mediating a RCRA case will be less
expensive than for Superfund actions.
The Agency may, in appropriate circumstances,
help to defray private parties' costs of obtaining
ADR services in allocation deliberations. The
Agency may pay up to 20% of the costs of ADR
services in these situations.
Why must the costs associated with
using ADR in an enforcement actions be
shared equitably by the parties?
Two reasons. First, to enhance the neutrality of the
ADR professional involved, it is important that the
costs be shared byall parties to the extent possible.
Second, several federal statutes, including the
Miscellaneous Receipts Act prohibit an agency
from augmenting its congressfonally-approved
budget with services paid for by outside parties.
Therefore, EPAmust share the costs of i neutral's
services with the other parties to an enforcement
dispute.
ADR professional In a Superfund action
tracked and recoverable as site costs for
cost recovery purposes?
Expenditures by the Agency in support of the
us* of ADR in a Superfund action are cost
recoverable expenses, reimbursement of
which may be obtained through regional settle-
ments or legal action. Regions may exercise
their enforcement discretion regarding
recovery of ADR expenditures. Each ADR case
is assigned a separate delivery order or
contract to allow for site tracking of ADR
expenses.
Is ADR training available?
Yes. A one day overview training on the use of
ADR in enforcement negotiations is offered in all
of the regions each year. Furthermore, there are
ADR components in several other popular EPA
training courses. If you are interested in the
training schedule for the current year call
Rhonda Pierce at 202-2604174.
How do I get copies of ADR guidances,
reports and other related information?
The materials listed below are available at no
charge to EPA employees from the National Tech-
nical Information Service (NTIS) Iphone: 703-487-
4650). You will need to provide NTIS with the
number in brackets.
"Guidance on Use of ADR in Enforcement Cases" ( 13901,
IPB94-963669L OSWER No. 92010-10.
'Guidance on Use of ADR for Litigation in Federal Courts'
(DOJ, 1992), [PB94963-668L OSWER No. 9208XHB.
Enforcement Medialion-StatusonUse of ADR inEnforce-
ment Actions', [PB94963670I, OSWER No. 9208.0-1 1.
"Superfund Enforcement Mediation Region V
Pilot Results', [PB9W6367U OSWER No. 9208.0-12.
"Superfund Enforcement Mediation Case
StudiesMPB94463672l OSWER No. 9208.0-13.
ADR Specialists
Offici NMM Pkml Fail
Rigionl He Tonkin 617/585-1154 565-1141
UarciaLrnel 565J435
Brace Marshall* 513-9(96 573-9662
Region 2 TomUeber 212/637-3158 637-3115
BeniKisssi 637-3192
JlMMddenf 637-4417 637-4429
Region 3 PttHilsnger 21W37-2618 597-3235
Laura Janson' 597-2393 597-3890
Region 4 Simon Mir 404/347-2641 347-5246
«22B2
ChirtoSwin1 347-5059 347-7817
16194
Regions JchnTiehch 312/353-7447 886-7160
TinktHvoV 886-9M6 896-4071
Region 6 MieiSchutee 214/WH049 66S-21«2
jmDahl 665-2151
OflBokhn* 685*713 6654460
Region? B<* RUiarti 913/551-7502 551-7325
Mttotmof 551-7256 551-7063
Region 6 Suzanne Boh* 303094-7591 294-7653
BenyLevene* 293-1843 293-1238
Region9 ShaunaWoodJ 415/744-1360 744-1041
KenMuratore' 744-2373 744-1917
RtgkmlO TadVacfa* 206/553-1218 553-0163
Sttve Mullen' 553-6520 553-0124
Waste Menigement or Haardous Wistt dmsmn contact Other
names ant in ORC.
MAMTiM MM nml to*
ADKLJjison David Batson 7u3/603-9004 603-9117
603-9119
OSRE/RSQ MmdaPvuce 202-20MI74 260-3069
OSftE/PPED ElenKandell 703/603-8996 603-9117
58
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UnwtSMH
Oit«»olEnfu«m«maiK!
Agtnqj
&EPA
Policy Toward Owners of
Property Containing
Contaminated Aquifers
Offin of SM Rwmdiaiion Enkucomnl
Potcy wd Pragim EMkMon DivWon 2273G
This fact sheet summarizes a new EPA policy regarding groundwater contamination. The "Poky
Toward Owners of Property Containing Contaminated Aquifers" was issued as part of EPA's
Brownfields Economic Redevelopment Ininative which helps states, communities, and other
stakeholders in economic redevelopment to work together in a timely manner to prevent, assess, safely
clean up, and sustainably reuse brownfields. Brownfields are abandoned, idled, or under-used industrial
and commercial facilities where expansion or redevelopment is complicated by real or perceived
environmental contamination.
EPA issued this policy to help owners of property to which groundwater contamination has migrated or
is likely to migrate from a source outside the property. This fact sheet is based on EPA's interpretation
of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA,
commonly known as Superfund) and existing EPA guidance. Under the policy, EPA will not take
action to compel such property owners to perform cleanups or to reimburse the agency for cleanup
costs. EPA may also consider de minimis settlements with such owners if they are threatened with law
suits by third parties.
Background
Approximately eighty-five percent of the sites
listed on the National Priorities List involve
some degree of groundwater contamination.
The effects of such contamination are often
widespread because of natural subsurface
processes such as infiltration and groundwater
flow. It is sometimes difficult to determine the
source of groundwater contamination.
Under Section 107(a)(l) of CERCLA (also
found at 42 United States Code § 9607(a)(l)),
any "owner" of contaminated property is
normally liable regardless of fault This section
of CERCLA creates uncertainty about the
liability of owners of land containing
contaminated aquifers who did not cause the
contamination. This uncertainty makes
potential buyers and lenders hesitant to invest in
property containing contaminated groundwater.
The intent of the Contaminated Aquifer Policy
is to lower the barriers to the transfer of
property by reducing the uncertainty regarding
future liability. It is EPA's hope that by
clarifying its approach towards these
landowners, third parties will act accordingly.
59
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Policy Summary
EPA will exercise its enforcement discretion by
not taking action against a property owner to
require clean up or die payment of clean-up
costs where: 1) hazardous substances have
come to the property solely as the result of
subsurface migration in an aquifer from a source
outside the property, and 2) the landowner did
not cause, contribute to, or aggravate the
release or threat of release of any hazardous
substances. Where a property owner is brought
into third party litigation, EPA will consider
entering a de minimis settlement.
Elements of the Policy
There are three major issues which must be
analyzed to determine whether a particular
landowner will be protected from Lability by
this policy:
the landowner's role in the contamination of
the aquifer,
the landowner's relationship to the person
who contaminated the aquifer, and
the existence of any groundwater wells on
the landowner's property that affect the
spread of contamination within the aquifer.
Landowner's Role in the Contamination of
the Aquifer
A landowner seeking protection from liability
under this policy must not have caused or
contributed to the source of contamination.
However, failure to take steps to mitigate or
address groundwater contamination, such as
conducting groundwater investigations or
installing groundwaier remediation systems, will
not, in the absence of exceptional
circumstances, preclude a landowner from the
protection of this policy.
Landowner's Relationship to the Person who
Caused the Aquifer Contamination
First, this policy requires that the original
contamination must not have been caused by an
agent or employee of the landowner. Second,
the property owner must not have a contractual
relationship with the polluter. A contractual
relationship includes a deed, land contract, or
instrument transferring possession. Third,
Superfund requires that the landowner inquire
into the previous ownership and use of the land
to minimize liability. Thus, if the landowner
buys a property from the person who caused the
original contamination after the contamination
occurred, the policy will not apply if the
landowner knew of the disposal of hazardous
substances at the time the property was
acquired. For example, where the property at
issue was originally part of a larger parcel
owned by a person who caused the release and
the property is subdivided and sold to the
current owner, who is aware of the pollution
and the subdivision, there may be a direct or
indirect "contractual relationship" between the
person that caused the release and the current
landowner. In this instance, the owner would
not be protected by the policy.
In contrast, land contracts or instruments
transferring title are not considered contractual
relationships under CERCLA if the land was
acquired after the disposal of the hazardous
substances and the current landowner did not
know, and had no reason to know, that any
hazardous substance had migrated into the land.
The Presence of a Groundwater Well on the
Landowner's Property and its Effects on the
Spread of Contamination in the Aquifer
Since a groundwater well may affect the
migration of contamination in an aquifer, EPA's
policy requires a fact-specific analysis of the
circumstances, including, but not limited to, the
impact of the well and/or the owner's use of it
on the spread or containment of the
contamination in the aquifer.
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Common Questions Regarding
Application of the Policy
"If a prospective buyer knows of aquifer
contamination on a piece of property at the
time of purchase, is he or she automatically
liable for dean-up costs?"
No. In such a case the buyer's liability depends
on the seller's involvement in the aquifer
contamination. If the seller would have
qualified for protection under this policy, the
buyer will be protected. For example, if the
seller of the property was a landowner who
bought the property without knowledge, did not
contribute to the contamination of the aquifer
and had no contractual relationship with the
polluter, then the buyer may take advantage of
this policy, despite knowledge of the aquifer
contamination.
In contrast, if the seller has a contractual
relationship with the polluter and the buyer
knows of the contamination, then this policy
will not protect the buyer.
"If an original parcel of property contains
one section which has been contaminated by
the seller and another uncontaminated
section which is threatened with
contamination migrating through the
aquifer, can a buyer be protected under the
policy if he or she buys the threatened
section of the property?"
The purchase of the threatened parcel separate
from the contaminated parcel establishes a
contractual relationship between the buyer and
the person responsible for the threat. This
policy will not protect such a buyer unless the
buyer can establish that he or she did not know
of the pollution at the time of the purchase and
had no reason to know of the pollution. To
establish such lack of knowledge the buyer must
prove that at the time he acquired the property
he inquired into the previous ownership and
uses of the property.
Protection from
Third Party Law Suits
Finally, EPA will consider de minimis
settlements with landowners who meet the
requirements of this policy if a landowner has
been sued or is threatened witfi uurd-party suits.
A de minimis settlement is an agreement
between the EPA and a landowner who may be
liable for clean up of a small portion of the
hazardous waste at a particular site. To be
eligible for such a settlement, the landowner
must not have handled the hazardous waste and
must not have contributed to its release or the
threat of its release. Once the EPA enters into a
de minimis settlement with a landowner, third
parties may not sue that landowner for the costs
of clean-up operations.
Whether or not the Agency issues a de minimis
settlement, EPA may seek the landowner's full
cooperation (including access to the property)
in evaluating and implementing cleanup at the
site.
For Further Information
This policy was issued an May 24,1995 and
published in the ftdtral Rtgaiir on July 3,1995
(volume 6U, page 34790). You may order a copy of
the policy from the National Technical Information
Service (NTIS). VS. Department of Commerce,
5825 Pott Royal Rd., Springfield, VA 22161.
Orders must reference NTIS accession number
PB96-1W145.
For telephone orders or further information on
placing an order, call NTIS at:
(703)487-4651 for regular service, or
|SOO)5S3-NT1S for rush service.
For orders vii e-mail/Interne!, send lo the following
address
erden@ittts.fttlworU.iot
For more information about the Contaminated
Aquifer Policy, call Ellen KandeU at (703)603-
8996.
61
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United Stales
Environmental Protection
Agency
Office of Enforcement and
Compliance Assurance
December 1995
c/EPA The Effect of Superfund on
Involuntary Acquisitions of
Contaminated Property by
Government Entities
Office ol Site Remediation Enforcement
Quick Reference Fact Sheet
Units of state, local, and federal government sometimes involuntarily acquire contaminated property as a result
of performing their governmental duties. Government entities often wonder whether these acquisitions will result
in Superfund liability. This fact sheet summarizes EPA's policy on Superfund enforcement against government
entities that involuntarily acquire contaminated property. This fact sheet also describes some types of
government actions that EPA believes qualify for a liability exemption or a defense to Superfund liability.
Introduction
EPA's BrownfiekJs Economic Redevelopment Initiative
is designed to help states, communities, and other
stakeholders in economic redevelopment to work to-
gether in a timely manner to prevent, assess, safely
clean up, and sustainably reuse brownfields. Brownfields
are abandoned. Idled, or under-used industrial and
commercial facilities where expansion or redevelop-
ment is complicated by real or perceived environmental
contamination. Many municipalities and other govern-
ment entities are eager for brownfields to be redevel-
oped, but often hesitate to take any steps at these
facilities becausetheyfearthat they will incur Superfund
liability.
This fact sheet answers common questions about the
effect of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA, commonly
known as Superfund, and set forth at 42 United States
Code beginning at Section 9601) on involuntary acqui-
sitions by government entities. EPA hopes thai this fact
sheet will facilitate government entities' plans for rede-
velopment of brownfields and the "brokerage" of those
facilities to prospective purchasers.
What l» an Involuntary acquisition?
EPA considers an acquisition to be Involuntary" if it
meets the following test
The government's interest in, and ultimate owner-
ship of, the property exists only because the ac-
tions ol a non-governmental party give rise to
the government's legal right to control or take
title to the property.
For example, a government's acquisition of property for
which a citizen failed to pay taxes is an Involuntary
acquisition because the citizen's tax delinquency gives
rise to the government's legal right to take title to the
property.
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Will a government entity that Involuntarily
acquires contaminated property be liable
under CERCLA?
To protect certain parties from liability, CERCLA con-
tains both liability exemptions and affirmative defenses
to liability. A party who is exempt from CERCLA liability
with respect to a specified act cannot be held liable
under CERCLA for committing that act. A party who
believes that he or she has an affirmative defense to
CERCLA liability must prove so by a preponderance of
the evidence.
Alter it involuntarily acquires contaminated property, a
unit of stale or local government will generally be ex-
empt from CERCLA liability as an owner or operator. In
addition, the unit of state or local government will have
a somewhat redundant affirmative defense to CERCLA
liability known as a third-party" defense, provided other
requirements for the defense, which are described
below, are met. A federal government entity that invol-
untanly acquires contaminated property and meets the
requirements described below will have a third-party
defense to CERCLA liability.
The requirements for a third-party defense to CERCLA
liability are the following:
The contamination occurred before the government
entity acquired the property;
The government entity exercised due care with
respect to the contamination (ajj,, did not cause,
contribute to, or exacerbate the contamination);
and
The government entity took precautions against
certain acts of the party that caused the contamina-
tion and against the consequences of those acts.
A government entity will npj have a CERCLA liability
exemption or defense if it has caused or contributed to
the release or threatened release of contamination from
the property. As a result, acquiring property involun-
tarily does not unconditionally or permanently insulate a
government entity from CERCLA liability. Government
entities should therefore ensure that they do not cause
or contribute to the actual or potential release of hazard-
ous substances at facilities that they have acquired
involuntarily. For more information, see 42 U.S.C.
9601 (20)(D), 9607(b)(3), and 9601 (35)(A) and (D).
It is also important to notethattheliability exemption and
defense described above do not shield government
entities from any potential liability that they may have as
generators' or "transporters" of hazardous substances
under CERCLA. For additional information, see 42
U.S.C. 9607(a).
What are some examples of involuntary
acquisition*?
CERCLA provides a non-exhaustive list of examples of
involuntary acquisitions by government entities. These
examples include acquisitions following abandon-
ment, bankruptcy, tax delinquency, escheat (the
transfer of a deceased person's property to the govern-
ment when there are no competent heirs to the prop-
erty), and other circumstances in which the govern-
ment involuntarily obtains title by virtue of Its func-
tion as a sovereign.
What is EPA's official policy regarding CERCLA
enforcement against government entities that
Involuntarily acquire contaminated property?
In 1992, EPA issued its Rute on Lender Liability Under
CERCLA fRule"), 57 Federal Register 18344 (April 29,
1992). The Rule included a discussion of involuntary
acquisitions by government entities. In 1994, the Rule
was invalidated by the court.
In September 1995, EPA and the U.S. Department of
Justice (DOJ) issued their "Policy on CERCLA Enforce-
ment Against Lenders and Government Entities that
Acquire Property Involuntarily ("Lender Policy"). In the
document EPA and DOJ reaffirm their intentions to
follow the provisions of the Rule as enforcement policy.
The Lender Policy advises EPA and DOJ personnel to
consult both the Rule and its preamble while exercising
theirenforcement discretion with respect to government
entities that acquire property involuntarily. Most of the
relevant portions of the Rule and preamble have been
summarized in this fact sheet.
Under the Lender Policy, EPA has expanded the ex-
amples listed in CERCLA by describing the following
categories of involuntary acquisitions:
> Acquisitions made by government entities acting
as a conservator or receiver pursuant to a ckur
and direct statutory mandate or regulatory au-
thority (such as acquisition of the security interests
or properties of failed private lending or depository
institutions);
Acquisitions by government entities through fore-
closure and its equivalents while administering
a governmental loan, loan guarantee, or loan
insurance program; and
Acquisitions by government entities pursuant to
seizure or forfeiture authority.
63
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Similar to the examples listed in CERCLA, EPA's list of
categories of involuntary acquisitions is non-exhaus-
tive. To detemwie whether an activity not listed in
CERCLA or under the Lender Policy is an Involuntary
acquisition,* one should analyze whether the actions of
a non-governmental party give rise to the government's
legal right to control or take title to the property.
If a government entity takes some sort of
voluntary action before acquiring the property,
can the acquisition itill be considered "invol-
untary^?
Yes. Involuntary acquisitions, including the examples
listed in CERCLA, generally require some sort of discre-
tionary, volitional action by the government. A govern-
ment entity need not be completely 'passive" in order for
the acquisition to be considered "involuntary* lor pur-
poses of CERCLA. For further discussion, see 57 Fed.
Reg. 18372 and 18381.
Will a government entity that Involuntarily
acquires contaminated property be liable under
CERCLA to potentially responsible parties and
other non-federal entitles?
If a unit of state or local government involuntanly ac-
quires property through any of the means listed in
CERCLA, it will be exempt from CERCLA liability as an
owner or operator. In addition, any government entity
win have a third-party defense to CERCLA liability if all
relevant requirements for that defense are met (see
above).
If a government entity acquires property through any
other means, rt appears likelybased on the way that
courts have treated lender issues during the last few
years that a court would apply principles and ratio-
nale that are consistent with EPA and DOJ's Lender
Policy. Analysis of these acquisitions may require an
examination of case law and state or local laws.
If someone dies and leaves contaminated
property to a government entity, Is this
considered an Involuntary acquisition?
No, this type of property transfer is not considered an
involuntary acquisition under CERCLA. However,
CERCLA provides a third-party defense for parties that
acquire property by inheritance or bequest (a gift given
through a will). Thus, a government entity that acquires
property in this manner will have a thM-party defense
to CERCLA liability if all relevant requirements of that
defense are met and the government entity has not
caused or contributed to the release or threatened
release of contamination from the property (see above).
For more information, see 42 U.S.C. 9607(b)(3) and
9601 (35)(A) and (D).
Will a government entity that uses its power of
eminent domain be liable under CERCLA?
After a government entity acquires property through the
exercise of eminent domain (the government's power to
take pnvate property for public use) by purchase or
condemnation, it will h?ve a third-party defense to
CERCLA liability if all requirements for that defense are
met (see above). For more information, see 42 U.S.C.
9607(b)(3) and 9601 (35)(A).
Will parties that purchase contaminated prop-
erty from government entitles also be exempt
from CERCLA liability?
No. Nothing in CERCLA allows non-governmental
parties to be exempt from liability after they knowingly
purchase contaminated property. However, EPA en-
courages prospective purchasers of contaminated prop-
erty to contact their state environmental agencies to
discuss these properties on a site-by-site basis. At sites
where an EPA action has been taken, is ongoing, or is
anticipated to be undertaken, various tools, including
"prospective purchaser agreements," may be an option.
For Further Information
The Lender Policy was published in Iht Federal
flejisrtrm Volume 60, Number 237,al pages 63517
to 63519 (December 11,1995).
You may order copies of the Lender Policy from the
National Technical Information Service (NTIS), U.S.
Department of Commerce, 5285 Port Royal Rd.,
Springfield, VA 22161. Orden must reference NTIS
accession number PB9M3449S. For telephone or-
ders or further information on placing an order, call
NTIS atTOMIT-ttSO lor regular service or 800-55J-
MTIS for msh service. For orders via e-mail/Internet,
send to the loBowing address:
ordtrtOntltJedworld.gov
K you have quettiont about thlt fact thttt, con-
tact Laura Bulatao of EPA't Office of SHe
Remediation Enloreement at (202) 58W028.
64
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xc/EPA
UnM Stales
EnvramenOI Pnxecton
Office of SM Rtmediatnn Enfbicenwit
Policy and Program Evaluate! Division 2273A
onceafEntommnlinl
33M.9MO'
Using Supplemental
Environmental Projects to
Facilitate Brownfields
Redevelopment
In April 1998, EPA issued the final "Supplemental Environmental Projects Policy." In that policy EPA
encourages the use of Supplemental Environmental Projects in the settlement of environmental enforcement
actions. Using SEPs to assess or cleanup brownfield properties is an effective way to enhance the
environmental quality and economic vitality of areas in which the enforcement actions were necessary.
Introduction
In settlements of environmental enforcement
cases, defendant/respondents often pay civil
penalties. EPA encourages parties to include
Supplemental Environmental Projects (SEPs) in
these settlements and will take SEPs into account
in setting appropriate penalties. While penalties
play an important role in deterring environmental
and public health violations, SEPs can play an
additional role in securing significant environmental
and public health protection and improvement.
EPA's final Supplemental Environmental Projects
Policy (SEP Policy) describes seven categories of
SEPs, the legal guidelines for designing such
projects, and the methodology for calculating
penalty credits. In certain cases, SEPs may
facilitate the reuse of "brownfield" property. This
fact sheet answers common questions about how
SEPs can be used in the brownfields context.
What are Brownfalds?
EPA defines brownfields as abandoned, idled, or
under-used industrial and commercial facilities
where expansion or redevelopment is complicated
by real or perceived environmental contamination.
In marry cases assessment of the environmental
condition of a property is all that is necessary to
spur its reuse. Through the Brownfields Economic
Development Initiative, EPA has developed a
number of tools to prevent, assess, safely cleanup
and promote the sustainable reuse of brownfields.
SEPs are one of the tools that can be used at
brownfields properties.
What is a SEP?
A SEP is an environmentally beneficial project that
a defendant/respondent agrees to undertake in
settlement of a civil penalty action, but that the
defendant/respondent is not otherwise legally
required to perform. In return, a percentage of the
SEP's cost is considered as a factor in establishing
the amount of a final cash penalty. SEPs enhance
the environmental quality of communities that
have been put at risk due to the violation of an
environmental law.
Meeting Legal Requirements
The SEP Policy has been carefully structured to
ensure that each SEP negotiated by EPA is within
the Agency's authority and consistent with
statutory and Constitutional requirements.
Although all of the legal requirements in the Policy
must be met when considering a SEP at a
brownfield, the following requirements are
particularly important:
65
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SEPs at Brownfieldi Cannot Include Action that
the Defendant/Respondent is Otherwise Legally
Required to Perform
Activities at a brownfield site (or which the
defendant/respondent is otherwise legally required
to perform under federal, state, or local law or
regulation cannot constitute a SEP. This
restriction includes actions that the
defendant/respondent is likely to be required to
perform 111 as injunctive relief in any action
brought by EPA or another regulatory agency, or
12) as part of an order or existing settlement in
another legal action. This restriction does not
pertain to actions that a regulatory agency could
compel the defendant/respondent to undertake if
the Agency is unlikely to exercise that authority.
As a general rule, if a party owns a brownfield or
is responsible for the primary environmental
degradation at a site, assessment or cleanup
activities cannot constitute a SEP.
SEPs at Brownfields Require an Adequate Nexus
between trig Violation and tin Project
The SEP Policy requires that a relationship, or
nexus, exist between the violation and the
proposed project. A SEP at a brownfield will
generally satisfy the nexus requirement if the
action enhances the overall public health or
environmental quality of the area put at risk by the
violation.
A SEP is not required to be at the same facility
where the violation occurred provided that it is
within the same ecosystem or within the
immediate geographical area. In general, the
nexus requirement will be satisfied if the
brownfield is within a 50 mile radius of the site
from which the violation occurred. However,
location alone is not sufficient to satisfy the nexus
requirement the environment where the
brownfield is located must be affected or
potentially threatened by the violation.
A relationship between the statutory authority for
the penalty and the nature of the SEP is not
required in order for the nexus test to be met.
Therefore, the violation need not relate to
hazardous waste or contaminated properties in
order for EPA to consider a SEP at a brownfield.
(e.g.. in the case of a Clean Air Act violation, EPA
could approve a SEP at a brownfield).
SEPs at Browntlelds Cannot Include Action that
the Federal Government i* Likely to Undertake or
Compel Another to Undertake
If EPA or another federal agency has a statutory
obligation to assess, investigate, or take other
response actions at a brownfield, or to issue an
order compelling another to take such action, the
Agency may not negotiate a SEP whereby the
defendant/respondent carries out those activities.
As a general rule, SEPs are inappropriate at the
following site types because of EPA's statutory
obligations:
sites on the National Priorities List under the
Comprehensive Environmental Response,
Compensation, and liability Act (CERCLA), 5
105, 40 CFR Part 300, Appendix B;
sites where the federal government is planning
or conducting a removal action pursuant to
CERCLA ! 104la| and the National Oil and
Hazardous Substances Pollution Contingency
Plan, 40 CFR ! 300.415; and
sites for which the defendant/respondent or
other party would likely be ordered to perform
an assessment, response, or remediation
activity pursuant to CERCLA 5 106, the
Resource Conservation and Recovery Act
(RCRA), 5 3013, 5 7003, 5 3008(h), the
Clean Water Act (CWA! i 311, and other
federal law.
SEPs may b* Performed at BrownlMd*
Involuntariry Acquired by MunldpaMes
As stated above, if EPA would likely issue an order
compelling a Party to cleanup a brownfield, such
remedial action cannot be the subject of a SEP.
Pursuant to the portion of the CERCLA Lender
Liability Rule addressing involuntary acquisitions,
40 C.F.R. § 300.115, the Agency will not issue a
remediation order to a municipality that has
involuntarily acquired a brownfield even if the
Agency would otherwise issue such an order to a
private owner. Therefore, if
(1) a brownfield is acquired involuntarily by a
local government,
|2) there are no other potential liable parties,
and
(3) the known level of contamination would not
compel the Agency to take action itself,
a SEP at this property would be appropriate.
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SEPs May B« Limited at Brownfields that Received
Federal Funds
A SEP cannot provide a municipality, state, or
other entity that has received a federal Brownfields
Assessment Demonstration Pilot or other federal
brownfields grant with additional funds to perform
a specific task identified within the assistance
agreement. If a defendant/respondent proposes a
SEP whereby the party provides money to a local
government to assess or cleanup a brownfield, the
municipality must not have received a federal grent
to carry out the same work. Similarly, a
defendant/respondent cannot on its own undertake
assessment or other response work at a brownfield
when a grant recipient has received federal funds
to undertake the same project. A SEP could,
however, include additional cleanup activities at a
site so long as those activities are not the same as
those performed with federal brownfield funding.
For example, at a site which a federal Brownfields
Targeted Site Assessment is performed, a SEP that
cleans up the same site would be an appropriate
protect (provided that a CERCLA 104(a) removal
action is not warranted).
Selecting an Appropriate SEP
Activity for a Brownfield Site
The SEP Policy identifies two categories of SEPs
that are appropriate for brownfields.
Environmental Quality Assessment Projects
In general terms, environmental quality
assessments involve investigating or monitoring
the environmental media at a property. To be
eligible as SEPs, such activities must be conducted
in accordance with recognized protocols, if
applicable, for the type of work to be undertaken.
Assessment projects may not, as indicated,
include work that the federal government would
undertake itself or issue an order to accomplish.
Therefore if a SEP involves an assessment of site
conditions at a brownfield, the site must not be
one where EPA is planning or conducting
assessment activities. Both CERCLIS and EPA's
P.e-CERCLIS Screening Guidance are useful to
determine whether a federal assessment is
warranted or planned.
Environmental Restoration Projects
For sites at which contamination does exist, but
where an EPA response action or order to a party
is not warranted, a SEP may involve removing or
remediating contaminated media or material.
Restoration SEPs can involve restoring natural
environments, such as ecosystems, or man-made
environments, such as facilities and buildings.
Creating conservation land, such as transforming
a former landfill into wilderness land may be an
appropriate SEP. The removal of substances that
the federal government does not have clear
authority to address, such as contained asbestos
or lead paint, may also constitute an appropriate
restoration project.
Community Input
No one can judge the value to a community of an
assessment or cleanup project at a brownfield
better than the community in which the site is
located. Local communities are the most affected
by environmental violations, and have the most to
gain by SEPs that address their concerns.
Therefore, in appropriate cases local communities
should be afforded an opportunity to comment on
and contribute to the design of proposed SEPs at
brownfield sites. Accordingly, Regions are
encouraged to promote public involvement in
accordance with the Community Input procedures
set forth within the SEP Policy.
Evaluation Checklist for SEPs
at Brownfields
On the next page, two examples are provided to
demonstrate typical proposals Regions may receive
from parties that wish conduct SEPs at
brownfields. One of the proposals would be
approved and the other would not. A checklist of
questions along with answers is provided to
demonstrate the analysis Regions should apply
when considering such requests.
Further InformMlon: If you have any questions regarding this fact sheet, please contact David Gordon at
(202) 564-5147 within the Office of Site Remediation Enforcement. To access the SEP Policy on the
internet, open page http://es.epa.oov/oeca/sep/quiddoc.html. For Information about EPA's Brownfield
Economic Development Initiative go to page http://www.eoa.QOV/brownfields.
3
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Hypothetical A:
Hypothetical B:
The Company A owns and operates a manufacturing facility m
downtown Cityvilte The company uses solvents as part of its
manufacturing process During its operation. Company A
discharges wistewaier into the Running River. EPA alleges that
on at least one occasion, the level of servants in the
wastewatei exceeded the level specified in EPA's effluent
standards under the Clean Water Act.
EPA filed a civil complaint seeking penalties for ti» CWA
violation. Company A proposed doing a SEP to partly reduce
the penalty. The project involves assessing the envronmenta!
conditions of a nearby abandoned lot. The lot is owned not by
the Company, but by the Cityvil* government, which obtained
title from the previous owner via tax foreclosure. To date,
Crtyville has been attempting to interest developers m the
property but to no avail due to concerns regarding possible
contamination from a pnor industrial operation at the tot. To
determine the extent of contamnation, Chyvike recently
received a federal Brownfnlds Assessment Demonstration Pilot.
Company B owns and operates a factory m downtown
Springfield EPA conducted an inspection of the factory's air
emissions and determined that the Company has violated
certain Clean A» Act (CAA) standards resulting in the release
of air pollutants into the nearby neighborhood.
EPA filed a civil complaint seeking penalties for the CAA
violations. Company B proposed doing a SEP that involves the
cleanup of debris at an abandoned parcel located several blocks
away, downwind from Company B's factory The lot is filled
with used tires and abandoned trash, and is infested with
vermin. The lot is the site of a former bakery which long ago
went bankrupt. There is no history of any past industrial
operation on site.
CHECKLIST
a Does the project contribute te the revitisiieoort of en abandoned, ided. or under-used Industrial or commercial property where
redeiielofjiiie«he» been cemp»cated by reel or parcel
A. Yea. Conducting soil sampling wi help revrtaiie the abandoned lot because it w* resolve the Questionable envawtmental condition
ol the property that has discouraged developers.
B. Yes. Cleaning up [ha used Ires and trash and addressing the vermin problem at this former bakery site will make the property more
attractive to developers.
wouW othsrarta ftely l»
o Dees die project include actions that me oWenderrtfre
or local law or refutation? Is there court or edmraslrativa order or Miring settlement agreement that wouU obigete the
defendant/respondent to undertake the proposed project?
A. No. Company A does not own the property, and there is no reason to suspect that Company A would be responsible tor any
contamnation that may be discovered M the Ma.
I. No. Company B does not own tha property, and then is no reason to suspect that the company would be required under federal, state,
or local law to remove debns from the site
D Is there wadei^jataneim between the vloujtton and ttw brown«ekl7 la the project within the same ecosystem or waNn a M rate
radial of tha fadsHy where the vioktSori occurred?
A. Yes. Tha site is located dose to the Company's licikty, and the proposed SEP addresses tha same ecosystem and human population
threatened by the Company's wsstewaler ducharge
I. Yes. The abandoned parcel is located downwnd of Company B's factory. The proposed SEP addresses the same ecosystem and
human population threatened by the 4egal air emauions
0 Does the SE?so*esserrvlrore«eriuJtori»C
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APPENDIX C
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Model Prospective Purchaser Agreement
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION
IN THE MATTER OF: [name]
[Docket Number]
UNDER THE AUTHORITY OF THE ) AGREEMENT AND COVENANT
COMPREHENSIVE ENVIRONMENTAL ) NOT TO SUE [Insert
RESPONSE, COMPENSATION, AND ) Settling Respondent's
LIABILITY ACT OF 1980, 42 U.S.C. ) Name]
? 9601, et seq., as amended )
[state law, if appropriate] )
I. INTRODUCTION
This Agreement and Covenant Not to Sue ("Agreement") is made and entered
into by and between the United States Environmental Protection Agency ("EPA") [state
of ] and [insert name of Settling Respondent] (collectively the
"Parties").
EPA enters into this Agreement pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"), 42
U.S.C. ? 9601, et seq. [If the state is a party, insert "The State of , enters into
this Agreement pursuant to [cite relevant state authority.]" and make appropriate
reference to state with respect to affected provisions, including payment or work to be
performed].
[Provide introductory information, consistent with Definitions and Statement of
Facts, about the party purchasing the contaminated property including, name ("Settling
Respondent"), address, corporate status if applicable and include proposed use of the
property by prospective purchaser. Provide name, location and description of Site.]
The Parties agree to undertake all actions required by the terms and conditions
of this Agreement. The purpose of this Agreement is to settle and resolve, subject to
reservations and limitations contained in Sections VII, VIII, IX, and X [If this Agreement
contains a separate section for Settling Respondent's reservations, add section number],
the potential liability of the Settling Respondent for the Existing Contamination at the
Property which would otherwise result from Settling Respondent becoming the owner of
the property.
The Parties agree that the Settling Respondent's entry into this Agreement, and
the actions undertaken by the Settling Respondent in accordance with the Agreement, do
not constitute an admission of any liability by the Settling Respondent.
The resolution of this potential liability, in exchange for provision by the
Settling Respondent to EPA [and the state] of a substantial benefit, is in the public
interest.
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n. DEFINITIONS
Unless otherwise expressly provided herein, terms used in this Agreement
which are defined in CERCLA or in regulations promulgated under CERCLA shall have
the meaning assigned to them in CERCLA or in such regulations, including any
amendments thereto.
1. "EPA" shall mean the United States Environmental Protection Agency and
any successor departments or agencies of the United States.
2. "Existing Contamination" shall mean any hazardous substances, pollutants
or contaminants, present or existing on or under the Site as of the effective date of this
Agreement.
3. "Parties" shall mean EPA, [State of ], and the Settling
Respondent.
4. "Property" shall mean that portion of the Site which is described in Exhibit
1 of this Agreement.
5. "Settling Respondent" shall mean .
6. "Site" shall mean the [Superfund] Site, encompassing approximately
acres, located at [address or description of location] in [name of city, county,
and State], and depicted generally on the map attached as Exhibit 2. The Site shall
include the Property, and all areas to which hazardous substances and/or pollutants or
contaminants, have come to be located [provide a more specific definition of the Site
where possible; may also wish to include within Site description structures, USTs, etc].
7. "United States" shall mean the United States of America, its departments,
agencies, and instrumentalities.
HI. STATEMENT OF FACTS
8. [Include only those facts relating to the Site that are relevant to the covenant
being provided the prospective purchaser. Avoid adding information that relates only to
actions or parties that are outside of this Agreement.]
9. The Settling Respondent represents, and for the purposes of this Agreement
EPA [and the state] relies on those representations, that Settling Respondent's
involvement with the Property and the Site has been limited to the following: [Provide
facts of any involvement by Settling Respondent with the Site, for example performing
an environmental audit, or if Settling Respondent has had no involvement with the Site
so state.].
IV. PAYMENT
10. In consideration of and in exchange for the United States' Covenant Not to
Sue in Section VTH herein [and Removal of Lien in Section XXI herein if that is part of
the consideration for the agreement], Settling Respondent agrees to pay to EPA the sum
of $ , within days of the effective date of this Agreement. [A separate
section should be added if the consideration is work to be performed.] The Settling
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Respondent shall make all payments required by this Agreement in the form of a certified
check or checks made payable to "EPA Hazardous Substance Superfund," referencing the
EPA Region, EPA Docket number, and Site/Spill ID* [insert 4-digit no.; first
2 numbers represent Region, second 2 numbers are Region's Site/Spill ID no.], [DOJ case
number , if applicable] and name and address of Settling Respondent, [insert
Regional Superfund Lockbox address where payment should be sent]. Notice of payment
shall be sent to those persons listed in Section XV (Notices and Submissions) and to EPA
Region Financial Management Officer [insert address].
11. Amounts due and owing pursuant to the terms of this Agreement but not
paid in accordance with the terms of this Agreement shall accrue interest at the rate
established pursuant to Section 107(a) of CERCLA, 42 U.S.C. ? 9607(a), compounded on
an annual basis.
[ .] [WORK TO BE PERFORMED]
[Include this section and other appropriate provisions relating to performance
of the work, such as financial assurance, agency approvals, reporting, etc., where work to
be performed is the consideration for the Agreement.
. Statement of Work attached as Exhibit 3.]
V. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
12. Commencing upon the date that it acquires title to the Property, Settling
Respondent agrees to provide to EPA [and the state] its authorized officers, employees,
representatives, and all other persons performing response actions under EPA [or state]
oversight, an irrevocable right of access at all reasonable times to the Property and to any
other property to which access is required for the implementation of response actions at
the Site, to the extent access to such other property is controlled by the Settling
Respondent, for the purposes of performing and overseeing response actions at the Site
under federal [and state] law. EPA agrees to provide reasonable notice to the Settling
Respondent of the timing of response actions to be undertaken at the Property.
Notwithstanding any provision of this Agreement, EPA retains all of its authorities and
rights, including enforcement authorities related thereto, under CERCLA, the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. ?
6901,("RCRA") et. seq., and any other applicable statute or regulation, including any
amendments thereto.
13. Within 30 days after the effective date of this Agreement, the Settling
Respondent shall record a certified copy of this Agreement with the Recorder's Office [or
Registry of Deeds or other appropriate office], County, State of
. Thereafter, each deed, title, or other instrument conveying an
interest in the Property shall contain a notice stating that the Property is subject to this
Agreement. A copy of these documents should be sent to the persons listed in Section XV
(Notices and Submissions).
14. The Settling Respondent shall ensure that assignees, successors in interest,
lessees, and sublessees, of the Property shall provide the same access and cooperation.
The Settling Respondent shall ensure that a copy of this Agreement is provided to any
current lessee or sublessee on the Property as of the effective date of this Agreement and
shall ensure that any subsequent leases, subleases, assignments or transfers of the
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Property or an interest in the Property are consistent with this Section, and Section XI
(Parties Bound/Transfer of Covenant), of the Agreement [and where appropriate. Section
(Work to be Performed)].
VI. DUE CARE/COOPERATION
15. The Settling Respondent shall exercise due care at the Site with
respect to the Existing Contamination and shall comply with all applicable local, State,
and federal laws and regulations. The Settling Respondent recognizes that the
implementation of response actions at the Site may interfere with the Settling
Respondent's use of the Property, and may require closure of its operations or a part
thereof. The Settling Respondent agrees to cooperate fully with EPA in the
implementation of response actions at the Site and further agrees not to interfere with
such response actions. EPA agrees, consistent with its responsibilities under applicable
law, to use reasonable efforts to minimize any interference with the Settling Respondent's
operations by such entry and response. In the event the Settling Respondent becomes
aware of any action or occurrence which causes or threatens a release of hazardous
substances, pollutants or contaminants at or from the Site that constitutes an emergency
situation or may present an immediate threat to public health or welfare or the
environment, Settling Respondent shall immediately take all appropriate action to
prevent, abate, or minimize such release or threat of release, and shall, in addition to
complying with any applicable notification requirements under Section 103 of CERCLA,
42 U.S.C. 79603, or any other law, immediately notify EPA of such release or threatened
release.
Vn. CERTIFICATION
16. By entering into this agreement, the Settling Respondent certifies that to
the best of its knowledge and belief it has fully and accurately disclosed to EPA [and the
state] all information known to Settling Respondent and all information in the possession
or control of its officers, directors, employees, contractors and agents which relates in any
way to any Existing Contamination or any past or potential future release of hazardous
substances, pollutants or contaminants at or from the Site and to its qualification for this
Agreement. The Settling Respondent also certifies that to the best of its knowledge and
belief it has not caused or contributed to a release or threat of release of hazardous
substances or pollutants or contaminants at the Site. If the United States [and the state]
determines that information provided by Settling Respondent is not materially accurate
and complete, the Agreement, within the sole discretion of the United States, shall be null
and void and the United States [and the state] reserves all rights it [they] may have.
VIE. UNITED STATES' COVENANT NOT TO SUE
17. Subject to the Reservation of Rights in Section IX of this Agreement, upon
payment of the amount specified in Section IV (Payment), of this Agreement [if
consideration for Agreement is work to be performed, insert, as appropriate, "and upon
completion of the work specified in Section (Work to Be Performed) to the
satisfaction of EPA"], the United States [and the state] covenants not to sue or take any
other civil or administrative action against Settling Respondent for any and all civil
liability for injunctive relief or reimbursement of response costs pursuant to Sections 106
or 107(a) of CERCLA, 42 U.S.C. ?? 9606 or 9607(a) [and state law cite] with respect to
the Existing Contamination.
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IX. RESERVATION OF RIGHTS
18. The covenant not to sue set forth in Section VIII above does not pertain to
any matters other than those expressly specified in Section VHI (United States' Covenant
Not to Sue). The United States [and the State] reserves and the Agreement is without
prejudice to all rights against Settling Respondent with respect to all other matters,
including but not limited to, the following:
(a) claims based.on a failure by Settling Respondent to meet a requirement of
this Agreement, including but not limited to Section IV (Payment), Section V (Access/
Notice to Successors in Interest), Section VI (Due Care/Cooperation), Section XIV
(Payment of Costs, [and, if appropriate, Section (Work to be Performed)];
(b) any liability resulting from past or future releases of hazardous substances,
pollutants or contaminants, at or from the Site caused or contributed to by Settling
Respondent, its successors, assignees, lessees or sublessees;
(c) any liability resulting from exacerbation by Settling Respondent, its
successors, assignees, lessees or sublessees, of Existing Contamination;
(d) any liability resulting from the release or threat of release of hazardous
substances, pollutants or contaminants, at the Site after the effective date of this
Agreement, not within the definition of Existing Contamination;
(e) criminal liability;
(f) liability for damages for injury to, destruction of, or loss of natural
resources, and for the costs of any natural resource damage assessment incurred by
federal agencies other than EPA; and
(g) liability for violations of local, State or federal law or regulations.
19. With respect to any claim or cause of action asserted by the United States
[or the state], the Settling Respondent shall bear the burden of proving that the claim or
cause of action, or any part thereof, is attributable solely to Existing Contamination.
20. Nothing in this Agreement is intended as a release or covenant not to sue
for any claim or cause of action, administrative or judicial, civil or criminal, past or
future, in law or in equity, which the United States [or the state] may have against any
person, firm, corporation or other entity not a party to this Agreement.
21. Nothing in this Agreement is intended to limit the right of EPA [or the
state] to undertake future response actions at the Site or to seek to compel parties other
than the Settling Respondent to perform or pay for response actions at the Site. Nothing
in this Agreement shall in any way restrict or limit the nature or scope of response actions
which may be taken or be required by EPA [or the state] in exercising its authority under
federal [or state ] law. Settling Respondent acknowledges that it is purchasing property
where response actions may be required.
X. SETTLING RESPONDENT'S COVENANT NOT TO SUE
22. In consideration of the United States' Covenant Not To Sue in Section VIII
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of this Agreement, the Settling Respondent hereby covenants not to sue and not to assert
any claims or causes of action against the United States [or the state], its authorized
officers, employees, or representatives with respect to the Site or this Agreement,
including but not limited to, any direct or indirect claims for reimbursement from the
Hazardous Substance Superfund established pursuant to the Internal Revenue Code, 26
U.S.C. ? 9507, through CERCLA Sections 106(b)(2), 111, 112, 113, or any other
provision of law, any claim against the United States, including any department, agency
or instrumentality of the United States under CERCLA Sections 107 or 113 related to the
Site, or any claims arising out of response activities at the Site, including claims based on
EPA's oversight of such activities or approval of plans for such activities.
23. The Settling Respondent reserves, and this Agreement is without prejudice
to, actions against the United States based on negligent actions taken directly by the
United States, not including oversight or approval of the Settling Respondent's plans or
activities, that are brought pursuant to any statute other than CERCLA or RCRA and for
which the waiver of sovereign immunity is found in a statute other than CERCLA or
RCRA. Nothing herein shall be deemed to constitute preauthorization of a claim within
the meaning of Section 111 of CERCLA, 42 U.S.C. ? 9611, or 40 C.F.R. ? 300.700(d).
XI. PARTIES BOUND/TRANSFER OF COVENANT
24. This Agreement shall apply to and be binding upon the United States, [and
the state], and shall apply to and be binding on the Settling Respondent, its officers,
directors, employees, and agents. Each signatory of a Party to this Agreement represents
that he or she is fully authorized to enter into the terms and conditions of this Agreement
and to legally bind such Party.
25. Notwithstanding any other provisions of this Agreement, all of the rights,
benefits and obligations conferred upon Settling Respondent under this Agreement may
be assigned or transferred to any person with the prior written consent of EPA [and the
state] in its sole discretion.
26. The Settling Respondent agrees to pay the reasonable costs incurred by
EPA [and the state] to review any subsequent requests for consent to assign or transfer the
Property.
27. In the event of an assignment or transfer of the Property or an assignment
or transfer of an interest in the Property, the assignor or transferor shall continue to be
bound by all the terms and conditions, and subject to all the benefits, of this Agreement
except as EPA [the state] and the assignor or transferor agree otherwise and modify this
Agreement, in writing, accordingly. Moreover, prior to or simultaneous with any
assignment or transfer of the Property, the assignee or transferee must consent in writing
to be bound by the terms of this Agreement including but not limited to the certification
requirement in Section VII of this Agreement in order for the Covenant Not to Sue in
Section VIII to be available to that party. The Covenant Not To Sue in Section VIE shall
not be effective with respect to any assignees or transferees who fail to provide such
written consent to EPA [and the state].
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XII. DISCLAIMER
28. This Agreement in no way constitutes a finding by EPA [or the state] as to
the risks to human health and the environment which may be posed by contamination at
the Property or the Site nor constitutes any representation by EPA [or the state] that the
Property or the Site is fit for any particular purpose.
XIII. DOCUMENT RETENTION
29. The Settling Respondent agrees to retain and make available to EPA [and
the state] all business and operating records, contracts, site studies and investigations, and
documents relating to operations at the Property, for at least ten years, following the
effective date of this Agreement unless otherwise agreed to in writing by the Parties. At
the end of ten years, the Settling Respondent shall notify EPA [and the state] of the
location of such documents and shall provide EPA [and the state] with an opportunity to
copy any documents at the expense of EPA [or the state]. [Where work is to be
performed, consider providing for document retention for ten years or until completion of
work to the satisfaction of EPA, whichever is longer.]
XIV. PAYMENT OF COSTS
30. If the Settling Respondent fails to comply with the terms of this
Agreement, including, but not limited to, the provisions of Section IV (Payment), [or
Section -- (Work to be Performed)] of this Agreement, it shall be liable for all litigation
and other enforcement costs incurred by the United States [and the state] to enforce this
Agreement or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
31. [Insert names, titles, and addresses of those to whom notices and
submissions are due, specifying which submissions are required.]
XVI. EFFECTIVE DATE
32. The effective date of this Agreement shall be the date upon which EPA
issues written notice to the Settling Respondent that EPA [and the state] has fully
executed the Agreement after review of and response to any public comments received.
XVH. ATTORNEY GENERAL APPROVAL
33. The Attorney General of the United States or her designee has issued prior
written approval of the settlement embodied in this Agreement.
XVm. TERMINATION
34. If any Party believes that any or all of the obligations under Section V
(Access/Notice to Successors in Interest) are no longer necessary to ensure compliance
with the requirements of the Agreement, that Party may request in writing that the other
Party agree to terminate the provision(s) establishing such obligations; provided,
however, that the provision(s) in question shall continue in force unless and until the
party requesting such termination receives written agreement from the other party to
terminate such provision(s).
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XIX. CONTRIBUTION PROTECTION
35. With regard to claims for contribution against Settling Respondent, the
Parties hereto agree that the Settling Respondent is entitled to protection from
contribution actions or claims as provided by CERCLA Section 113(f)(2), 42 U.S.C. ?
9613(f)(2) for matters addressed in this Agreement. The matters addressed in this
Agreement are [all response actions taken or to be taken and response costs incurred or to
be incurred by the United States or any other person for the Site with respect to the
Existing Contamination].
36. The Settling Respondent agrees that with respect to any suit or claim for
contribution brought by it for matters related to this Agreement it will notify the United
States [and the state] in writing no later than 60 days prior to the initiation of such suit or
claim.
37. The Settling Respondent also agrees that with respect to any suit or claim
for contribution brought against it for matters related to this Agreement it will notify in
writing the United States [and the state] within 10 days of service of the complaint on
them.
XX. EXHIBITS
38. Exhibit 1 shall mean the description of the Property which is the subject of
this Agreement.
39. Exhibit 2 shall mean the map depicting the Site.
[--. Exhibit 3 shall mean the Statement of Work.]
XXI. REMOVAL OF LIEN
40. [Use this provision only when appropriate.] Subject to the Reservation of
Rights in Section IX of this Agreement, upon payment of the amount specified in Section
IV (Payment) [or upon satisfactory completion of work to be performed specified in
Section (Work to be Performed)], EPA agrees to remove any lien it may have on the
Property under Section 107(1) of CERCLA, 42 U.S.C. ? 9607(1), as a result of response
action conducted by EPA at the Property.
XXH. PUBLIC COMMENT
41. This Agreement shall be subject to a thirty-day public comment period,
after which EPA may modify or withdraw its consent to this Agreement if comments
received disclose facts or considerations which indicate that this Agreement is
inappropriate, improper or inadequate.
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IT IS SO AGREED:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BY:
Regional Administrator, Region Date
IT IS SO AGREED:
BY:
Name Date
Since the covenant not to sue is from the United States, Regions negotiating these
Agreements should advise the Department of Justice of any other federal agency involved
with the Site, or which may have a claim under CERCLA with respect to the Site and use
best efforts to advise such federal agency of the proposed settlement.
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APPENDIX D
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Sample Comfort/Status Letters
Sample No Previous 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 U.S. Environmental
Protection Agency (EPA) and is provided solely for informational purposes.
The federal Superfund 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.html#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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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 inventory 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 are discovered. EPA will maintain a dialogue with the states and will
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.
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II. [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)].
(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 A 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" 40CFR 300.425(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].
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 82
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Sample Federal Superfund Interest Letter
Addressee
Re: [insert name or description of property/site] [COMMENT1]
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].
[COMMENT2]
I. STATUS OF THE IDENTIFIED PROPERTY:
a. The above-referenced property is presently part of [or is] the [insert name of
site.] [COMMENTS] [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.]
II. 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
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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].
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
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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 --/--/-- 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.]
[Choose either paragraph [a] 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/statute/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].
IV. 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,
Regional Contact
Enclosure «««.. c
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Sample State Action Letter
Addressee
Re: [Insert name or description of site/property]
Dear [Insert name of party]:
I am writing in response to your letter dated II 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 ADEFERRED 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 state of [name of state] addresses
the environmental conditions at the property under its own state authorities. While the [site
name] cleanup is being conducted, EPA intends to act in accordance with "Guidance on
Deferral of NPL Listing Determinations While States Oversee Response Actions" (OSWER
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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 role and intentions at sites for which activities are deferred
to state authorities.
III. [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 "A 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 site 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 (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 name] 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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APPENDIX E
88
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Headquarters
401 M Street, SW
Washington, DC 20460
Office of Site Remediation
Enforcement
Mail Code: 2273A
Fax: 202-564-0093
Elisabeth Freed
Policy and Guidance Branch
202-564-5117
freed.elisabeth@epa.gov
Tessa Hendrickson
Policy and Guidance Branch
202-564-6052
hendrickson.tessa@epa.gov
Outreach and Special Projects
Staff
(Brownfields Lead Office)
Mail Code: 5101
Fax: 202-260-6606
Linda Garczynski, Director
202-260-1233
garczynski.linda@epa.gov
Ann McDonough,
Associate Director
202-260-0145
mcdonough. arm @ epa. gov
Office of Emergency and
Remedial Response
Mail Code: 5204G
Fax: 703-603-9100
David Ouderkirk
703-603-9039
ouderkirk.david@epa.gov
Technology Innovation Office
MailCode:5102G
Fax: 703-603-9135
Daniel Powell
703-603-7196
powell.daniel@epa.gov
Mike Kurd
703/603-8836
hurd.michael@epa.gov
Office of Environmental Justice
Mail Code: 2201A
Fax: 202-564-0740
Robert Knox, Acting Director
202-564-2515
knox.robert@epa.gov
Office of General Counsel
Mail Code: 2366
Fax: 202-260-0584
Karen Kraus
202-260-4139
kraus.karen@epa.gov
Region I
John F Kennedy Federal
Building
Boston, MA 02203
Mail Code: HIO
Fax: 617-918-9662
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Lynn Jennings
617-918-1210
Jennings.lynn @ epa.gov
Region II
USEPA
18th Floor
290 Broadway
New York, NY 10278
Mail Code:
Fax: 212-637-4360
Larry D'Andrea
212-637-4314
dandrea.larry@epa.gov
Region III
841 Chestnut Building
Philadelphia, PA 19107
Mail Code: 3HS33
Fax: 215-814-3001
Josie Matsinger
215-814-3132
matsinger.josie@epa.gov
Tom Stolle
215-814-3129
stolle. torn @ epa. gov
Region VI
Waste Management Divsion
10th floor
Sam Nunn Federal Center
61 Forsythe Street
Atlanta, GA 30303
Fax: 404-562-8628
Mickey Hartnett
404-562-8661
hartnett. mickey @ epa.gov
Barbara Caprita
404-562-9969
caprita.barbara @ epa.gov
Beverly Williams
404-562-8493
williams.be verly @ epa.gov
Region V
77 West Jackson Boulevard
Chicago, IL 60604-3507
Mail Code: SE.4J
Fax:312-353-9306
Joe Dufficy
312-886-1960
dufficy .Joseph @ epa.gov
Jim Van der Koot
312-353-3161
vanderkoot.j ames @ epa. go v
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Region VI
1445 Ross Avenue, Suite 1200
Dallas, TX 75202-2733
Mail Code: 6SF-PB
Fax: 214-665-6660
Stan Hitt
214-665-6736
hitt.stanley @ epa.gov
Jonathan Weisberg
214-665-2180
weisberg .j onathan @ epa. go v
Region VII
726 Minnesota Avenue
Kansas City, KS 66101
Mail Code: SUPR/SAC
Fax: 913-551-7063
Susan Klein
913-551-7786
klein.susan @ epa.gov
Bob Richards
913-551-7502
richards.robert@epa.gov
David Ostrander
303-312-6931
ostrander.david @ epa.gov
Kathie Atencio
303-312-6803
atencio.kathie @ epa.gov
Suzanne Bohan
303-312-6925
bohan. suzanne @ epa. gov
Region IX
75 Hawthorne Street
San Francisco, CA 94105
Mail Code: SFD-1
Fax: 415-744-1796
Jim Hanson
415-744-2237
hanson.jim@epa.gov
Bill Keener
415-744-1356
keener.bill @ epa. gov
Region VIII
99 18th Street, Suite 500
Denver, CO 80202-2405
Mail Code: 8EPR-SA
Fax: 303-312-6071
Region X
1200 Sixth Avenue
Seattle, WA 98101
Mail Code: ECL-117
Fax: 206-553-0124
91
U.S. Environmental Protection Afiencv
Region 5, Library (PL. 12J)
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Lori Cohen
206-553-6523
cohen.lori@epa.gov
Susan K. Hutcherson
206-553-2852
hutcherson. susan @ epa. gov
Tod Gold
206-553-2569
gold.tod@epa.gov
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