United States
Environmental
Protection Agency
Washington, D.C. 20460
Solid Waste
and Emergency
Response (5101)
EPA500-F-97-104
April 1997
Liability and Other Guidance
Outreach and Special Projects Staff (5101)
Quick Reference Fact Sheet
EPA's Brownfields Economic Redevelopment Initiative is designed to empower 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. A brownfield is a site, or portion thereof, that has actual or perceived
contamination and an active potential for redevelopment or reuse. EPA's Brownfields Initiative strategies include
funding pilot programs and other research efforts, clarifying liability issues, entering into partnerships, conducting
outreach activities, developing job training programs, and addressing environmental justice concerns.
OVERVIEW
EPA has been working with States and municipalities
to develop guidance that will provide some assurance
that under specified circumstances, prospective pur-
chasers, lenders, and property owners do not need to be
concerned with Superfund liability. These guidance
clarify the liability of certain parties" association with
and activities at a site, and clearly state EPA's deci-
sion to use its enforcement discretion not to pursue
such parties. EPA anticipates that these clear state-
ments of the Agency's position will alleviate any
concerns parties may have in becoming involved in
the cleanup and redevelopment of previously used
properties.
ACTIVITIES
EPA has developed the following guidance to address
specific liability concerns.
• EPA issued a general policy statement regarding
the liability of owners of uncontaminated property
containing groundwater that has been contami-
nated by a neighboring property. This policy state-
ment provides assurance that EPA does not antici-
pate suing the property owner for groundwater
contamination if the owner did not cause or con-
tribute to the contamination.
• EPA issued guidance regarding the increased
consideration of anticipated future land uses in
remedv selection decisions at National Priorities
List (NPL) sites. The guidance encourages
discussions among local land use planning
authorities, other officials, and the community as
early as possible in the site assessment process.
EPA issued guidance that expands the circumstances
under whichEPA will enterinto Prospective Purchaser
Agreements. The guidance states the conditions
under which EPA will not sue prospective purchasers
for contamination that existed before the purchase.
EPA issued the Policy on CERCLA Enforcement
Against Lenders and Government Entities That
Acquire Property Involuntary which outlines crite-
ria for determining when lenders and municipali-
ties are exempt from CERCLA enforcement provi-
sions. The guidance was subsumed in large mea-
sure by the September 30, 1996 "Asset Conserva-
tion, Lender Liability, and Deposit Insurance Pro-
tection Act of 1996."
EPA issued a policy on the use of Comfort/Status
Letters to assist parties who seek to clean up and
reuse brownfields properties. The policy contains
four sample comfort/status letters that address the
most common inquiries for information EPA
receives regarding contaminated or potentially
contaminated property. The letters are intended
solely for informational purposes; they relate only
to EPA's intent to exercise its response and
enforcement authorities under Superfund at a
particular property based on information presently-
known by EPA about that property. The letters do
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not provide a release from CERCLA liability and
are not considered an assurance that no action will
be taken under Superfund law at the property (i.e..
no action assurance).
• EPA issued a model comfort letter for closing
military bases that addresses various issues
concerning perceived National Priorities List (NPL)
stigmas and Superfund liability. The letter clarifies
some common misunderstandings aboutNPL listing
and CERCLA liability and highlights certain
provisions concerning Federal property transfer.
Additionally, it states that parcels of military bases
identified as uncontaminated under the Community
Environmental Response Facilitation Act (CERFA)
are not part of the NPL listing.
* The Office of the Comptroller of Currency issued
guidance that revises Community Reinvestment
Act (CRA) credit guidelines to include giving
credit to banks that provide loans for assessment.
cleanup, or redevelopment of brownfields.
« EPA issued soil screening guidance to help deci-
sion-makers quickly determine which portions of a
site require further study, and which pose little risk
to human health and therefore may be ready for
development without extensive cleanup.
• EPA issued a rule that limits the regulatory
obligations of financial institutions and others who
hold security interests in property on which
petroleum Underground Storage Tanks are located.
(NOTE: See The '"Asset Conservation. Lender
Liability, and Deposit Insurance Protection Act of
1996.")"
• EPA issued a military base closure guidance that
addresses the approach EPA should use in
determining whether to concur that a parcel has
been properly identified by the military service as
"uncontaminated" and, therefore, is transferable
pursuant to CERCLA Section 120(h)(4).
EPA' s State and Tribal Deferral Program is intended
to encourage qualified, interested States to address.
under State laws, the large number of sites now in
EPA's listing queue in order to accelerate cleanup.
minimize duplicative State/Federal efforts, and offer
potentially responsible parties (PRPs) a measure of
confidence that only one agency will address the
site.
NEW LEGISLATION
On September 30. 1996. as a part of the Omnibus
Appropriations Bill for Fiscal Year 1997, Congress
passed and the President signed into law the "'Asset
Conservation. Lender Liability, and Deposit Insur-
ance Protection Act of 1996" (the Act). The Act
includes lender and fiduciary liability amendments to
CERCLA, amendments to the secured creditor ex-
emption set forth in Subtitle I to RCRA, and valida-
tion of the portion of the CERCLA Lender Liability
Rule that addresses involuntary acquisitions by gov-
ernment entities. These amendments made by the
Act apply to all claims not finally adjudicated as of
September 30, 1996, which include all cases that are
in the process of being settled. In 1997, EPA will
issue a Fact Sheet that describes in more detail the
impact of the Act, how it differs from EPA policy,
and the portions of EPA policy that were left unad-
dressed by the Act.
In addition to specific guidance, EPA is exploring other
ways to address the fear that affected parties have about
incurring Superfund liability at previously used
properties. This analysis will form the basis for future
guidance, mapping out the relationship between the
types of sites and situation encountered as a result of the
Superfund liability scheme's effect on redevelopment.
CONTACT
Brace Pumphrey
U.S. EPA - OECA
(202)564-6076
Brownfields Fact Sheet
April 1997
Liability and Other Guidance
EPA 500-F-97-104
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