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Revitalizing
Contaminated Sites:
Addressing Liability Concerns
The Revitalization Handbook
May 2008
U.S. Environmental Protection Agency
Office of Site Remediation Enforcement
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Cover photo capturing revitalized area provided by the Office of Superfund
Remediation and Technology Innovation, Office of Solid Waste and
Emergency Response, U.S. EPA. The Davie Landfill is now the Vista View
Park, which includes walking trails, bike trails, horse trails, picnic shelters.
and a catch-and-release fishing pond. Visit http://www.epa.gov/superfund/
programs/recycle/index.html for more information on Superfund
Redevelopment.
EPAPub. No. 330-K-08-002
Office of Site Remediation Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
May 2008
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Table of Contents
Preface 1
Purpose and Use of This Handbook 3
I. Overview of CERCLA and RCRA 5
A CERCLA 5
1. General Information 5
2. CERCLAs Liability Scheme 6
3. Traditional CERCLA Liability Protections 7
4. EPA's Brownfields Program and the Brownfields
Amendments 8
B. RCRA 10
II. Statutory and Enforcement Tools for the Cleanup,
Reuse, and Revitalization of Contaminated Sites 13
A Owners and Purchasers of Contaminated Property .... 14
1. Innocent or "Unknowing" Purchasers 14
2. Bona Fide Prospective Purchasers 15
3. Owners of Property Impacted by Contamination
from an Offsite Source (Contiguous Property
Owners) 17
4. Residential Property Owners 20
5. Specific EPA Tools for Owners (E.g.,
Prospective Purchasers) of Contaminated
Property 21
i. Common Elements Guidance 21
ii. Prospective Purchaser Agreements 23
ill. Comfort/Status Letters 25
M Windfall Lien Guidance, Comfort Letters, and
Settlements 28
B. Lenders and Local Governments 30
1. CERCLA Liability Protections for Lenders
and Local Governments 30
i. Lenders 30
ii. Local Governments 33
2. Underground Storage Tanks (UST) Lender
Liability Rule 34
III. Other Considerations for Entities Seeking to Clean
Up, Reuse, and Revitalize Contaminated Property 37
A Long-Term Stewardship 37
B. State Response Programs 40
1. Voluntary Cleanup Programs 40
2. Memoranda of Agreement 41
3. Eligible Response Sites 42
C Supplemental Environmental Projects (SEPs) 43
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Table of Contents (cont'd)
D. OECA Guiding Principles 43
1. Environmental Justice 44
2. Public Participation 45
3. Financial Assurance 46
E Initiatives and Programs 47
1. ER3 - The Environmentally Responsible
Redevelopment and Reuse Initiative 48
2. Brownfields Grants and State/Tribal Funding 49
3. The Superfund Redevelopment Initiative 50
4. The RCRA Brownfields Prevention Initiative 51
Appendix A The "Common Elements Guidance"
Appendix B. Brownfields Enforcement and Land Revitalization
Policy and Guidance Documents
Appendix C. Online Resources to Cleanup
Enforcement, Brownfields, and Land
Revitalization Information and Documents
Appendix D. Brownfields Contacts
Table of Contents For Handbook Text Boxes
Elements of the RCRA Corrective Action Enforcement
Program 11
All Appropriate Inquiries 17
Threshold Criteria for EPA's Contaminated Aquifer
Guidance 18
Threshold Criteria for Residential Property Owners
Under EPA Guidance 21
Evaluation Criteria for Superfund Comfort/Status Letters 26
Private Tools 27
"Participation in Management" Defined 31
Examples of Engineering Controls 38
Examples of Institutional Controls 39
Grants and Funding Web site 49
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Preface
TheU. S. Environmental Protection Agency's (EPA) Office
of Site Remediation Enforcement (OSRE) implements the
enforcement of EPA's hazardous waste cleanup laws, includ-
ing Superfund (also known as the Comprehensive Environmental
Response, Compensation, and Liability Act, or CERCLA), the
corrective action and underground storage tank cleanup provi-
sions of the Resource Conservation and Recovery Act (RCRA),
and the Oil Pollution Act (OPA). The main obj ective of the
cleanup enforcement program is to ensure prompt site cleanup
and the participation of liable parties in performing and paying
for cleanups in a manner that ensures protection of human health
and the environment.
Congress passed the Small Business Liability Relief and
Brownfields Revitalization Act of 2002 (Public Law 107-118)
(hereinafter, the Brownfields Amendments), which modified
Superfund and further promoted the cleanup, reuse and
redevelopment of sites by addressing liability concerns associ-
ated with unused or under-utilized property. One important
mission of OSRE is to provide guidance on the liability protec-
tions available to property owners and other categories of
potentially liable parties as a result of the Brownfields Amend-
ments and other provisions of the hazardous waste cleanup
laws. OSRE has played, and continues to play, a key role in the
reuse and revitalization of contaminated sites, including
brownfield sites, by providing such guidance and developing
tools that will assist parties seeking to clean up, reuse or rede-
velop contaminated properties.
Over the years, OSRE has highlighted these efforts through a
series of handbooks, most recently the Brownfields
Handbook: How to Manage Federal Environmental
Liability Risks (2002). This 2008 edition of the handbook,
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Revitalizing Contaminated Sites: Addressing Liability Concerns
(The Revitalization Handbook) is a compilation of enforcement
tools, guidance, and policy documents that are available to help pro-
mote the cleanup and revitalization of contaminated sites.
While OSRE intends this handbook to be useful for years to come, it
recognizes that developments in the brownfields area will yield new
policy and guidance documents. Please refer to the Agency's Web
site (http://www.epa.gov/compliance/cleanup/revitalization) fornew
and updated documents.
OSRE looks forward to the challenge of protecting human health
and the environment through the cleanup and subsequent revitaliza-
tion of contaminated property.
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Purpose and Use of This
Handbook
This handbook summarizes the statutory and regulatory provi-
sions of the Comprehensive Environmental Response, Com-
pensation, and Liability Act, 42 U.S.C. §§ 9601-9675
(CERCLA, commonly known as Superfund) and the Resource
Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992
(RCRA), as well as the policy and guidance documents most
useful in managing environmental cleanup liability risks associ-
ated with the revitalization of contaminated sites. It is designed
for use by parties involved in the assessment, cleanup, and re-
vitalization of sites, and provides a basic description of the tools
parties can use to address liability concerns.
There are a number of things a party may want to consider
before revitalizing contaminated property. For example, a party
should determine the end use of the property, and should col-
lect and consider information on past uses and potential con-
tamination. In particular, if the party intends to purchase the
property, it should consider whether it needs to conduct certain
inquiries to take advantage of CERCLA liability protections,
such as the bona fide prospective purchaser protection. Should
the party need information or have concerns about cleanup or
liability protection, it should identify the most appropriate level
of government to consult about cleanup and liability protection.
Some parties will find that they can proceed directly to their
reuse activities. Others may want to pursue private mecha-
nisms such as indemnification or insurance tools (see Private
Tools text box on page 27), or work at the state level and
make use of existing state tools, programs, or incentives such
as the state voluntary cleanup program. If contamination on
the property warrants EPA's attention under CERCLA or
RCRA, the party should first determine if EPA or the state is
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taking or plans to take action at the property. After determining
where the property fits in the federal or state cleanup pipeline, a
party may use this handbook to help decide which tool or tools are
most appropriate for addressing potential CERCLA or RCRA liabil-
ity risks.
Both CERCLA and RCRA are designed to protect human health
and the environment from the dangers of hazardous waste, though
these two programs address different parts of the hazardous waste
problem. The RCRA programs focus on how wastes should be man-
aged to avoid potential threats to human health and the environment.
CERCLA, on the other hand, applies primarily when mismanage-
ment has already occurred, resulting in releases of hazardous sub-
stances to the environment.
Though many prospective purchasers, developers, and lenders re-
port hesitation about getting involved with brownfield properties be-
cause they fear that they might be held liable under CERCLA or
RCRA, the vast majority of brownfield properties will never require
EPA's attention under CERCLA, RCRA, or any other federal law.
Accordingly, parties' fears of federal involvement ~ to the extent
that they impact an entity's decision to get involved with a brownfield
site ~ rather than actual EPA practice, are the primary obstacles to
the redevelopment and reuse of brownfields. EPA hopes that this
handbook will assist in eliminating or reducing any such fears.
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I. Overview of CERCLA and
RCRA
A. CERCLA
1. General Information
In 1980, in response to public concern about abandoned haz-
ardous waste sites such as Love Canal, Congress enacted the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. §§9601-9675. CERCLA,
commonly referred to as Superfund, authorizes the federal gov-
ernment to assess and/or clean up contaminated sites and pro-
vides authority for emergency response to hazardous materials
incidents.
CERCLA provides the federal government with a source of
funds, the Hazardous Substance Trust Fund (the Fund), and
the legal authority to respond to actual and threatened releases
of hazardous substances, pollutants and contaminants.
CERCLA also establishes a comprehensive liability scheme to
hold certain categories of parties liable to conduct and/or pay
for cleanup of such releases.
EPA may exercise its response authority through removal or
remedial actions. A removal action generally is a short-term
and/or emergency action intended to stabilize or clean up an
incident or site which poses an imminent threat to human health
or the environment. CERCLA § 101(23). A remedial action
generally addresses long-term threats to human health and the
environment caused by more persistent contamination sources.
CERCLA § 101(24). Fund-financed remedial responses are
undertaken only at sites on EPA's National Priorities List (NPL).
The National Contingency Plan (NCP), 40 C.F.R. Part 300,
provides the "blueprint" for conducting removal and remedial
actions under CERCLA.
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2 CERCLA's Liability Scheme
CERCLA's "polluter pays" liability scheme ensures that parties who
caused the contamination, rather than the general public, pay for
cleanups. To be held liable for the costs or performance of a cleanup
under CERCLA, a party must be a "potentially responsible party"
(PRP) as described in CERCLA § 107(a), which includes:
(1) The owner or operator of a facility;
(2) An owner or operator at the time of disposal;
(3) A person who arranged for the disposal or treatment of
hazardous substances ("generator"); and
(4) A person who accepted hazardous substances for
transport and selected the site to which the substances
were transported ("transporter").
Under CERCLA's comprehensive liability scheme, aPRP's liability
for cleanup is:
• Strict - Aparty is liable if it falls within one of the above
categories in CERCLA § 107(a), 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, any one or
more of the parties may be held liable for the entire cost
of the cleanup, regardless of their share of the waste
contributed, unless a party can show that the injury or
harm at the site is divisible.
• Retroactive - A party may be held liable even if the
hazardous substance disposal occurred before CERCLA
was enacted in 1980.
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Additionally, EPAhas adopted an "enforcement first" policy through-
out the Superfund cleanup process to compel those responsible for
hazardous waste sites to take the lead in cleanup, thus conserving
the resources of the Fund. Using the enforcement authorities pro-
vided by Congress, EPA may enter into settlements with or compel
PRPs to implement a cleanup at a site where a release of hazardous
substances has occurred. When the Agency spends Fund monies to
finance a removal or remedial action, EPA may seek reimbursement
from responsible parties.
3. Traditional CERCLA Liability Protections
CERCLA includes several defenses to liability or liability protections.
The traditional defenses ~ those found in the statute prior to the
Brownfields Amendments ~ include an act of God, an act of war, or
what is commonly known as the third-party or "innocent landowner"
defense. See CERCLA § 107(b).
A party may qualify as an innocent landowner if it meets the criteria
set forth in CERCLA §§ 107(b)(3) and 101(35). CERCLA
§ 101 (3 5)(A) distinguishes between three types of innocent landown-
ers:
(1) Purchasers who acquire property without knowledge of the
contamination;
(2) Governments who acquire contaminated property by escheat,
other involuntary transfers or acquisitions, or the exercise of
eminent domain authority by purchase or condemnation; and
(3) Inheritors of contaminated property.
CERCLA also excludes from the definition of owner/operator a unit
of state or local government that acquired ownership of the property
involuntarily. See CERCLA § 101 (20)(D). Discussed below are the
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liability protections addressed in the Brownfields Amendments, such
as the bona fide prospective purchaser protection.
4 EPA's Brownfields Program and the
Brownfields Amendments
There are many different types of contaminated property in the United
States. Some may be "Superfund sites"-- sites where the federal
government is or plans to be involved in cleanup efforts, many of
which are listed on the NPL. Other contaminated properties may be
"brownfields"-- properties that are unused or underutilized because
of fears about actual or possible contamination from past uses. Of-
ten, the federal government is not involved in cleanups at brownfield
sites. Rather, state and tribal response programs play a significant
role in cleaning up and helping to revitalize these sites. Other con-
taminated properties may be "RCRA brownfields" ~ RCRA facili-
ties where reuse or redevelopment is slowed due to real or perceived
concerns about requirements imposed by RCRA or actual or poten-
tial contamination.
EPA launched the Brownfields Initiative in the mid-1990's and de-
veloped tools within the Superfund program and the enforcement
office to help further the Initiative's goals of empowering states, com-
munities, and other stakeholders in redevelopment to assess, safely
clean up, and sustainably reuse brownfields, and to prevent future
brownfield sites.
Congress codified many of these practices, policies, and guidances
that had been adopted to promote the redevelopment and revitaliza-
tion of brownfields when it passed the Small Business Liability Relief
and Brownfields Revitalization Act of 2002 (Public Law 107-118)
(Brownfields Amendments). The Brownfields Amendments define
a brownfield site as "real property, the expansion, redevelopment, or
reuse of which may be complicated by the presence or potential
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presence of a hazardous substance, pollutant, or contaminant."
CERCLA § 101 (39). The Brownfields Amendments also include
provisions to address the liability concerns of certain landowners,
provide statutory authority for EPA's site-specific brownfields grant
program, and authorize EPA to provide grants to states and tribes to
develop response programs.
As noted above, under CERCLA's liability scheme, the owner of a
contaminated property is responsible for the property's cleanup based
solely on its ownership status, even if it did not contribute to the
contamination. As a result, entities that want to purchase contami-
nated properties are often concerned about incurring CERCLA li-
ability once they acquire the property. To address these liability con-
cerns, the Brownfields Amendments included new liability protec-
tions for landowners who acquire property and meet certain criteria.
The three landowner liability protections addressed in the Brownfields
Amendments are:
• Bona fide prospective purchasers (BFPPs);
• Contiguous property owners (CPOs); and
• Innocent landowners (ILOs) (specifically innocent or unknow-
ing purchasers).
The BFPP liability protection applies to an entity that purchases prop-
erty after January 11,2002, even with knowledge of contamination
at the site, so long as the entity complies with certain pre- and post-
purchase obligations.
The CPO provision protects owners of contaminated property where
the contamination originated from a contiguous or similarly-situated
property not owned by the entity asserting CPO status. This liability
protection also has pre- and post-purchase obligations, and notably,
unlike the BFPP liability protection, the person cannot have knowl-
edge of the contamination at the time of purchase.
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The ILO provision, as discussed above, excludes from CERCLA
liability unknowing purchasers of contaminated property where the
contamination was caused by a third party, the unknowing purchaser
made all appropriate inquiry but did not discover the contamination,
and the purchaser meets certain statutory conditions. The Brownfields
Amendments clarified the all appropriate inquiry aspect of this pro-
tection. This liability protection also has pre- and post-purchase ob-
ligations.
For more information on these liability protections and related cleanup
enforcement policy and guidance, please see Section n.
More information on the Superfund enforcement program is avail-
able on EPA's Web site athttp://www.epa.gov/compliance/cleanup/
superfund/index.html. Information on the Superfund program is avail-
able at http://www.epa.gov/superfund.
B. RCRA
In 1976, Congress enacted the Resource Conservation and Recov-
ery Act (RCRA), 42 U.S.C. §§ 6901-6992k, which authorizes EPA
to establish programs to regulate solid waste (Subtitle D), hazardous
waste (Subtitle C), and underground storage tanks (Subtitle I).
RCRA's goals include:
• Protecting human health and the environment from the poten-
tial hazards of waste disposal;
• Conserving energy and natural resources;
• Reducing the amount of waste generated; and
• Ensuring that wastes are managed in an environmentally sound
manner.
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Congress gave EPA the authority through RCRAto control hazard-
ous waste from "cradle to grave." The regulatory program includes
procedures to facilitate the proper identification and classification of
hazardous waste. The program also includes standards for facilities
that generate, transport, treat, store or dispose of hazardous waste,
and requires that certain persons managing waste obtain a permit.
Unlike CERCLA, RCRA does not contain abona fide prospective
purchaser or similar liability protection, as the Brownfields Amend-
ments only addressed CERCLA.
Since waste management at RCRA facilities may result in spills or
releases into the environment, Subtitle C of the statute also includes
provisions governing the cleanup of contaminated soil, groundwater,
and air resulting from such management, also known as "corrective
action." As a condition of a RCRA permit, owners/operators are
required to clean up contamination caused by the mismanagement of
wastes.
Elements of the RCRA Corrective
Action Enforcement Program
Conduct investigations;
Conduct a thorough cleanup of the
hazardous release; and
Monitor the cleanup to make sure it complies
with applicable state and federal
requirements.
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States are an integral part of the RCRA program. Under Sub-
title C, EPA reviews state programs that consist of requirements
for the generation, transportation, treatment, storage, and dis-
posal of hazardous wastes for facilities within that state. If the
state program is deemed to be at least as stringent as the federal
requirements, EPA authorizes that state to administer the state
program in lieu of the federal program and facilities must then
comply with the authorized state requirements rather than the
corresponding federal requirements. After authorization, both the
state andEPAhave the authority to enforce those requirements.
Currently, 50 states and territories have been granted authority
to implement the base, or initial, program. Many are also autho-
rized to implement additional parts of the RCRA program, such
as corrective action. More information on the RCRA state au-
thorization program is available on EPA's Web site at
www.epa.gov/epaoswer/hazwaste/state. More information on
the RCRA cleanup enforcement program is available on EPA's
Web site at http://www.epa.gov/compliance/cleanup/rcra/
indexhtml.
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II. Statutory and Enforcement
Tools for the Cleanup, Reuse,
and Revitalization of Con-
taminated Sites
The Office of Site Remediation Enforcement (OSRE) in EPA's
Office of Enforcement and Compliance Assurance (OECA) is
charged with enforcing the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act, 42 U.S.C. §§ 9601-
9675 (CERCLA, commonly known as Superfund) and the Re-
source Conservation and Recovery Act, 42 U.S.C. §§ 6901-
6992 (RCRA) Corrective Action and underground storage tank
programs, as well as aspects of the Oil Pollution Act (OPA). In
this capacity, OSRE began to develop a comprehensive approach
in the early 1990s to defining liability issues and providing ap-
propriate liability relief under these statutes to assist with the
redevelopment and revitalization of contaminated property. More
specifically, OSRE began developing guidance documents to
provide liability clarity, if not liability relief, to those who were
interested in redeveloping and revitalizing contaminated sites.
Partly in response to EPA's efforts, Congress enacted the Small
Business Liability Relief and Brownfields Revitalization Act of
2002 (Public Law 107-118) (the Brownfields Amendments),
amending the Superfund statute, to clarify landowner liability
concerns and provide funding for grants for the assessment and
cleanup of contaminated property.
OSRE continues to promote site cleanup by potentially respon-
sible parties (PRPs) and private parties and revitalization through
the issuance of enforcement discretion guidance documents,
model enforcement documents, frequently asked questions, fact
sheets, and other documents that provide liability certainty or
relief to potential developers and owners of contaminated land.
All of these documents, along with all current Superfund en-
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forcement and brownfield policy and guidance documents, are avail-
able onEPA's Web site athttp://www.epa.gov/compliance/resources/
policies/cleanup/. Those enforcement discretion documents that are
relevant to revitalization are summarized in Appendix B and are avail-
able on the CD accompanying this handbook.
More information on the Superfund enforcement program is avail-
able on EPA's Web site athttp://www.epa.gov/compliance/cleanup/
superfund/index.html. Information on the Superfund program is avail-
able at http://www.epa.gov/superfund.
The following is a discussion of certain categories of parties that
may be concerned about CERCLA liability, and the statutory protec-
tions and EPA tools that may be available to address such concerns.
A. Owners and Purchasers of Contami-
nated Property
As discussed in the previous chapter, owners of contaminated prop-
erty are liable under CERCLA for any costs associated with ad-
dressing the contamination. The following are statutory liability pro-
tections for owners and prospective purchasers of contaminated prop-
erty, and associated EPA tools.
1. Innocent or "Unknowing" Purchasers
Entities that acquire property and had no knowledge of the contami-
nation at the time of purchase may be eligible for CERCLA's third-
party defense for certain purchasers of contaminated property.
CERCLA §§ 107(b)(3), 101(35)(A)(i). This defense, added to
CERCLA in the Superfund Amendments and Reauthorization Act of
1986 (Public Law 99-499), provides entities with an affirmative de-
fense to liability if they conducted all appropriate inquiries prior to
purchase and complied with other pre- and post-purchase require-
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ments. The 2002 Brownfields Amendments partially amended the
innocent purchaser defense by elaborating on the all appropriate in-
quiry requirement. See the "All Appropriate Inquiries" text box on
page 17.
The innocent purchaser defense may provide liability protection to
some owners of contaminated property ~ especially those that pur-
chased property prior to January 1,2002, and are therefore ineligible
for the bona fide prospective purchaser protection ~ but generally
most post-2002 prospective purchasers will not rely on this defense
because of the requirement that the purchaser have no knowledge of
contamination at the site.
Several of EPA's guidance documents discuss the innocent purchaser
third-party defense, including the Common Elements guidance, dis-
cussed below in Section U. A. 5 beginning on page 21.
2 Bona Fide Prospective Purchasers
The 2002 Brownfields Amendments created a new liability protec-
tion for a bona fide prospective purchaser (BFPP). Prior to the
passage of the Brownfields Amendments, prospective purchasers of
contaminated property could not avoid the liability associated with
being the current owner if they purchased with knowledge of con-
tamination, unless they entered into a prospective purchaser agree-
ment (PPA) with EPA prior to acquisition that included covenants
not to sue under CERCLA §§106 and 107. Now, however, as a
result of the Brownfields Amendments, a party can achieve and
maintain status as a BFPP without entering into a PPA with EPA, so
long as that person meets the statutory criteria.
The BFPP provision found in CERCLA § 107(r) dramatically changed
the CERCLA liability landscape. Section 107(r) protects from owner/
operator liability a BFPP who acquires property after January 11,
2002, and meets the criteria in CERCLA § 101(40) and § 107(r).
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Unlike the innocent purchaser defense, persons may now acquire
property knowing, or having reason to know, of contamination on
the property and not be liable under CERCLA as long as they meet
the statutory criteria.
BFPPs must meet the threshold criteria of performing "all appropri-
ate inquiry" prior to acquiring the property, and demonstrating "no
affiliation" with a liable party. BFPPs must also satisfy the following
obligations which are ongoing:
• Complying with land use restrictions and not impeding the
effectiveness or integrity of institutional controls;
• Taking "reasonable steps to prevent releases" with respect
to hazardous substances affecting a landowner's property;
• Providing cooperation, assistance and access;
• Complying with information requests and administrative sub-
poenas; and
• Providing legally required notices.
BFPPs also must not impede the performance of a response action
or natural resource restoration. CERCLA § 107(r).
BFPPs are not liable as owner/operators for CERCLA response costs,
but the property they acquire may be subj ect to a windfall lien where
an EPA response action has increased the fair market value of the
property. For more discussion of windfall liens, please refer to Sec-
tion n. A. 5.iv on page 28.
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All Appropriate Inquiries
All Appropriate Inquiry (AAI) is required under CERCLA
§ 101(35)(B) and is the first step that BFPPs, CPOs and
innocent purchasers must undertake to achieve the pro-
tected status. CERCLA § 101(35)(B) required EPA to
publish a regulation to "establish standards and practices
for the purpose of satisfying the requirement to carry out
[AAI] . . . ." EPA's All Appropriate Inquiries Rule
("AAI Rule") became final on November 1,2006 (70 FR
66070). Parties affected by the AAI Rule are those pur-
chasing commercial or industrial real estate who wish to
take advantage of CERCLA's new liability protections.
and those persons conducting a site characterization or
assessment with funds provided by certain federal
brownfields grants.
3. Owners of Property Impacted by Contamina-
tion from an Offsite Source (Contiguous Prop-
erty Owners)
Owners of property above aquifers contaminated from an off-site
source may be concerned about CERCLA liability even though they
did not cause and could not have prevented the ground-water con-
tamination. Protection from liability for contiguous landowners can
be found in EPA guidance prior to the Brownfields Amendments, as
well as in those Amendments.
In May 1995, OSRE developed the Final Policy Toward Owners
of Property Containing Contaminated Aquifers in response to this
concern. Not only did EPA state that it would not require cleanup or
the payment of cleanup costs if the landowner did not cause or con-
tribute to the contamination, it also stated that if a third party sued or
threatened to sue, EPA would consider entering into a settlement
with the landowner covered under the policy to prevent third-party
damages being awarded.
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Threshold Criteria for EPA's
Contaminated Aquifer Guidance
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 his 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 that 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.
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The policy identifies certain exceptions as they apply to particular
landowners including, among others, whether a well on the property
may affect the migration of contaminants, or the existence of a con-
tractual relationship between the landowner and the person causing
the off-site contamination. In addition, the policy required that, to be
covered by the policy, the landowner must not be liable based on
some other connection to the site, such as being a generator or trans-
porter.
In addition, the Brownfields Amendments provide statutory protec-
tion for contiguous property owners (CPOs). Specifically, CERCLA
§ 107(q) excludes from the definition of "owner or operator" a per-
son who owns property that is "contiguous," or otherwise similarly
situated to, a facility that is the only source of contamination found on
the person's property. Like the contaminated aquifer policy, this pro-
vision protects parties that are victims of pollution caused by a
neighbor's actions.
To qualify as a statutory CPO, a landowner must meet the criteria
set forth in CERCLA § 107(q)( 1 )(A). A CPO must meet the thresh-
old criteria of performing "all appropriate inquiry" prior to acquiring
the property, and demonstrating that it is not affiliated with a liable
party. Persons who know, or have reason to know, prior to purchase,
that the property is or could be contaminated, cannot qualify for the
CPO liability protection under the Brownfields Amendments, although
such parties may still be entitled to rely on enforcement discretion
derived from EPA's 1995 contaminated aquifer guidance. Like
BFPPs, CPOs must also satisfy ongoing obligations after purchase.
On January 13,2004, EPA issued its Interim Enforcement Discre-
tion Guidance Regarding Contiguous Property Owners (Con-
tiguous Property Owner Guidance), which discusses CERCLA
§107(q). The guidance addresses (1) the statutory criteria; (2) the
application of CERCLA § 107(q) to current and former owners of
property; (3) the relationship between section 107(q) and EPA's Resi-
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dential Homeowner Policy and Contaminated Aquifers Policy; and
(4) discretionary mechanisms EPA may provide to resolve remaining
liability concerns of contiguous property owners. The guidance docu-
ment was followed by a Contiguous Property Owner Reference
Sheet.
4 Residential Property Owners
In 1991, EPA issued its Policy Towards Owners of Residential
Properties at Superfund Sites, an enforcement discretion policy,
the goal of which was to relieve residential owners of the fear that
they might be subject to an enforcement action involving contami-
nated property, even though they had not caused the contamination
on the property.
Under this policy, a residential owner's knowledge of the contamina-
tion was deemed irrelevant. The residential owner policy applies to
residents as well as their lessees, so long as the activities are consis-
tent with the policy. The policy also applies to residential owners
who acquire property through purchase, foreclosure, gift, inheritance,
or other form of acquisition, as long as the activities after acquisition
are consistent with the policy.
Residential property owners that purchase contaminated property
after January 2002, can take advantage of the statutory BFPP pro-
tection. The Brownfields Amendments addressed residential prop-
erty owners by clarifying the type of pre-purchase investigation (/'. e.,
all appropriate inquiry) that a residential property owner must con-
duct to obtain BFPP status. Specifically, an inspection and title search
that reveal no basis for further investigation will satisfy all appropri-
ate inquiry for a residential purchaser. CERCLA § 101 (40)(B)(iii).
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Threshold Criteria for Residential Property
Owners Under EPA Guidance
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 EPA taking a response action at the site;
Cooperates fully with EPA by providing access and
information when requested and does not interfere with
the activities that either EPA or a state is 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.
& Specific EPA Tools for Owners (E.g., Prospective
Purchasers) of Contaminated Property
i. Common Elements Guidance
In March 2003, EPA issued its "Common Elements" guidance for
the three property owner classes ~ BFPP, CPO and innocent pur-
chaser ~ addressed in the Brownfields Amendments. See Interim
Guidance Regarding Criteria Landowners Must Meet in Order
to Qualify for Bona Fide Prospective Purchaser, Contiguous
Property Owner, or Innocent Landowner Limitations on CERCLA
Liability ('Common Elements').
The guidance was accompanied by the Common Elements' Guid-
ance Reference Sheet, also issued on March 6, 2003, which high-
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lights the significant points of the guidance. Both of these docu-
ments are available in Appendix Aof this handbook.
The Brownfields Amendments identify threshold criteria and ongo-
ing obligations that these types of landowners must meet to obtain
the liability protections afforded by the statute. Many of these obli-
gations are overlapping and thus the shorthand name for the Com-
mon Elements guidance. Included with the Common Elements guid-
ance are three documents:
(1) A chart laying out the common statutory obligations;
(2) A questions and answers document pertaining to the "reason-
able steps" statutory criteria; and
(3) A model comfort/status letter for providing site-specific sug-
gestions as to reasonable steps.
The Common Elements guidance first discusses the threshold crite-
ria BFPPs, CPOs and innocent purchasers must meet to assert these
liability protections.
The first threshold requirement is that the landowner conduct "all
appropriate inquiries" (AAI) prior to purchasing the property.
CERCLA§§ 101(40XB), 107(q)(lXAXviu), 101(35XAXi),(B)(i). Sec-
ond, the BFPP and CPO protections require that the purchaser not
be "affiliated" with a liable party, CERCLA §§ 101(40)(H),
107(q)(l)(A)(ii), and for the innocent purchaser protection, the act
or omission that caused the release or threat of release of hazardous
substances and the resulting damages must have been caused by a
third party with whom the person does not have an employment,
agency, or contractual relationship. CERCLA §§ 107(b)(3),
101(35)(A).
Second, the Common Elements guidance discusses the common
ongoing obligations for each type of landowner liability protection
identified as follows:
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• Complying with land use restrictions and not impeding the
effectiveness or integrity of institutional controls;
• Taking "reasonable steps to prevent releases" with respect
to hazardous substances affecting a landowner's property;
• Providing cooperation, assistance, and access to the
property;
• Complying with information requests and subpoenas; and
• Providing legally required notices.
Prospective purchasers or owners of contaminated property may
want to use the Common Elements guidance to clarify the different
liability protections that may be available, and their requirements.
ii. Prospective Purchaser Agreements
EPA has long recognized the value of redeveloping contaminated
land and the need to provide liability relief to encourage prospective
purchasers of such land.
Long before the BFPP liability protection was available, EPA devel-
oped tools for prospective purchasers of contaminated property, in-
cluding prospective purchaser agreements (PPAs). PPAs are agree-
ments between a liable party and EPA whereby EPA provides the
party with liability relief in exchange for payment and/or cleanup
work. The first EPApolicy dealing with prospective purchasers of
contaminated property was published in June 1989 and titled Guid-
ance on Landowner Liability under Section 107(a)(l) of
CERCLA, DeMinimis Settlements under Section 122(g)(l)(B) of
CERCLA, and Settlements with Prospective Purchasers of Con-
taminated Property. Models attached to the 1989 guidance were
for settlements with de minimis landowners under § 122(g)(l)(B).
After the Agency gained experience with developing and issuing
PPAs, it expanded the circumstances under which it would consider
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a PPA and issued guidance titled Guidance on Agreements with
Prospective Purchasers of Contaminated Property (May 24,1995).
This guidance, and the criteria contained therein, allows EPA greater
flexibility in considering agreements with covenants not to sue. Such
agreements encourage the reuse or redevelopment of contaminated
property that would have substantial benefits to the community (e.g.
through job creation or productive use of abandoned property), but
also would be safe, consistent with remediation, and provide direct
benefits to EPA. Attached to the 1995 guidance is a model prospec-
tive purchaser agreement.
EPA further enhanced and expedited the PPA process in its October
1,1999 guidance, Expediting Requests for Prospective Purchaser
Agreements, and continued to build on the success achieved in issu-
ing PPAs by clarifying threshold criteria and providing a common
framework of analysis for entering into PPAs in its January 10,2001
guidance, Support of Regional Efforts to Negotiate Prospective
Purchaser Agreements (PPAs) at Superfund Sites and Clarifica-
tion of PPA Guidance.
After the enactment of the Brownfields Amendments, EPA issued a
policy on May 31, 2002, Bona Fide Prospective Purchasers and
the New Amendments to CERCLA, which discusses the interplay of
the legislatively created BFPP and EPA's use of PPAs. In that policy,
EPA stated that in most circumstances, PPAs will no longer be needed
for a party to enjoy liability relief under CERCLA as a present owner.
There will continue to be, however, limited circumstances under which
EPA will consider entering into aPPA, such as:
• Significant environmental benefits will be derived from the
project in terms of cleanup;
• The facility is currently involved in CERCLA litigation such
that there is a very real possibility that a party who buys
the facility would be sued by a third party;
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• Unique, site-specific circumstances when a significant
public interest will be served.
Despite the liability relief assurances to BFPPs which the above-
referenced guidance documents provide, many prospective purchas-
ers of contaminated property wanted further protection from EPA
for cleanup work performed by them under EPA supervision. As a
result of this need and to further encourage reuse and redevelop-
ment on contaminated sites, EPA, jointly with the Department of
Justice (DOJ), issued a model administrative order titled Issuance
of CERCLA Model Agreement and Order on Consent for Re-
moval Action by a Bona Fide Prospective Purchaser, for use as
an agreement with aBFPP who intends to perform removal work at
its property. The purpose of the model is to promote land reuse and
revitalization by addressing liability concerns associated with acqui-
sition of contaminated property. In particular, the removal work to
be performed under the model must be of greater scope and magni-
tude than the "reasonable steps to prevent releases" which must be
performed by BFPPs if they are to maintain their protected status
under the statute.
The model provides a covenant not to sue for "existing contamina-
tion" and requires the person performing the removal work to reim-
burse EPA's oversight costs. Contribution protection is also pro-
vided. The model is for use at sites of federal interest where the
work is more significant and complex than other contaminated sites.
iii. Comfort/Status Letters
Under certain circumstances, a prospective purchaser can proceed
in the cleanup and redevelopment of a contaminated site based on a
"comfort/status" letter issued by EPA. Comfort/status letters pro-
vide a prospective purchaser with the information EPA has about a
particular property and EPA's intentions with respect to the property.
The "comfort" comes from realizing what EPA knows about the
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property and what its intentions are in terms of a response. Comfort/
status letters are not "no action" assurances, that is, they are not
assurances by the Agency that it will not take an enforcement action
at a particular site.
Evaluation Criteria for Superfund
Comfort/Status Letters
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; and
• There is no other mechanism available to
adequately address the party's concerns.
Superfund Comfort/Status Letters
On November 8, 1996, EPA issued its Policy on the Issu-
ance of Comfort/Status Letters. The letters provide a party
with relevant releasable information EPA has pertaining to a
particular piece of property, what that information means, and
the status of any ongoing, completed or planned federal
Superfund action at the property. Comfort/status letters may
be considered when they may facilitate the cleanup and rede-
velopment of brownfields; where there is a realistic percep-
tion or probability of incurring Superfund liability; and where
there is no other mechanism available to adequately address a
party's concerns.
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Private Tools
Various private tools can be used to manage environmental
liability risks associated with brownfields and other
properties. These tools may include:
• 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 private parties without
government involvement.
• Environmental Insurance Policies -The insurance
industry offers products intended to allocate and
minimize liability exposures among parties involved
in brownfields redevelopment. These products include
cost cap, pollution legal liability, and secured creditor
policies. Insurance products may serve as a tool to
manage environmental liability risks, however, many
factors affect their utility including the types of
coverage available, the dollar limits on claims, the
policy time limits, site assessment requirements, and
costs for available products. Parties involved in
brownfields redevelopment considering environmental
insurance should always secure the assistance of
skilled brokers and lawyers to help select appropriate
coverage.
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• RCRA Comfort/Status Letters
RCRATreatment, Storage, and Disposal (TSD) facilities also
offer unique challenges in terms of cleanup and reuse, but
may also provide opportunities for revitalization. Recognizing
that analogous situations existed at RCRA facilities as at
Superfund sites, EPA developed guidance for issuing comfort/
status letters for RCRA facilities. Comfort/Status Letters
for RCRA Brownfield Properties, issued on February 5,2001,
limited the use of such letters to those situations that could
facilitate the cleanup and reuse of brownfields; where there
was a realistic perception or probability of EPA initiating a
RCRA cleanup action; and where there was no other mecha-
nism to adequately address the party's concern.
The use of RCRA comfort/status letters was reiterated and
highlighted in the April 8, 2003 guidance Prospective Pur-
chaser Agreements and Other Tools to Facilitate Cleanup
and Reuse of RCRA Sites. That guidance also recognizes
that RCRAPPAs as well as the February 23, 2003 Final
Guidance on Completion of Corrective Action Activities
at RCRA Facilities were valuable tools to help revitalize RCRA
sites. The guidance provides examples where RCRAPPAs
have been successfully used and identifies certain factors that
should be considered before issuing aRCRAPPA.
iv. Windfall Lien Guidance, Comfort Letters, and
Settlements
The Brownfields Amendments also acknowledged the possibility of
a windfall lien for BFPPs who may benefit in the purchase of a
contaminated property where the fair market value of the property is
increased due to a cleanup using Superfund money. That is, the
United States, after spending Superfund money for cleanup at aprop-
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erty, may have a windfall lien on the property for the lesser of the
unrecovered response costs or the increase in fair market value at
the property attributable to the Superfund cleanup. The windfall lien
provision is found in CERCLA § 107(r), and is a new lien provision
that does not supplant the lien provision found in CERCLA § 107(1).
EPA and DOJ jointly issued guidance on the windfall lien provision,
Interim Enforcement Discretion Policy Concerning "Windfall
Liens" Under Section 107 (r) of CERCLA, on July 16, 2003. In
addition to explaining how EPA intends to use the new windfall lien,
and when EPA will seek to enforce or will not seek to enforce, there
are two attachments to the guidance: a sample "comfort letter" that
explains to the recipient whether EPA believes there is a possible
windfall lien applicable to the property, and a model settlement docu-
ment, whereby a party to whom the windfall lien provision applies
may settle with EPA in exchange for release of the windfall lien both
now and in the future.
The windfall lien, unlike the lien under CERCLA § 107(1), has no
applicable statute of limitations and is most likely to be filed and re-
corded only after a BFPP comes into possession of the property.
Additionally, the model settlement document for releasing the wind-
fall lien does not provide a covenant not to sue. This guidance was
also accompanied by a Windfall Lien Frequently Asked Questions
fact sheet issued on July 16,2003.
In January 2008, EPA issued another windfall lien guidance, titled
Windfall Lien Administrative Procedures and the associatedMot/e/
Notice of Intent to File a Windfall Lien Letter. These documents
provide guidance on the timing for filing notice of a windfall lien on a
property after acquisition by a BFPP and the EPA administrative
procedures that should accompany filing a windfall lien notice.
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B. Lenders and Local Governments
1. CERCLA Liability Protections for Lenders and
Local Governments
In the 1990s, it became apparent to EPA and DO J that liability con-
cerns and fears of enforcement were discouraging financial institu-
tions from lending money to developers of contaminated land, and
municipalities from exercising their governmental involuntary acqui-
sition rights and performing cleanup functions on such properties.
EPA initially tried to address the concerns of lenders and municipali-
ties through the Lender Liability Rule promulgated in 1992. How-
ever, a federal court ruling vacated the Lender Liability Rule on the
grounds that "EPA lacked authority to issue" the rule as a binding
regulation. Kelly v. EPA. 15 F.3d 1100 (D.C. Cir. 1994), reh. de-
nied, 25 F.3d 1088 (D.C. Cir. 1994), cert, denied. American Bank-
ers Ass'nv. Kelly. 115 S.ct. 900 (1995). After the court decision,
EPA and DO J issued the Policy on CERCLA Enforcement Against
Lenders and Government Entities that Acquire Property Invol-
untarily on September 22,1995, which stated that EPA and DOJ
were not precluded from following the provisions of the rule as en-
forcement policy.
i. Lenders
On August 1,1996, EPA issued a fact sheet summarizing EPA's po-
sition on lender liability titled The Effect ofSuperfund on Lenders
That Hold Security Interests in Contaminated Property. But lend-
ers were concerned that EPA's 1995 enforcement policy did not apply
to contribution actions brought by third parties attempting to recover
their CERCLA response costs from lenders. Partly in response to
these concerns, Congress enacted the Asset Conservation, Lender
Liability, and Deposit Insurance Protection Act of 1996 (Lender Li-
ability Act). Section 2502 of the Lender Liability Act amended
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CERCLA's secured creditor exemption contained in CERCLA
§101(20)(E). Using language very similar to the language of the
CERCLA Lender Liability Rule, CERCLA §§ 101(20)(E)-(G) elabo-
rate on the original exemption by defining key terms and listing ac-
tivities that a lender may undertake without forfeiting the exemption.
Under the statute, a lender is not an "owner or operator" under
CERCLA if, "without participating in the management" of avessel or
facility, it holds indicia of ownership primarily to protect its security
interest. CERCLA § 101 (20)(E)(i). "Participation in management"
is further defined in the statute in § 101 (20)(F). Additional informa-
tion is available in the "Participation in Management" text box below.
After the enactment of the Lender Liability Act, EPA issued guid-
ance to further clarify the circumstances in which EPA will apply the
provisions of the Lender Liability Rule and its preamble in its inter-
pretation of CERCLA's secured creditor exemption. See Policy on
"Participation in Management" Defined
A lender "participates in management" (and will not
qualify for the exemption) if the lender:
• Exercises decision-making control over environmental
compliance related to the facility, and in doing so, under-
takes responsibility for hazardous substance handling or
disposal practices;
• Exercises control at a level similar to that of a manager
of the facility, and in doing so, assumes or manifests re-
sponsibility with respect to day-to-day decision-making
on environmental compliance; or
• All, or substantially all, of the operational (as opposed to
financial or administrative) functions of the facility other
than environmental compliance.
Continued next page...
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"Participation in Management" Defined (cont'd)
The term "participate in management" does not in-
clude certain activities such as when the lender:
• Inspects the facility;
• Requires a response action or other lawful means to
address a release or threatened release;
• Conducts a response action under CERCLA §
107(d)(l) or underthe direction of an on-scene coor-
dinator;
• Provides financial or other advice in an effort to pre-
vent or cure default; or
• Restructures or renegotiates the terms of the secu-
rity 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 the lender:
• Sells, releases (in the case of a lease finance
transaction), or liquidates the facility;
• Maintains business activities or winds up operations;
• Undertakes CERCLA § 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 of
foreclosure, lists the property with a broker or
advertises it for sale in an appropriate publication.
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Interpreting CERCLA Provisions Addressing Lenders and Invol-
untary Acquisitions by Government Entities (1997) and subsequent
fact sheets. EPA's subsequent lender policy explains that when in-
terpreting the amended secured creditor exemption, EPA will treat
the Lender Liability Rule and its preamble as authoritative guidance.
ii. Local Governments
Section 2504 of the Lender Liability Act validates the portion of the
CERCLA Lender Liability Rule that addresses involuntary acquisi-
tions by government entities. State or local governments that ac-
quire property by involuntary means such as bankruptcy, tax delin-
quency, or abandonment are excluded from the definition of "owner
or operator" in CERCLA, and therefore are not liable under CERCLA
Section 107(a). CERCLA § 101 (20)(D). There is also a third-party
affirmative defense available for government entities that acquire
property "by escheat, or through any other involuntary transfer or
acquisition, or through the exercise of eminent domain authority by
pur chase or condemnation." CERCLA § 101(35)(A)(ii).
EPA's 1995 enforcement policy on involuntary acquisition by lenders
and local governments was followed with the guidance memoran-
dum, Municipal Immunity from CERCLA Liability for Property
Acquired through Involuntary State Action (October 20, 1995).
These two policy memoranda clarified some of the issues surround-
ing involuntary municipal acquisition of properties. EPA provided
further clarification on these issues in a fact sheet, The Effect of
Superfund on Involuntary Acquisitions of Contaminated Prop-
erty by Government Entities issued in December 1995. EPA con-
tinues to follow as guidance the Lender Liability Rule and the two
1995 guidance documents and subsequent fact sheets when addressing
local government liability.
State or local government entities that acquire property after the en-
actment of the 2002 Brownfields Amendments and that are con-
cerned about potential contamination may want to seek the advice of
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counsel before taking title to ensure that they will have a liability
protection (e.g., BFPP status or protection under the involuntary ac-
quisition provision or third-party defense). State or local government
entities should note that to achieve BFPP status, an entity must con-
duct AAI prior to purchase and comply with the other BFPP require-
ments. Conducting proper AAI prior to purchase is also important
for state and local government entities relying on the BFPP protec-
tion for brownfield grant eligibility.
2 Underground Storage Tanks (LIST) Lender
Liability Rule
Local communities often struggle with what to do about polluted,
abandoned gas stations and other petroleum-contaminated proper-
ties, generally referred to as petroleum brownfields, which can be
eyesores and blight communities. Often, citizens and businesses shy
away from the reuse potential of these properties, fearing the poten-
tial liability of environmental contamination under Subtitle I of RCRA.
The Underground Storage Tanks (UST) Lender Liability Rule
(40 C.F.R. § 280.200-.300) is an example of how EPA has ad-
dressed fears of potential liability to encourage the reuse of aban-
doned gas station sites.
While developing the UST Lender Liability Rule, EPA recognized
that many security interest holders were abandoning the UST prop-
erties they held as collateral instead of foreclosing on those proper-
ties and risking potential liability for cleanup costs.
The UST Lender Liability Rule exempts certain classes of "own-
ers" and "operators" (i.e., holders of security interests as described
in the rule) from identified RCRA regulatory requirements including
corrective action, technical requirements, and financial responsibility,
provided that specified criteria are met.
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By allowing security interest holders to market their foreclosed prop-
erties without incurring RCRA liability, the UST Lender Liability Rule
encourages the reuse of gas stations that may otherwise end up aban-
doned. The rule also protects human health and the environment by
requiring security interest holders to empty any tanks they acquire
through foreclosure, thus preventing future releases. Additional in-
formation on the UST Lender Liability Rule is available on EPA's
Web site athttp://www.epa.gov/oust/fedlaws/280_i.pdf.
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III. Other Considerations for
Entities Seeking to Clean
Up, Reuse and Revitalize
Contaminated Property
A. Long-Term Stewardship
The success of the Brownfields program in responding to and
even bolstering market demand for properties with known or
suspected contamination has led to increased demand for con-
taminated properties that are cleaned up under the other EPA
programs. The demand for and use of such sites includes those
properties where some contamination remains, but is controlled
on site and therefore long-term stewardship activities are needed
to ensure the continued protection of the remedy and human
health and the environment.
Long-term stewardship generally refers to the activities and
processes used to control and manage residual contamination,
limit inappropriate exposures, control land and resource uses,
and ensure the continued protectiveness of "engineering" con-
trols and "institutional" controls at sites. Long-term steward-
ship also takes on greater importance with the increased de-
mand for the reuse of properties, especially properties where
cleanup does not result in unrestricted uses or unlimited expo-
sures.
Physical or "engineering" controls are the engineered physical
barriers or structures designed to monitor and prevent or limit
exposure to the contamination. Certain engineered cleanups
will involve ongoing Operation and Maintenance (O&M), moni-
toring, evaluation, periodic repairs, and sometimes replacement
of remedy components.
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Examples of Engineering Controls
Landfill soil caps
Impermeable liners
Other containment covers
Underground slurry walls
Fences
Bioremediation
Groundwater pump-and-treat and monitoring
systems
Legal or "institutional" controls are non-engineered instruments, such
as administrative and/or legal controls, intended to minimize the
potential for human exposure to contamination by limiting land or
resource use. Institutional controls may be used to supplement engi-
neering controls and also must be implemented, monitored, and evalu-
ated for effectiveness as long as the risks at a site are present.
Informational devices, such as signs, state registries and deed no-
tices, are commonly used informational, non-enforceable tools. In
February 2005, to further explain the requirements of Institutional
Controls, EPA published a guidance document titled, Institutional
Controls: A Citizen's Guide to Understanding Institutional Con-
trols at Superfund, Brownftelds, Federal Facilities, Underground
Storage Tanks, and Resource Conservation and Recovery Act
Cleanups. EPAhas also developed two cross-program guidances
addressing the entire lifecycle of institutional controls, from evalua-
tion to implementation and enforcement. These and other institu-
tional controls guidance is available on the EPA institutional controls
Web page at http://www.epa.gov/superfund/policy/ic/index.htm.
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Examples of Institutional Controls
Government Controls ~ Permits, Zoning
Informational Devices ~ Notices, Advisories,
Warnings
Proprietary Controls — Easements, Restrictive
Covenants
Enforcement Mechanisms ~ Administrative
Orders, Cleanup Agreements
EPA, the states, and local governments have increased their knowl-
edge about the long-term requirements needed to reuse and revital-
ize contaminated sites. The cleanup remedies for contaminated sites
and properties often require the management and oversight of on-
site waste materials and contaminated environmental media for long
periods of time. EPA and its regulatory partners implement (or en-
sure that responsible parties implement) long-term stewardship af-
ter construction of the remedy for site cleanup and for as long as
wastes are controlled on site. Long-term stewardship can last many
years, decades, or in some cases, even longer. Long-term steward-
ship involves ongoing coordination and communication among nu-
merous stakeholders, each with different responsibilities, capabili-
ties, and information needs.
Even though the various cleanup programs have different authori-
ties, there are common elements to address the long-term steward-
ship efforts. For example, under Superfund, long-term stewardship
activities are performed as part of the O&M of a remedy. Respon-
sibility for O&M is contingent upon whether the cleanup was con-
ducted by a potentially responsible party (PRP), including federal
facilities, or whether EPA funded the cleanup. Under the RCRA
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program, cleanups are conducted in connection with the closure of
regulated units and in facility-wide corrective action under either a
permit, imminent hazard, or other order or agreement.
EPA, under the Brownfields program, provides cleanup grants to
state and local governments and non-profit organizations to carry out
cleanup activities, including monitoring and enforcement of institu-
tional controls.
Pursuant to the Underground Storage Tanks (UST) program, when
a release has been detected or discovered at an UST, the UST owner/
operator must perform corrective action to clean up any contamina-
tion caused by the release. Under cooperative agreements between
EPA and the states, states are largely responsible for overseeing
corrective actions in connection with underground storage tanks, in-
cluding long-term stewardship. EPAis generally responsible for over-
seeing the corrective actions, including long-term stewardship activi-
ties on tribal lands.
More information onlong-tenn stewardship is availableonEPAsLandRevi-
talization Web site at http://wwwepa.gov/LANDREVITALIZAnON/
ltstf_report/what is_longterm_stewardship.htm
B. State Response Programs
1. Voluntary Cleanup Programs
State response programs play a significant role in assessing and clean-
ing up brownfield sites. As Congress recognized in the legislative
history of the Brownfield Amendments,
"[tjhe vast majority of contaminated sites across the
Nation will not be cleaned up by the Superfund pro-
gram. Instead, most sites will be cleaned up under
State authority."
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Voluntary cleanup programs (VCPs) are typically the state authority
used to address brownfield and other lower-risk sites. Links to state
VCPs can be found on EPA's Web site at http://www.epa.gov/
brownfields/state_tribal.htm#links.
EPA has historically supported the use of VCPs and continues to
provide grant funding to establish and enhance VCPs. EPA also
continues to provide general enforcement assurances to individual
states to encourage the assessment and cleanup of sites addressed
under VCP oversight. This approach to VCPs was codified in the
Brownfields Amendments as Comprehensive Environmental Re-
sponse, Compensation, and Liability Act (CERCLA) § 128:
• CERCLA § 128(a) addresses grant funding and Memoranda
of Agreements (MO As) for state response programs (i.e.,
VCPs);
• CERCLA § 128(b) addresses the "enforcement bar" which
limits EPA enforcement actions, under CERCLA § § 106(a)
and 107(a), at sites addressed in compliance with such
programs; and
CERCLA § 128(b)(l)(C) addresses the establishment and
maintenance of a public record by a state to document the
cleanup and potential use restrictions of sites addressed by a
VCP
2 Memoranda of Agreement
Since 1995, EPAhas encouraged the use of VCPs at lower-risk sites
by entering into non-binding Memoranda of Agreement (MO As) with
interested states based on a review of the state VCP's capabilities.
MOAs can be a valuable mechanism to support and strengthen
efforts to achieve protective cleanups under VCP oversight. The
purpose of the MOAs is to foster more effective and efficient
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working relationships between EPA and individual states regarding
the use of their VCPs. Specifically, MOAs define EPA and state
roles and responsibilities and provide EPA recognition of the state's
capabilities. MOAs typically include a general statement of EPA
enforcement intentions regarding certain sites cleaned up under the
oversight of a VCP Anumber of states are also using their VCPs to
address facilities subject to corrective action under the Resource
Conservation and Recovery Act (RCRA). As a result, EPA and
several states have expanded upon the CERCLA VCP MOA con-
cept to address some facilities subject RCRA corrective action. Those
agreements are commonly known as RCRA Memoranda of Under-
standing (MOUs). EPA has also entered into a few MOAs that
address multiple cleanup programs and are consistent with EPA's
One Cleanup Program. More information on EPA's One Cleanup
Program is available on EPA's Web site at http://www epagov/oswer/
onecleanupprogram/.
Copies of a specific MOA or MOU, and additional information about
state and tribal response programs are available from EPA's Web
site at http://www.epa.gov/swerosps/bf/html-doc/statemoa.htm.
3: Eligible Response Sites
The Brownfields Amendments included the concept of an eligible
response site (CERCLA § 101(41)), which is a site at which EPA
may not take an enforcement action under § § 106 or 107 in certain
circumstances, and that may be eligible for deferral from listing on
the National Priorities List (NPL) in certain circumstances. CERCLA
§§ 128(b), 105(h). If an EPA Region determines that a site is not an
"eligible response site," that site will not be subject to the deferral
provisions in § 105(h) and the limitations on EPA's enforcement and
cost recovery authorities under § 128(b). For more information on
eligible response sites, please see EPA's March 2003 guidance,
Regional Determinations Regarding Which Sites Are Not "Eli-
gible Response Sites. "
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C. Supplemental Environmental Projects
(SEPs)
Supplemental Environmental Projects (SEPs) may play a key role in
revitalizing contaminated sites. SEPs are environmentally beneficial
proj ects undertaken by a party, in a settlement of an environmental
enforcement action, but which the violator is not otherwise legally
required to perform. SEPs are critical to site revitalization because
they are one of only a few tools EPA can use to enhance the envi-
ronment of those communities that were directly put at risk by the
violator. The successful use of SEPs is even more important be-
cause many sites are in environmental justice communities.
As stated in the November 2006 BrownfieldSites and Supplemen-
tal Environmental Projects (SEPs) fact sheet, EPA does not ap-
prove SEPs that require assessment and/or cleanup of brownfield
sites because appropriations law prohibits SEP activities that are
funded by Congress. Congress provides funds for assessment and
cleanup activities to EPA's brownfields program. However, EPA
does approve SEP activities that complement brownfield site activi-
ties, such as: green building proj ects; proj ects that call for the viola-
tor to provide energy-efficient building materials to a redeveloper;
urban forest proj ects; and stream restoration proj ects. To learn more
about the general requirements of a SEP, please refer to U.S. EPA
Supplemental Environmental Projects Policy ("U.S. EPA SEP
Policy") (May \J998).
DL OECA Guiding Principles
OECA is guided in the development of policy documents not only by
enforcement principles such as "polluter pays" and "enforcement
first," but also by broader principles that have been established to
carry out the Agency's mission. Key among these guiding principles
are:
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• the recognition and addressing of environmental j ustice issues;
• the requirement of public participation in the Agency's work;
and
• financial assurance to ensure the costs of cleanup are
addressed.
1. Environmental Justice
EPA recognizes that minority and/or low-income communities
frequently may be exposed disproportionately to environmental harms
and risks. As a result, the Agency works to protect these and other
communities burdened by adverse human health and environmental
effects of its programs and has incorporated environmental justice
as a priority throughout the Agency. Accordingly, EPA maintains its
ongoing commitment to the fair treatment and meaningful involve-
ment of all people regardless of race, color, national origin, or income
with respect to the development, implementation, and enforcement
of environmental laws, regulations, and policies, including the
brownfields program. More information about EPA's environmental
justice program as it relates to Superfund can be found at http://
www.epa.gov/oswer/ej/index.html.
EPA's Office of Enforcement and Compliance Assurance (OECA)
is committed to improving environmental performance through com-
pliance with environmental requirements, preventing pollution, pro-
moting environmental stewardship, and by incorporating environmental
justice across the spectrum of our programs, policies, and activities.
When working with local environmental justice communities, private
parties should address the following environmental justice issues:
• Meaningfully involve the community in the planning, cleanup
and revitalization process;
• Review the cumulative effects of multiple sources of
contamination in close proximity;
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• Ensure an equitable distribution of brownfields assistance to
environmental justice communities;
• Adhere to community commitments made in brownfields grant
proposals;
• Assist environmental justice communities in obtaining
independent technical advisors to help communities navigate
the brownfields cleanup and redevelopment process;
• Provide equal opportunity for local minority owned businesses
specializing in environmental assessment and cleanup work
to compete for contracts needed to plan, cleanup and revitalize
brownfields; and
• Take steps to limit the displacement, equity loss and cultural
loss of the local community.
2 Public Participation
Citizens are an essential component of the Superfund cleanup and
RCRA permitting processes and for the revitalization of these sites
and brownfield sites. The formal public participation activities, re-
quired by law or regulation, are designed to provide citizens with both
access to information and opportunities to participate in the cleanup
process. EPA uses the term "public participation" to denote the
activities that:
• Encourage public input and feedback;
• Encourage a dialogue with the public;
• Provide access to decision-makers;
• Assimilate public viewpoints and preferences; and
• Demonstrate that those viewpoints and preferences have been
considered by the decision-makers.
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"The public" in this case refers to not only private citizens, but also
representatives of consumer, environmental, and minority associa-
tions; trade, industrial, agricultural, and labor organizations; public
health, scientific, and professional societies; civic associations; pub-
lic officials; and governmental and educational associations.
Considered in this broad sense, public participation can mean any
stakeholder activity carried out to increase the public's ability to un-
derstand and influence the Superfund cleanup and RCRA permitting
processes and the revitalization of contaminated sites.
In the revitalization context, working with a variety of community
members, local planners, and elected officials is an effective way to
identify and integrate long-term community needs into the reuse plans
for the site. Redevelopment planning enables citizens to realize
their vision for the future reuse of the site. This process should
encourage participation of all community members in goal develop-
ment, action planning, and implementation. By considering a
community's vision of future land uses for contaminated sites, EPA
often can tailor cleanup options to accommodate community goals.
While successful redevelopment planning can occur at any stage of
a cleanup, redevelopment planning should begin as early as possible
in the remedial process. The planning process can last several days
or months depending on the issues facing the community. It is vital to
help communities think of long-term strategies for sustainable future
land use and EPA should begin the public participation process in the
earliest stages of redevelopment.
3: Financial Assurance
Financial assurance requirements are implemented under Superfund
and RCRA to ensure that adequate funds are available to address
closure and cleanup of facilities or sites that handle hazardous mate-
rials.
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Financial assurance requirements can play an important role in pro-
moting the revitalization of contaminated sites. Where the financial
resources are available for cleanup and closure activities, entities
interested in reusing or redeveloping the property are not confronted
with the question of where to obtain the resources for cleaning up
the property. When there are inadequate financial assurance funds,
EPA or the states may have to spend taxpayer money to fund clean-
ups. This not only shifts the responsibility away from the liable party,
it may also result in a significant delay in closure or cleanup activi-
ties. While the property awaits the performance of closure or cleanup
activities, it is often difficult to attract outside parties to the property
for further reuse and redevelopment.
Given the importance of financial assurance requirements and con-
cerns that entities were not providing adequate financial assurance
in accordance with their obligations, financial responsibility was se-
lected as a national enforcement and compliance priority for the fis-
cal year (FY) 2007-2008 period. The goal of the financial responsi-
bility priority is to ensure that EPA optimizes its financial safeguards
under the existing financial assurance requirements through compli-
ance assistance, compliance monitoring, and enforcement. OECA
has developed tools, guidance, and training to assist the Regions and
states in these areas, which are available on EPA's Web site at
http://cfpub.epa gov/compliance/data/planning/priorities/financialresp/
resources/.
E Initiatives and Programs
OSRE has worked closely with other EPA offices including the Of-
fice of Brownfields and Land Revitalization (OBLR), the Office of
Site Remediation and Technology Innovation (OSRTI), and the Of-
fice of Solid Waste (OSW), all within the Office of Solid Waste and
Emergency Response (OSWER), to develop and launch newinitia-
47
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tives or programs to address certain revitalization challenges. Four
of those initiatives ~ the Environmentally Responsible Redevelop-
ment and Reuse (ER3) Initiative, brownfields grants and state/tribal
funding, the Superfund Redevelopment Initiative (SRI), andtheRCRA
Brownfields Prevention Initiative ~ are described below.
1. ER3 - The Environmentally Responsible Redevel-
opment and Reuse Initiative
OSRE formally launched its Environmentally Responsible Redevel-
opment and Reuse (ER3) Initiative in the fall of 2004 at the National
Brownfields Conference in St. Louis, MO. The genesis for ER3
was the recognition by former Administrator Christine Todd Whitman
that the "built" environment has a tremendous impact on the natural
environment and that every office within EPA should work to reduce
that impact. OSRE realized that it could reduce the impact of rede-
velopment by encouraging sustainable redevelopment of contami-
nated sites by offering enforcement and liability relief incentives to
developers and other parties. Historically, under the liability schemes
found in both Superfund and RCRA, developers faced enforcement
and liability concerns if they purchased or operated contaminated
land for redevelopment. To some extent, these concerns were ad-
dressed, at least for Superfund sites, by the 2002 Brownfields Amend-
ments. ER3 was designed to provide extra relief as an enforcement
incentive not only to develop, but to develop in a sustainable manner.
For more information on ER3, please visit the ER3 Web site at
http://www.epa gov/compliance/cleanup/revitalization/er3/index.html.
ER3 is composed of three interconnected principles. First, OSRE
will provide an extra layer of liability relief incentives through a vari-
ety of tools available to it (e.g. prospective purchaser agreements
(PPAs), comfort letters, etc.). That is, OSRE will provide comfort
regarding the statutory requirements of CERCLA or RCRA. In re-
turn for this "extra" comfort, developers will be required to develop
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sustainably. However, OSRE recognizes that many builders do not
know how to build with sustainable principles. So as the second
component, the ER3 team created a national network of outside part-
ners who have this expertise. Finally, the third component is joint
outreach and education on sustainable development principles by the
OSRE ER3 team, other EPA offices, and the ER3 partners. Infor-
mation on the ER3 partners is available on EPA's Web site at http://
www.epa.gov/compliance/cleanup/revitalization/er3/partner/
index.html#partners.
In March 2006, OECA Assistant Administrator Granta Nakayama
issued a memorandum to EPARegions calling for ER3 pilot proj ects.
To date, there have been two pilots and the ER3 team is in the pro-
cess of developing others. For information on ER3 pilot proj ects, see
EPA's Web site at http://www.epa.gov/compliance/cleanup/
revitalization/er3/pilot.html.
2 Brownfields Grants and State/Tribal Funding
The 2002 Brownfield Amendments established a competitive grant
program for the assessment and cleanup of brownfield sites, along
with environmental job training under CERCLA § 104(k). Regard-
ing site cleanup, the brownfield grant program provides direct fund-
ing forbrownfields assessment, cleanup, and revolving loans (that is,
establishment of a revolving loan fund for eligible entities to make
Office of Brownfields and Land
Revitalization Grants and Funding
Web Access
For information on the EPAbrownfields
grant program, please refer to:
http://www.epa.gov/brownfields
49
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loans to be used for cleanup), which helps communities revitalize
blighted sites by allowing them to take what is often the first step in
the process - addressing potential contamination. To be eligible for a
brownfield grant, an entity must be an eligible entity and must plan to
use the grant funding at an eligible "brownfield site." See CERCLA
§§ 104(k)(l), 104(k)(3), and 101(39). The 2002 Brownfields Amend-
ments define a brownfield site broadly, but exclude certain sites from
funding eligibility. Still other sites are excluded unless EPA makes a
property-specific determination for funding.
CERCLA § 104(k)(4)(B) provides certain other restrictions on the
use of brownfield grant funding, such as the prohibition on the use of
funds to pay response costs at a site at which a recipient of the
federal grant funds would be considered liable as a PRP
Because state and tribal response programs play a significant role in
cleaning up brownfields, the Brownfields Amendments also autho-
rized EPA to provide assistance to states and tribes to establish or
enhance their response programs. See CERCLA § 128(a).
3. The Superfund Redevelopment Initiative
EPA's Superfund Redevelopment Initiative helps communities return
some of the nation's worst hazardous waste sites to safe and pro-
ductive use. While cleaning up these Superfund sites and making
them protective of human health and the environment, the Agency is
working with communities and other partners in considering future
use opportunities and integrating appropriate reuse options into the
cleanup process.
EPA's goal is to make sure that at every cleanup site, the Agency
and its partners have an effective process and the necessary tools
and information needed to fully explore future uses, before the cleanup
remedy is implemented. This gives the Agency the best chance of
50
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making its remedies consistent with the likely future use of a site. In
turn, EPA gives communities the best opportunity to productively use
sites following cleanup.
As part of the Superfund Redevelopment Initiative, EPA has devel-
oped a series of tools to aid in the redevelopment of Superfund sites.
One principal tool is the Ready for Reuse (RfR) Determination docu-
ment, which the Agency creates to provide potential users of
Superfund sites with an environmental status report. This documents
a technical determination by EPA, in consultation with states, tribes,
and local governments, that all or a portion of a real estate property
at a site can support specified types of uses and remain protective of
human health and the environment. For more information on RfR
Determinations, please refer to http://www.epa.gov/superfund/
programs/recycle/policy/reuse.html.
Before EPA created the RfR determination, potential users often
had to seek out information about a site's environmental condition
from many different sources, and the information that was available
was often expressed in terms difficult for the marketplace to inter-
pret. This meant that many sites able to accommodate certain types
of uses were needlessly difficult to market. With the creation of the
RfR determination, potential users and the real estate marketplace
will have an affirmative statement written in plain English and ac-
companied by supporting decision documentation, that a site identi-
fied as ready for reuse will remain protective as long as all required
response conditions and use limitations identified in the site's response
decision documents and land title documents continue to be met.
4. The RCRA Brownfields Prevention
Initiative
A potential RCRA brownfield is a RCRA facility that is not in full
use, where there is redevelopment potential, and where reuse or re-
development of that site is slowed due to real or perceived concerns
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about actual or potential contamination, liability, and RCRA require-
ments. The RCRA Brownfields Prevention Initiative was estab-
lished by EPA to encourage the reuse of potential RCRAbrownfields
so that the land better serves the needs of the community, either
through more productive commercial or residential development or
as greenspace. More information on the RCRA Brownfields Pre-
vention Initiative is available onEPAs Web site at http://www.epagov/
swerosps/rcrabf/.
The Initiative links EPA's brownfields program with EPA's RCRA
Corrective Action Program and other Agency cleanup programs, as
well as with state cleanup programs to help communities address
contaminated and often blighted properties that may stand in the way
of economic vitality. The initiative includes:
• Showcasing cleanup and revitalization approaches through
RCRA Brownfields Prevention Pilot proj ects;
• Addressing barriers to cleanup and revitalization with Targeted
Site Efforts (TSEs);
• Supporting outreach efforts to EPA Regional offices, states,
and the RCRA community through conferences, training,
Internet seminars, and the RCRABrownfields Web page; and
• Identifying policies that inadvertently may be hindering cleanup,
and addressing them with guidance and technical assistance,
or through other means.
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APPENDICES
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Appendix A
The "Common Elements Guidance"
Issued March 6,2003
The following contains the text of a policy issued by the U.S.
Environmental Protection Agency (EPA). Formatting (margins,
page numbering, etc.) may be different than the original hard
copy to make the document more easily readable. This text is a
courtesy copy of the official policy. If any discrepancies are
found, the file copy (hard copy original) which resides at the
U.S. EPA provides the official policy and is available on the
Agency's Web site at http://www.epa.gov/compliance/resources/
policies/cleanup/superfund/common-elem-guide.pdf.
U.S. Environmental Protection Agency
Washington, B.C. 20460
Office of Enforcement and Compliance Assurance
March 6,2003
MEMORANDUM
Subject: Interim Guidance Regarding Criteria Landowners Must Meet in
Order to Qualify for Bona Fide Prospective Purchaser, Con-
tiguous Property Owner, or Innocent Landowner Limitations
on CERCLA Liability ("Common Elements")
From: Susan E. Bromm, Director
Office of Site Remediation Enforcement
To: Director, Office of Site Remediation and Restoration, Reg. I
Director, Emergency and Remedial Response Division, Reg. II
Director, Hazardous Site Cleanup Division, Reg. Ill
Director, Waste Management Division, Reg. IV
Directors, Superfund Division, Regs. V, VI, VII and IX
Assistant Regional Administrator, Office of Ecosystems Pro-
tection and Remediation, Reg. VIII
Director, Office of Environmental Cleanup, Reg. X
Director, Office of Environmental Stewardship, Reg. I
Director, Environmental Accountability Division, Reg. IV
Regional Counsel, Regs. II, III, V, VI, VII, IX, and X
Assistant Regional Administrator, Office of Enforcement, Com-
pliance, and Environmental Justice, Reg. VIII
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I. INTRODUCTION
The Small Business Liability Relief and Brownfields Revitalization Act.
("Brownfields Amendments"), Pub. L. No. 107-118, enacted in January 2002.
amended the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), to provide important liability limitations for land-
owners that qualify as: (1) bona fide prospective purchasers, (2) contiguous
property owners, or (3) innocent landowners (hereinafter, "landowner liabil-
ity protections" or "landowner provisions").
To meet the statutory criteria for a landowner liability protection, a land-
owner must meet certain threshold criteria and satisfy certain continuing
obligations.' Many of the conditions are the same or similar under the three
landowner provisions ("common elements"). This memorandum is intended
to provide Environmental Protection Agency personnel with some general
guidance on the common element of the landowner liability protections.
Specifically, this memorandum first discusses the threshold criteria of per-
forming "all appropriate inquiry" and demonstrating no "affiliation" with a
liable party. The memorandum then discusses the continuing obligations:
• Compliance with land use restrictions and not impeding the
effectiveness or integrity of institutional controls;
• Taking "reasonable steps" with respect to hazardous substances
affecting a landowner's property;
• Providing cooperation, assistance and access;
• Complying with information requests and administrative
subpoenas; and
• Providing legally required notices.
A chart summarizing the common elements applicable to bona fide prospec-
tive purchasers, contiguous property owners, and innocent landowners is
attached to this memorandum (Attachment A). In addition, two documents
relating to reasonable steps are attached to this memorandum: (1) a "Ques-
tions and Answers" document (Attachment B); and (2) a sample site-specif-
ics Comfort/Status Letter (Attachment C).
This memorandum addresses only some of the criteria a landowner must
meet in order to qualify under the statute as a bona fide prospective pur-
1 See CERCLA §§ 101(40)(B)-(H), 107(q)(l)(A), 101(35)(A)-(B).
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chaser, contiguous property owner, or innocent landowner (i.e., the com-
mon elements described above). Other criteria (e.g. the criterion that a
contiguous property owner "did not cause, contribute, or consent to the
release or threatened release," found in CERCLA § 107(q)(l)(A)(i), and the
criterion that a bona fide prospective purchaser and innocent landowner
purchase the property after all disposal of hazardous substances at the
facility, found in CERCLA § § 101 (40)(A), 101 (3 5)(A)), are not addressed in
this memorandum. In addition, this guidance does not address obligations
landowners may have under state statutory or common law.
This memorandum is an interim guidance issued in the exercise of EPA's
enforcement discretion. As EPA gains more experience implementing the
Brownfields Amendments, the Agency may revise this guidance. EPA wel-
comes comments on this guidance and its implementation. Comments may
be submitted to the contacts identified at the end of this memorandum.
II. BACKGROUND
The bona fide prospective purchaser provision, CERCLA § 107(r), provides
a new landowner liability protection and limits EPA's recourse forunrecov-
ered response costs to a lien on property for the increase in fair market value
attributable to EPA's response action. To qualify as a bona fide prospective
purchaser, a person must meet the criteria set forth in CERCLA § 101 (40).
many of which are discussed in this memorandum. Apurchaser of property
must buy the property after January 11,2002 (the date of enactment of the
Brownfields Amendments), in order to qualify as a bona fide prospective
purchaser. These parties may purchase property with knowledge of con-
tamination after performing all appropriate inquiry, and still qualify for the
landowner liability protection, provided they meet the other criteria set forth
in CERCLA § 101(40).2
The new contiguous property owner provision, CERCLA § 107(q), excludes
from the definition of "owner" or "operator" a person who owns property
that is "contiguous" or otherwise similarly situated to, a facility that is the
only source of contamination found on his property. To qualify as a con-
tiguous property owner, a landowner must meet the criteria set forth in
2 For a discussion of when EPA will consider providing a prospective purchaser
with a covenant not to sue in light of the Brownfields Amendments, see "Bona Fide
Prospective Purchasers and the New Amendments to CERCLA," B. Breen (May
31,2001).
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CERCLA § 107(q)(l)(A), many of whichare common elements. This land-
owner provision "protects parties that are essentially victims of pollution
incidents caused by their neighbor's actions." S. Rep. No. 107-2, at 10
(2001). Contiguous property owners must perform all appropriate inquiry
prior to purchasing property. Persons who know, or have reason to know.
prior to purchase, that the property is or could be contaminated, cannot
qualify for the contiguous property owner liability protection.3
The Brownfields Amendments also clarified the CERCLA § 107(b)(3) inno-
cent landowner affirmative defense. To qualify as an innocent landowner, a
person must meet the criteria set forth in section 107(b)(3) and section
101(35). Many of the criteria in section 101(35) are common elements.
CERCLA § 101(35)(A) distinguishes between three types of innocent land-
owners. Section 101 (3 5)(A)(i) recognizes purchasers who acquire property
without knowledge of the contamination. Section 101(35)(A)(ii) discusses
governments acquiring contaminated property by escheat, other involun-
tary transfers or acquisitions, or the exercise of eminent domain authority
by purchase or condemnation. Section 101(35)(A)(iii) covers inheritors of
contaminated property. For purposes of this guidance, the term "innocent
landowner" refers only to the unknowing purchasers as defined in section
101(35)(A)(i). Like contiguous property owners, persons desiring to qualify
as innocent landowners must perform all appropriate inquiry prior to pur-
chase and cannot know, or have reason to know, of contamination in order
to have a viable defense as an innocent landowner.
III. DISCUSSION
A party claiming to be a bona fide prospective purchaser, contiguous prop-
erty owner, or section 10 l(35)(A)(i) innocent landowner bears the burden of
proving that it meets the conditions of the applicable landowner liability
protection.4 Ultimately, courts will determine whether landowners in spe-
cific cases have met the conditions of the landowner liability protections
and may provide interpretations of the statutory conditions. EPA offers
some general guidance below regarding the common elements. This guid-
3 CERCLA § 107(q)(l)(C) provides that a person who does not qualify as a
contiguous property owner because he had, or had reason to have, knowledge that
the property was or could be contaminated when he bought the property, may still
qualify for a landowner liability protection as a bona fide prospective purchase, as
long as he meets the criteria set forth in CERCLA § 101(40).
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ance is intended to be used by Agency personnel in exercising enforcement
discretion. Evaluating whether a party meets these conditions will require
careful, fact-specific analysis.
A Threshold Criteria
To qualify as abonafide prospective purchaser, contiguous property owner.
or innocent landowner, a person must perform "all appropriate inquiry"
before acquiring the property. Bona fide prospective purchasers and con-
tiguous property owners must, in addition, demonstrate that they are not
potentially liable or "affiliated" with any other person that is potentially
liable for response costs at the property.
1. All Appropriate Inquiry
To meet the statutory criteria of a bona fide prospective purchaser, contigu-
ous property owner, or innocent landowner, a person must perform "all
appropriate inquiry" into the previous ownership and uses of property be-
fore acquisition of the property. CERCLA§§ 101(40)(B), 107(q)(l)(A)(viii),
10 l(35)(A)(i),(B)(i). Purchasers of property wishing to avail themselves of a
landowner liability protection cannot perform all appropriate inquiry after
purchasing contaminated property. As discussed above, bona fide pro-
spective purchasers may acquire property with knowledge of contamina-
tion, after performing all appropriate inquiry, and maintain their protection
from liability. In contrast, knowledge, or reason to know, of contamination
prior to purchase defeats the contiguous property owner liability protection
and the innocent landowner liability protection.
The Brownfields Amendments specify the all appropriate inquiry standard
to be applied. The Brownfields Amendments state that purchasers of prop-
erty before May 31, 1997 shall take into account such things as commonly
known information about the property, the value of the property if clean, the
ability of the defendant to detect contamination, and other similar criteria.
CERCLA§ 101(35)(B)(iv)(I). Forproperty purchased on or after May 31,
1997, the procedures of the American Society for Testing and Materials
("ASTM"), including the document known as Standard E1527 - 97, entitled
"Standard Practice for Environmental Site Assessments: Phase 1 Environ-
mental Site Assessment Process," are to be used. CERCLA§ 101(35)(B)(iv)(II).
1CERCLA §§101(40), 107(q)(l)(B), 101(35).
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The Brownfields Amendments require EPA, not later than January 2004, to
promulgate a regulation containing standards and practices for all appropri-
ate inquiry and set out criteria that must be addressed in EPA's regulation.
CERCLA§ 101(35)(B)(ii),(iii). The all appropriate inquiry standard will thus
be the subject of future EPA regulation and guidance.
2. Affiliation
To meet the statutory criteria of a bona fide prospective purchaser or con-
tiguous property owner, a party must not be potentially liable or affiliated
with any other person who is potentially liable for response costs.5 Neither
the bona fide prospective purchaser/contiguous property owner provisions
nor the legislative history define the phrase "affiliated with," but on its face
the phrase has a broad definition, covering direct and indirect familial rela-
tionships, as well as many contractual, corporate, and financial relation-
ships. It appears that Congress intended the affiliation language to prevent
a potentially responsible party from contracting away its CERCLA liability
through a transaction to a family member or related corporate entity. EPA
recognizes that the potential breadth of the term "affiliation" could be taken
to an extreme, and in exercising its enforcement discretion, EPA intends to
be guided by Congress' intent of preventing transactions structured to
avoid liability.
5 The bona fide prospective purchaser provision provides, in pertinent part'. The
bona fide prospective purchaser provision provides, in pertinent part: No AFFILIA-
TION — The person is not — (i) potentially liable, or affiliated with any other person
that is potentially liable, for response costs at a facility through — (I) any direct or
indirect familial relationship; or (II) any contractual, corporate, or financial relation-
ship (other than a contractual, corporate, or financial relationship that is created by
the instruments by which title to the facility is conveyed or financed or by a contract
for the sale of goods or services); or (ii) the result of a reorganization of a business
entity that was potentially liable. CERCLA § 101(40(H).
The contiguous property owner provides provisions, in pertinent part: NOT
CONSIDERED TO BE AN OWNER OR OPERATOR — .. .(ii) the person is not — (I) potentially
liable, or affiliated with any oterh person that is potentially liable, for response
costs at a facility through any direct or indirect familial relationship or any
contractual, corporate, or financial relationship (other than a contractual, corporate,
or financial relationship that is created by a contract for the sale of goods or
services); or (II) the result of a reorganization of a business entity that was
potentially liable[.] CERCLA § 107(q)(l)(A)(ii).
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The innocent landowner provision does not contain this "affiliation" lan-
guage. In order to meet the statutory criteria of the innocent landowner
liability protection, however, a person must establish by a preponderance of
the evidence that the act or omission that caused the release or threat of
release of hazardous substances and the resulting damages were caused by
a third party with whom the person does not have an employment, agency.
or contractual relationship. Contractual relationship is defined in section
101(35)(A).
B. Continuing Obligations
Several of the conditions a landowner must meet in order to achieve and
maintain a landowner liability protection are continuing obligations. This
section discusses those continuing obligations: (1) complying with land
use restrictions and institutional controls; (2) taking reasonable steps with
respect to hazardous substance releases; (3) providing full cooperation.
assistance, and access to persons that are authorized to conduct response
actions or natural resource restoration; (4) complying with information re-
quests and administrative subpoenas; and (5) providing legally required
notices.
1. Land Use Restrictions and Institutional Controls
The bona fide prospective purchaser, contiguous property owner, and in-
nocent landowner provisions all require compliance with the following on-
going obligations as a condition for maintaining a landowner liability pro-
tection:
• the person is in compliance with any land use restrictions
established or relied on in connection with the response action and
• the person does not impede the effectiveness or integrity of any
institutional control employed in connection with a response action.
CERCLA§§ 101(40)(F), 107(q)(l)(A)(V), 101(35)(A). Initially, there are two
important points worth noting about these provisions. First, because insti-
tutional controls are often used to implement land use restrictions, failing to
comply with a land use restriction may also impede the effectiveness or
integrity of an institutional control, and vice versa. As explained below.
however, these two provisions do set forth distinct requirements. Second.
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these are ongoing obligations and, therefore, EPA believes the statute re-
quires bona fide prospective purchasers, contiguous property owners, and
innocent landowners to comply with land use restrictions and to implement
institutional controls even if the restrictions or institutional controls were
not in place at the time the person purchased the property.
Institutional controls are administrative and legal controls that minimize the
potential for human exposure to contamination and protect the integrity of
remedies by limiting land or resource use, providing information to modify
behavior, or both.6 For example, an institutional control might prohibit the
drilling of a drinking water well in a contaminated aquifer or disturbing
contaminated soils. EPA typically uses institutional controls whenever
contamination precludes unlimited use and unrestricted exposure at the
property. Institutional controls are often needed both before and after
completion of the remedial action. Also, institutional controls may need to
remain in place for an indefinite duration and, therefore, generally need to
survive changes in property ownership (i.e., run with the land) to be legally
and practically effective.
Generally, EPAplaces institutional controls into four categories:
(1) governmental controls (e.g., zoning);
(2) proprietary controls (e.g., covenants, easements);
(3) enforcement documents (e.g., orders, consent decrees); and
(4) informational devices (e.g., land record/deed notices).
Institutional controls often require a property owner to take steps to imple-
ment the controls, such as conveying a property interest (e.g., an easement
or restrictive covenant) to another party such as a governmental entity.
thus providing that party with the right to enforce a land use restriction;
applying for a zoning change; or recording a notice in the land records.
Because institutional controls are tools used to limit exposure to contamina-
tion or protect a remedy by limiting land use, they are often used to imple-
ment or establish land use restrictions relied on in connection with the
6 For additional information on institutional controls, see "Institutional Controls:
A Site Manager's Guide to Identifying, Evaluating, and Selecting Institutional
Controls at Superfund and RCRA Corrective Action Cleanups," September 2000.
(OSWER Directive 9355.0-74FS-P).
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response action. However, the Brownfields Amendments require compli-
ance with land use restrictions relied on in connection with the response
action, even if those restrictions have not been properly implemented through
the use of an enforceable institutional control. Generally, a land use restric-
tion may be considered "relied on" when the restriction is identified as a
component of the remedy. Land use restrictions relied on in connection
with a response action may be documented in several places depending on
the program under which the response action was conducted, including: a
risk assessment; a remedy decision document; a remedy design document;
a permit, order, or consent decree; under some state response programs, a
statute (e.g., no groundwater wells when relying on natural attenuation); or.
in other documents developed in conjunction with a response action.
An institutional control may not serve the purpose of implementing a land
use restriction for a variety of reasons, including: (1) the institutional con-
trol is never, or has yet to be, implemented; (2) the property owner or other
persons using the property impede the effectiveness of the institutional
controls in some way and the party responsible for enforcement of the
institutional controls neglects to take sufficient measures to bring those
persons into compliance; or (3) a court finds the controls to be unenforce-
able. For example, a chosen remedy might rely on an ordinance that pre-
vents groundwater from being used as drinking water. If the local govern-
ment failed to enact the ordinance, later changed the ordinance to allow for
drinking water use, or failed to enforce the ordinance, a landowner is still
required to comply with the groundwater use restriction identified as part of
the remedy to maintain its landowner liability protection. Unless authorized
by the regulatory agency responsible for overseeing the remedy, if the land-
owner fails to comply with a land use restriction relied on in connection with
a response action, the owner will forfeit the liability protection and EPA may
use its CERCLA authorities to order the owner to remedy the violation, or
EPA may remedy the violation itself and seek cost recovery from the
noncompliant landowner.
In order to meet the statutory criteria of a bona fide prospective purchaser.
contiguous property owner, or innocent landowner, a party may not impede
the effectiveness or integrity of any institutional control employed in con-
nection with a response action. See CERCLA §§ 101(40)(F)(ii),
107(q)(l)(A)(v)(II), 101(35)(A)(iii). Impeding the effectiveness orintegrity
of an institutional control does not require a physical disturbance or disrup-
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tion of the land. A landowner could jeopardize the reliability of an institu-
tional control through actions short of violating restrictions on land use. In
fact, not all institutional controls actually restrict the use of land. For ex-
ample, EPA and State programs often use notices to convey information
regarding contamination on site rather than actually restricting the use. To
do this, EPA or a State may require a notice to be placed in the land records.
If a landowner removed the notice, the removal would impede the effective-
ness of the institutional control. A similar requirement is for a landowner to
give notice of any institutional controls on the property to a purchaser of
the property. Failure to give this notice may impede the effectiveness of the
control. Another example of impeding the effectiveness of an institutional
control would be if a landowner applies for a zoning change or variance
when the current designated use of the property was intended to act as an
institutional control. Finally, EPAmight also consider a landowner's refusal
to assist in the implementation of an institutional control employed in con-
nection with the response action, such as not recording a deed notice or not
agreeing to an easement or covenant, to constitute a violation of the re-
quirement not to impede the effectiveness or integrity of an institutional
control.7
An owner may seek changes to land use restrictions and institutional con-
trols relied on in connection with a response action by following proce-
dures required by the regulatory agency responsible for overseeing the
original response action. Certain restrictions and institutional controls may
not need to remain in place in perpetuity. For example, changed site condi-
tions, such as natural attenuation or additional cleanup, may alleviate the
need for restrictions or institutional controls. If an owner believes changed
site conditions warrant a change in land or resource use or is interested in
performing additional response actions that would eliminate the need for
particular restrictions and controls, the owner should review and follow the
appropriate regulatory agency procedures prior to undertaking any action
that may violate the requirements of this provision.
2. Reasonable Steps
a. Overview
Congress, in enacting the landowner liability protections, included the con-
dition that bona fide prospective purchasers, contiguous property owners.
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and innocent landowners take "reasonable steps" with respect to hazard-
ous substance releases to do all of the following:
Stop continuing releases.
Prevent threatened future releases, and
Prevent or limit human, environmental, or natural resource
exposure to earlier hazardous substance releases.
CERCLA§§ 101(40)(D), 107(q)(l)(A)(iii), 101(35)(B)(i)(II).8 Congress included
this condition as an incentive for certain owners of contaminated properties
to avoid CERCL A liability by, among other things, acting responsibly where
hazardous substances are present on their property.
In adding this new requirement, Congress adopted an approach that is
consonant with traditional common law principles and the existing CERCL A
"due care" requirement.9
By making the landowner liability protections subject to the obligation to
take "reasonable steps," EPA believes Congress intended to balance the
desire to protect certain landowners from CERCLA liability with the need to
ensure the protection of human health and the environment. In requiring
reasonable steps from parties qualifying for landowner liability protections.
EPA believes Congress did not intend to create, as a general matter, the
same types of response obligations that exist for a CERCLA liable party
(e.g., removal of contaminated soil, extraction and treatment of contami-
nated groundwater).10 Indeed, the contiguous property owner provision's
legislative history states that absent "exceptional circumstances ..., these
persons are not expected to conduct ground water investigations or install
remediation systems, or undertake other response actions that would be
more properly paid for by the responsible parties who caused the contami-
nation." S. Rep. No. 107-2, at 11 (2001). In addition, the Brownfields Amend-
ments provide that contiguous property owners are generally not required
to conduct groundwater investigations or to install ground water remediation
systems. CERCLA § 107(q)(l)(D).u Nevertheless, it seems clear that Con-
gress also did not intend to allow a landowner to ignore the potential dan-
gers associated with hazardous substances on its property.
7 This may also constitute a violation of the ongoing obligation to provide full
cooperation, assistance, and access. CERCLA §§ 101(40XE), 107(q)(lXA)(iv),
101(35XA).
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Although the reasonable steps legal standard is the same for the three
landowner provisions, the obligations may differ to some extent because of
other differences among the three statutory provisions. For example, as
noted earlier, one of the conditions is that a person claiming the status of a
bona fide prospective purchaser, contiguous property owner, or innocent
landowner must have "carried out all appropriate inquiries" into the previ-
ous ownership and uses of the facility in accordance with generally ac-
cepted good commercial and customary standards and practices. CERCLA
§§ 101(40)(B), 107(q)(l)(A)(viii), 101(35)(B). However, for a contiguous prop-
erty owner or innocent landowner, knowledge of contamination defeats
eligibility for the liability protection. Abona fide prospective purchaser may
purchase with knowledge of the contamination and still be eligible for the
liability protection. Thus, only the bona fide prospective purchaser could
purchase a contaminated property that is, for example, on CERCLA's Na-
tional Priorities List12 or is undergoing active cleanup under an EPA or State
cleanup program, and still maintain his liability protection.
The pre-purchase "appropriate inquiry" by the bona fide prospective pur-
chaser will most likely inform the bona fide prospective purchaser as to the
nature and extent of contamination on the property and what might be
8 CERCLA § 101(40)(D), the bona fide prospective purchaser reasonable steps
provision, provides: "[t]he person exercises appropriate care with respect to haz-
ardous substances found at the facility by taking reasonable steps to — (i) stop any
continuing release; (ii) prevent any threatened future release; and (iii) prevent or
limit human, environmental, or natural resource exposure to any previously released
hazardous substance."
CERCLA § 107(q)(l)(A), the contiguous property owner reasonable steps provi-
sion, provides: "the person takes reasonable steps to — (I) stop any continuing
release; (II) prevent any threatened future release; and (III) prevent or limit human.
environmental, or natural resource exposure to any hazardous substance released on
or from property owned by that person."
CERCLA § 101(35)(B)(II), the innocent landowner reasonable steps provision.
provides: "the defendant took reasonable steps to — (aa) stop any continuing
release; (bb) prevent any threatened future release; and (cc) prevent or limit any
human, environmental, or natural resource exposure to any previously released
hazardous substance."
9 See innocent landowner pro vision, CERCLA § 107(b)(3)(a).
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considered reasonable steps regarding the contamination ~ how to stop
continuing releases, prevent threatened future releases, and prevent or limit
human, environmental, and natural resource exposures. Knowledge of con-
tamination and the opportunity to plan prior to purchase should be factors
in evaluating what are reasonable steps, and could result in greater reason-
able steps obligations for a bona fide prospective purchaser.n Because the
pre-purchase "appropriate inquiry" performed by a contiguous property
owner or innocent landowner must result in no knowledge of the contami-
nation for the landowner liability protection to apply, the context for evalu-
ating reasonable steps for such parties is different. That is, reasonable
steps in the context of a purchase by a bona fide prospective purchaser may
differ from reasonable steps for the other protected landowner categories
(who did not have knowledge or an opportunity to plan prior to purchase).
Once a contiguous property owner or innocent landowner learns that con-
tamination exists on his property, then he must take reasonable steps con-
sidering the available information about the property contamination.
The required reasonable steps relate only to responding to contamination
for which the bona fide prospective purchaser, contiguous property owner.
or innocent landowner is not responsible. Activities on the property subse-
quent to purchase that result in new contamination can give rise to full
CERCL A liability. That is, more than reasonable steps will likely be required
from the landowner if there is new hazardous substance contamination on
10 There could be unusual circumstances where the reasonable steps required of a
bona fide prospective purchaser, contiguous property owner, or innocent land-
owner would be akin to the obligations of a potentially responsible party (e.g., the
only remaining response action is institutional controls or monitoring, the benefit of
a the response action will inure primarily to the landowner, or the landowner is the
only person in a position to prevent or limit an immediate hazard.) This may be
more likely to arise in the context of a bona fide prospective purchaser as the
purchaser may buy the property with knowledge of the contamination.
11 CERCLA§ 107(q)(l)(D)provides: GROUND WATER-With respect to a hazardous
substance fromone or more sources that are not on the property of a person that is
a contiguous property owner that enters ground water beneath the property of athe
person solely as a result of subsurface migration in an aquifer, subparagraph (A)(iii)
shall not require the person to conduct ground water investigations or to install
ground water remediation systems, except in accordance with the policy of the
Environmental Protection Agency concerning owners of property containing con-
taminated aquifers, dated May 24,1995.
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the landowner's property for which the landowner is liable. See, e.g.. CERCLA
§ 101(40)(A) (requiring a bona fide prospective purchaser to show "[a]ll
disposal of hazardous substances at the facility occurred before the person
acquired the facility").
As part of the third party defense that pre-dates the Brownfields Amend-
ments and continues to be a distinct requirement for innocent landowners.
CERCLA requires the exercise of "due care with respect to the hazardous
substance concerned, taking into consideration the characteristics of such
hazardous substance, in light of all the relevant facts and circumstances."
CERCLA § 107(b)(3)(a). The due care language differs from the Brownfields
Amendments' new reasonable steps language. However, the existing case
law on due care provides a reference point for evaluating the reasonable
steps requirement. When courts have examined the due care requirement in
the context of the pre-existing innocent landowner defense, they have gen-
erally concluded that a landowner should take some positive or affirmative
step(s) when confronted with hazardous substances on its property. Be-
cause the due care cases cited in Attachment B (see Section III.B.2.b "Ques-
tions and Answers," below) interpret the due care statutory language and
not the reasonable steps statutory language, they are provided as a refer-
ence point for the reasonable steps analysis, but are not intended to define
reasonable steps.
The reasonable steps determination will be a site-specific, fact-based in-
quiry. That inquiry should take into account the different elements of the
landowner liability protections and should reflect the balance that Con-
gress sought between protecting certain landowners from CERCLA liability
and assuring continued protection of human health and the environment.
Although each site will have its own unique aspects involving individual
site analysis, Attachment B provides some questions and answers intended
as general guidance on the question of what actions may constitute reason-
able steps.
12The National Priorities List is "the list compiled by EPA pursuant to CERCLA §
105, of uncontrolled hazardous substance releases in the United States that are
priorities for long-term remedial evaluation and response." 40 C.F.R. § 300.5 (2001).
13As noted earlier, section 107(r)(2) provides EPA with a windfall lien on the prop-
erty.
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b. Site-Specific Comfort/Status Letters Addressing Reason-
able Steps
Consistent with its "Policy on the Issuance of Comfort/Status Letters,"
("1997 Comfort/Status Letter Policy"), 62 Fed. Reg. 4,624 (1997), EPAmay, in
its discretion, provide a comfort/status letter addressing reasonable steps
at a specific site, upon request. EPA anticipates that such letters will be
limited to sites with significant federal involvement such that the Agency
has sufficient information to form a basis for suggesting reasonable steps
(e.g., the site is on the National Priorities List or EPA has conducted or is
conducting a removal action on the site). In addition, as the 1997 Comfort/
Status Letter Policy provides," [i]t is not EPA's intent to become involved in
typical real estate transactions. Rather, EPA intends to limit the use of...
comfort to where it may facilitate the cleanup and redevelopment of
brownfields, where there is the realistic perception or probability of incur-
ring Superfund liability, and where there is no other mechanism available to
adequately address the party's concerns." Id. In its discretion, a Region
may conclude in a given case that it is not necessary to opine about reason-
able steps because it is clear that the landowner does not or will not meet
other elements of the relevant landowner liability protection. A sample
reasonable steps comfort/status letter is attached to this memorandum (see
Attachment C).
The 1997 Comfort/Status Letter Policy recognizes that, at some sites, the
state has the lead for day-to-day activities and oversight of a response
action, and the Policy includes a "Sample State Action Letter." For reason-
able steps inquiries at such sites, Regions should handle responses consis-
tent with the existing 1997 Comfort/Status Letter Policy. In addition, where
appropriate, if EPA has had the lead at a site with respect to response ac-
tions (e.g.,EPAhasconductedaremovalactionatthe site), but the state will
be taking over the lead in the near future, EPA should coordinate with the
state prior to issuing a comfort/status letter suggesting reasonable steps at
the site.
1. Cooperation, Assistance, and Access
The Brownfields Amendments require that bona fide prospective purchas-
ers, contiguous property owners, and innocent landowners provide full
cooperation, assistance, and access to persons who are authorized to con-
duct response actions or natural resource restoration at the vessel or facil-
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ity from which there has been a release or threatened release, including the
cooperation and access necessary for the installation, integrity, operation.
and maintenance of any complete or partial response action or natural re-
source restoration at the vessel or facility. CERCLA §§ 101(40)(E),
v), 101(35)(A).
2 Compliance with Information Requests and Administrative Sub-
poenas
The Brownfields Amendments require bona fide prospective purchasers
and contiguous property owners to be in compliance with, or comply with.
any request for information or administrative subpoena issued by the Presi-
dent under CERCLA. CERCLA§§ 101(40)(G), 107(q)(l)(A)(vi). Inparticular,
EPA expects timely, accurate, and complete responses from all recipients of
section 104(e) information requests. As an exercise of its enforcement dis-
cretion, EPA may consider a person who has made an inconsequential error
in responding (e.g., the person sent the response to the wrong EPA address
and missed the response deadline by a day), a bona fide prospective pur-
chaser or contiguous property owner, as long as the landowner also meets
the other conditions of the applicable landowner liability protection.
3. Providing Legally Required Notices
The Brownfields Amendments subject bona fide prospective purchasers
and contiguous property owners to the same "notice" requirements. Both
provisions mandate, in pertinent part, that "[t]he person provides all legally
required notices with respect to the discovery or release of any hazardous
substances at the facility." CERCLA§§ 101(40)(C), 107(q)(l)(A)(vii). EPA
believes that Congress' intent in including this as an ongoing obligation
was to ensure that EPA and other appropriate entities are made aware of
hazardous substance releases in a timely manner.
"Legally required notices" may include those required under federal, state.
and local laws. Examples of federal notices that may be required include, but
are not limited to, those under: CERCLA § 103 (notification requirements
regarding released substances); EPCRA § 304 ("emergency notification");
and RCRA § 9002 (notification provisions for underground storage tanks).
The bona fide prospective purchaser and contiguous property owner have
the burden of ascertaining what notices are legally required in a given in-
stance and of complying with those notice requirements. Regions may
require these landowners to self-certify that they have provided (in the case
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of contiguous property owners), or will provide within a certain number of
days of purchasing the property (in the case of bona fide prospective pur-
chasers), all legally required notices. Such serf-certifications may be in the
form of a letter signed by the landowner as long as the letter is sufficient to
satisfy EPA that applicable notice requirements have been met. Like many
of the other common elements discussed in this memorandum, providing
legally required notices is an ongoing obligation of any landowner desiring
to maintain its status as a bona fide prospective purchaser or contiguous
property owner.
IV CONCLUSION
Evaluating whether a landowner has met the criteria of a particular land-
owner provision will require careful, fact-specific analysis by the regions as
part of their exercise of enforcement discretion. This memorandum is in-
tended to provide EPA personnel with some general guidance on the com-
mon elements of the landowner liability protections. As EPA implements
the Brownfields Amendments, it will be critical for the regions to share site-
specific experiences and information pertaining to the common elements
amongst each other and with the Office of Site Remediation Enforcement, in
order to ensure national consistency in the exercise of the Agency's en-
forcement discretion. EPA anticipates that its Landowner Liability Protec-
tion Subgroup, which is comprised of members from various headquarters
offices, the Offices of Regional Counsel, the Office of General Counsel, and
the Department of Justice, will remain intact for the foreseeable future and
will be available to serve as a clearinghouse for information for the regions
on the common elements.
Questions and comments regarding this memorandum or site-specific in-
quiries should be directed to Gate Tierney, in OSRE's Regional Support
Division(202-5644254.Tierney.Cate(@EPA.gov). or Greg Madden, in OSRE's
Policy & Program Evaluation Division (202-564-4229,
Madden. Gregory (@EPA.gov).
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V DISCLAIMER
This memorandum is intended solely for the guidance of employees
of EPA and the Department of Justice and it creates no substantive
rights for any persons. It is not a regulation and does not impose
legal obligations. EPA will apply the guidance only to the extent
appropriate based on the facts.
Attachments
cc: Jewell Harper (OSRE)
Paul Connor (OSRE)
Sandra Connors (OSRE)
Thomas Dunne (OSWER)
Benjamin Fisherow (DOJ)
Linda Garczynski (OSWER)
Bruce Gelber(DOJ)
Steve Luftig (OSWER)
EarlSalo(OGC)
EPABrownfields Landowner Liability Protection Subgroup
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Attachment A
Chart Summarizing Applicability of "Common Elements" to
Bona Fide Prospective Purchasers, Contiguous Property
Owners, and Section 101(35)(A)(i) Innocent Landowners
Common Element
among the
Brownfields Amend-
ments Landowner
Provisions
All Appropriate Inquiry
No affiliation demonstration
Compliance with land use
restrictions and institutional
controls
Taking reasonable steps
Cooperation, assistance,
access
Compliance with information
requests and administrative
subpoenas
Providing legally required
notices
Bona Fide
Prospective
Purchaser
V
V
V
V
V
V
V
Contiguous
Property
Owner
V
V
V
V
V
V
V
Section 101
(35)(A)(i)
Innocent
Landowner
V
*
V
V
V
* *
* * *
* Although the innocent landowner provision does not contain this "affiliation"
language, in order to meet the statutory criteria of the innocent landowner liability
protection, a person must establish by a preponderance of the evidence that the act
or omission that caused the release or threat of release of hazardous substances and
the resulting damages were caused by a third party with whom the person does not
have an employment, agency, or contractual relationship. CERCLA § 107(b)(3).
Contractual relationship is defined in section 101(35)(A).
* * Compliance with information requests and administrative subpoenas is not
specified as a statutory criterion for achieving and maintaining the section
101(35)(A)(i) innocent landowner liability protection. However, CERCLA re-
quires compliance with administrative subpoenas from all persons, and timely,
accurate, and complete responses from all recipients of EPA information requests.
* * * Provision of legally required notices is not specified as a statutory criterion
for achieving and maintaining the section 101 (3 5)(A)(i) innocent landowner liability
protection. These landowners may, however, have notice obligations under federal,
state and local laws.
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Attachment B
Resonable Steps
Questions and Answers
The "reasonable steps" required of abona fide prospective purchaser, con-
tiguous property owner, or section 101(35)(A)(i) innocent landowner under
CERCLA §§ 101(40)(D), 107(q)(l)(A)(iii), and 101(35)(B)(i)(II), will be a site-
specific, fact-based inquiry. Although each site will have its own unique
aspects involving individual site analysis, below are some questions and
answers intended to provide general guidance on the question of what
actions may constitute reasonable steps. The answers provide a specific
response to the question posed, without identifying additional actions that
might be necessary as reasonable steps or actions that may be required
under the other statutory conditions for each landowner provision (e.g..
providing cooperation and access). In addition, the answers do not ad-
dress actions that may be required under other federal statutes (e.g., the
Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the
Clean Water Act, 33 U.S.C. § 1251, etseq.; and the Toxic Substances Control
Act, 15 U.S.C. § 2601, etseq.), and do not address landowner obligations
under state statutory or common law.1
Notification
Ql: If a person conducts "all appropriate inquiry" with respect to a prop-
erty where EPA has conducted a removal action, discovers hazardous sub-
stance contamination on the property that is unknown to EPA, and then
purchases the property, is notification to EPA or the state about the con-
tamination a reasonable step?
Al: Yes. First, bona fide prospective purchasers may have an obligation to
provide notice of the discovery or release of a hazardous substance under
the legally required notice provision, CERCLA § 101(40)(C). Second, evenif
not squarely required by the notice conditions, providing notice of the
contamination to appropriate governmental authorities would be a reason-
able step in order to prevent a "threatened future release" and "prevent or
limit... exposure." Congress specifically identified "notifying appropriate
1 The Brownfields Amendments did not alter CERCLA § 114(a), which provides:
"[njothing in this chapter shall be construed or interpreted as preempting any Sate
from imposing any additional liability or requirements with respect to the release
of hazardous substances within such State."
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Federal, state, and local officials" as atypical reasonable step. S. Rep. No. 107-
2, at 11 (2001); see also, Bob's Beverage Inc. v. Acme. Inc.. 169 F. Supp. 2d
695, 716 (N.D. Ohio 1999) (failure to timely notify EPAand Ohio EPA of
groundwater contamination was factor in conclusion that party failed to
exercise due care), aff'd, 264 F. 3d 692 (6th Cir. 2001). It should be noted that
the bona fide prospective purchaser provision is the only one of the three
landowner provisions where a person can purchase property with knowl-
edge that it is contaminated and still qualify for the landowner liability
protection.
Site Restrictions
Q2: Where a property owner discovers unauthorized dumping of hazard-
ous substances on a portion of her property, are site access restrictions
reasonable steps?
A2: Site restrictions are likely appropriate as a first step, once the dumping
is known to the owner. Reasonable steps include preventing or limiting
"human, environmental, or natural resource exposure" to hazardous sub-
stances. CERCLA§§ 101(40)(D)(iii), 107(q)(l)(A)(iii)(ni), 101(35)(B)(i)(II)(cc).
The legislative history for the contiguous property owner provision spe-
cifically notes that "erecting and maintaining signs or fences to prevent
public exposure" may be typical reasonable steps. S. Rep. No. 107-2, at 11
(2001); see also, Idylwoods Assoc. v. Mader Capital. Inc.. 915 F. Supp. 1290,
1301 (W.D.N.Y. 1996) (failure to restrict access by erecting signs or hiring
security personnel was factor in evaluating due care), aff'd on reh 'g, 956 F.
Supp. 410,419-20 (W.D.N.Y 1997); New Yorkv. Delmonte. No. 98-CV-0649E,
2000 WL 432838, *4 (W.D.N.Y. Mar. 31,2000) (failure to limit access despite
knowledge of trespassers was not due care).
Containing Releases or Threatened Releases
Q3: If a new property owner discovers some deteriorating 55 gallon drums
containing unknown material among empty drums in an old warehouse on
her property, would segregation of the drums and identification of the mate-
rial in the drums constitute reasonable steps?
A3: Yes, segregation and identification of potential hazards would likely be
appropriate first steps. Reasonable steps must be taken to "prevent any
threatened future release." CERCLA§§ 101(40)(D)(ii), 107(q)(l)(A)(iii)(II),
101(35)(B)(i)(II)(bb). To the extent the drums have the potential to leak,
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segregation and containment (e.g., dram overpack) would prevent mishan-
dling and releases to the environment. For storage and handling purposes.
an identification of the potential hazards from the material will likely be
necessary. Additional identification steps would likely be necessary for
subsequent disposal or resale if the material had commercial value.
Q4: If a property owner discovers that the containment system for an on-
site waste pile has been breached, do reasonable steps include repairing the
breach?
A4: One of the reasonable steps obligations is to "stop any continuing
release." CERCLA§§ 101(40)(D)(i), 107(q)(l)(A)(iii)(I), 101(35)(B)(i)(II)(aa).
In general, the property owner should take actions to prevent contaminant
migration where there is a breach from an existing containment system.
Both Congress and the courts have identified maintenance of hazardous
substance migration controls as relevant property owner obligations. For
example, in discussing contiguous property owners' obligations for migrat-
ing groundwater plumes, Congress identified "maintaining any existing bar-
rier or other elements of a response action on their property that address the
contaminated plume" as a typical reasonable step. S. Rep. No. 107-2, at 11
(2001): see also. Franklin County Convention Facilities Auth. v. American
Premier Underwriters. Inc.. 240F3d534,548 (6th Cir. 2001) (failure to promptly
erect barrier that allowed migration was not due care); United States v.
DiBiase Salem Realty Trust No. Civ. A. 91-11028-MA, 1993 WL 729662, *7
(D. Mass. Nov. 19,1993) (failure to reinforce waste pitberms was factor in
concluding no due care), aff'd, 45 F.3d 541, 545 (1st Cir. 1995). In many
instances, the current property owner will have responsibility for mainte-
nance of the containment system. If the property owner has responsibility
for maintenance of the system as part of her property purchase, then she
should repair the breach. In other instances, someone other than the cur-
rent landowner may have assumed that responsibility (e.g., a prior owner or
other liable parties that signed a consent decree with EPA and/or a State). If
someone other than the property owner has responsibility for maintenance
of the containment system pursuant to a contract or other agreement, then
the question is more complicated. At a minimum, the current owner should
give notice to the person responsible for the containment system and to the
government. Moreover, additional actions to prevent contaminant migra-
tion would likely be appropriate.
A22
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Q5: If abona fide prospective purchaser buys property at a Superfund site
where part of the approved remedy is an asphalt parking lot cap, but the
entity orentities responsible for implementing the remedy (e.g., PRPs who
signed a consent decree) are unable to repair the deteriorating cap (e.g., the
PRPs are now defunct), should the bona fide prospective purchaser repair
the deteriorating asphalt parking lot cap as reasonable steps?
A5: Taking "reasonable steps" includes steps to: "prevent or limit any
human, environmental, or natural resource exposure to any previously re-
leased hazardous substances." CERCLA §§ 101(40)(D)(iii),
107(q)(l)(A)(iii)(III), 101(35)(B)(i)(II)(cc). In this instance, the current land-
owner may be in the best position to identify and quickly take steps to repair
the asphalt cap and prevent additional exposures.
Remediation
Q6: If a property is underlain by contaminated groundwater emanating
from a source on a contiguous or adjacent property, do reasonable steps
include remediating the groundwater?
A6: Generally not. Absent exceptional circumstances, EPA will not look to
a landowner whose property is not a source of a release to conduct ground-
water investigations or install groundwater remediation systems. Since
1995, EPAs policy has been that, in the absence of exceptional circum-
stances, such a property owner did not have "to take any affirmative steps
to investigate or prevent the activities that gave rise to the original release"
in order to satisfy the innocent landowner due care requirement. See May
24,1995 "Policy Toward Owners of Property Containing Contaminated Aqui-
fers." ("1995 Contaminated Aquifers Policy"). In the Brownfields Amend-
ments, Congress explicitly identified this policy in noting that reasonable
steps for a contiguous property owner "shall not require the person to
conduct groundwater investigations or to install groundwater remediation
systems," except in accordance with that policy. SeeCERCLA§ 107(q)(l)(D).
The policy does not apply "where the property contains a groundwater
well, the existence or operation of which may affect the migration of con-
tamination in the affected area." 1995ContaminatedAquifersPolicy,at5. In
such instances, a site-specific analysis should be used in order to determine
reasonable steps. In some instances, reasonable steps may simply mean
operation of the groundwater well consistent with the selected remedy. In
other instances, more could be required.
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Q7: If a protected landowner discovers a previously unknown release of a
hazardous substance from a source on her property, must she remediate the
release?
A7: Provided the landowner is not otherwise liable for the release from the
source, she should take some affirmative steps to "stop the continuing
release," but EPA would not, absent unusual circumstances, look to her for
performance of complete remedial measures. However, notice to appropri-
ate governmental officials and containment or other measures to mitigate
the release would probably be considered appropriate. Compare Lincoln
Properties. Ltd, v. Higgins. 823 F. Supp. 1528,1543-44 (E.D. Calif. 1992)
(sealing sewer lines and wells and subsequently destroying wells to protect
against releases helped establish party exercised due care); Redwing Carri-
ers. Inc. v. SaralandApartments. 94 F.3d 1489,1508 (llthCir. 1996) (timely
development of maintenance plan to remove tar seeps was factor in show-
ing due care was exercised); New York v. Lashins Arcade Co.. 91 F.3d 353
(2nd Cir. 1996) (instructing tenants not to discharge hazardous substances
into waste and septic systems, making instructions part of tenancy require-
ments, and inspecting to assure compliance with this obligation, helped
party establish due care): with Idylwoods Assoc. v. Mader Capital. Inc.. 956
F. Supp. 410,419-20 (W.D.N.Y. 1997) (property owner's decision to do noth-
ing resulting in spread of contamination to neighboring creek was not due
care): Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co.. 14 F3d 321.325
(7th Cir. 1994) (party that "made no attempt to remove those substances or
to take any other positive steps to reduce the threat posed" did not exercise
due care). As noted earlier, if the release is the result of a disposal after the
property owner's purchase, then she may be required to undertake full
remedial measures as a CERCLA liable party. Also, if the source of the
contamination is on the property, then the property owner will not qualify
as a contiguous property owner but may still qualify as an innocent land-
owner or a bona fide prospective purchaser.
Site Investigation
Q8: If a landowner discovers contamination on her property, does the
obligation to take reasonable steps require her to investigate the extent of
the contamination?
A24
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A8: Generally, where the property owner is the first to discover the con-
tamination, she should take certain basic actions to assess the extent of
contamination. Absent such an assessment, it will be very difficult to deter-
mine what reasonable steps will stop a continuing release, prevent a threat-
ened future release, or prevent or limit exposure. While a full environmental
investigation may not be required, doing nothing in the face of a known or
suspected environmental hazard would likely be insufficient. See, e.g..
United States v. DiBiase Salem Realty Trust. 1993 WL 729662, *7 (failure to
investigate after becoming aware of dangerous sludge pits was factor in
concluding party did not exercise due care), aff'd, 45 F.3d 541,545 (1st Cir.
1995); United States v. A&N Cleaners and Launderers. Inc.. 854 F. Supp. 229
(S.D.N.Y. 1994) (dictum) (failing to assess environmental threats after dis-
covery of disposal would be part of due care analysis). Where the govern-
ment is actively investigating the property, the need for investigation by
the landowner may be lessened, but the landowner should be careful not to
rely on the fact that the government has been notified of a hazard on her
property as a shield to potential liability where she fails to conduct any
investigation of a known hazard on her property. Compare New York v.
Lashins Arcade Co.. 91 F.3d 353,361 (2nd Cir. 1996) (no obligation to inves-
tigate where RI/FS already commissioned) with DiBiase Salem Realty Trust
1993 WL 729662, *7 (State Department of Environmental Quality knowledge
of hazard did not remove owner's obligation to make some assessment of
site conditions), aff'd, 45 F3d 541,545 (1st Cir. 1995).
Performance of EPAApproved Remedy
Q9: If a new purchaser agrees to assume the obligations of a prior owner
PRP, as such obligations are defined in an order or consent decree issued or
entered into by the prior owner and EPA, will compliance with those obliga-
tions satisfy the reasonable steps requirement?
A9: Yes, in most cases compliance with the obligations of an EPA order or
consent decree will satisfy the reasonable steps requirement so long as the
order or consent decree comprehensively addresses the obligations of the
prior owner through completion of the remedy. It should be noted that not
all orders or consent decrees identify obligations through completion of the
remedy and some have open-ended cleanup obligations.
Ar25
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Attachment C
Sample Federal Superfund Interest
Resonslbe Steps Letter
The sample comfort/status letter below may be used in the exercise of en-
forcement discretion where EPA has sufficient information regarding the
site to have assessed the hazardous substance contamination and has
enough information about the property to make suggestions as to steps
necessary to satisfy the "reasonable steps" requirement. In addition, like
any comfort/status letter, the letters should be provided in accordance with
EPA's "Comfort/Status Letter Policy." That is, they are not necessary or
appropriate for purely private real estate transactions. Such letters may be
issued when: (1) there is a realistic perception or probability of incurring
Superfund liability, (2) such comfort will facilitate the cleanup and redevel-
opment of a brownfield property, (3) there is no other mechanism to ad-
equately address the party's concerns, and (4) EPA has sufficient informa-
tion about the property to provide a basis for suggesting reasonable steps.
[Insert Addressee]
Re: [Insert Name or Description of Property]
Dear [Insert name of requestor]:
I am writing in response to your letter dated [insert date] concerning the
property referenced above. As you know, the [insert name] property is
located within or near the [insert name of CERCLIS site.] EPA is currently
[insert description of action EPA is taking or plans to take and any con-
tamination problem.]
The [bonafide prospective purchaser, contiguous property owner, or inno-
cent landowner] provision states that a person meeting the criteria of [in-
sert section] is protected from CERCLA liability. [For bona fide prospective
purchaser only, it may be appropriate to insert following language: To the
extent EPA's response action increases the fair market value of the prop-
erty, EPA may have a windfall lien on the property. The windfall lien is
limited to the increase in fair market value attributable to EPA's response
action, capped by EPA's unrecovered response costs.] (I am enclosing a
copy of the relevant statutory provisions foryour reference.) To qualify as
a [bona fide prospective purchaser, contiguous property owner, or section
101(35)(A)(i) innocent landowner], a person must (among other require-
ments) take "reasonable steps" with respect to stopping continuing re-
leases, preventing threatened future releases, and preventing or limiting
Ar26
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human, environmental, or natural resources exposure to earlier releases.
You have asked what actions you must take, as the [owner or prospective
owner] of the property, to satisfy the "reasonable steps" criterion.
As noted above, EPA has conducted a [insert most recent/relevant action
to "reasonable steps" inquiry taken by EPA] at [insert property name] and
has identified a number of environmental concerns. Based on the informa-
tion EPA has evaluated to date, EPA believes that, for an owner of the
property, the following would be appropriate reasonable steps with respect
to the hazardous substance contamination found at the property:
[insert paragraphs outlining reasonable steps with respect to each environ-
mental concern]
This letter does not provide a release from CERCLA liability, but only pro-
vides information with respect to reasonable steps based on the informa-
tion EPA has available to it. This letter is based on the nature and extent of
contamination known to EPA at this time. If additional information regarding
the nature and extent of hazardous substance contamination at [insert prop-
erty name] becomes available, additional actions may be necessary to sat-
isfy the reasonable steps criterion. In particular, if new areas of contamina-
tion are identified, you should ensure that reasonable steps are undertaken.
As the property owner, you should ensure that you are aware of the condi-
tion of your property so that you are able to take reasonable steps with
respect to any hazardous substance contamination at or on the property.
Please note that the [bonafide prospective purchaser, contiguous property
owner, or innocent landowner] provision has a number of conditions in
addition to those requiring the property owner to take reasonable steps.
Taking reasonable steps and many of the other conditions are continuing
obligations of the [bonafide prospective purchaser, contiguous property
owner, or section 101(35)(A)(i) innocent landowner]. You will need to as-
sess whether you satisfy each of the statutory conditions for the [bona fide
prospective purchaser, contiguous property owner, or innocent landowner]
provision and continue to meet the applicable conditions.
EPA hopes this information is useful to you. If you have any questions, or
wish to discuss this letter, please feel free to contact [insert EPA contact and
address].
Sincerely.
[insert name of EPA contact]
Ar27
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Appendix B
Brownfields Enforcement
and Land Revitalization Policy and
Guidance Documents
The following documents, in alphabetical order, are available on the
cleanup enforcement Web site and contained within the Superfund.
Brownfields, and RCRA Cleanup policy and guidance document
databases, all accessible from the Information Resources section of
the cleanup enforcement Web site at http://www.epa.gov/compliance/
resources/policies/cleanup/index.html.
Bona Fide Prospective Purchases and the New Amendments to
CERCLA
May 31,2002
Describes when EPA will consider providing a bona fide prospective
purchaser (BFPP) with a liability limitation despite having knowl-
edge of contamination pursuant to changes made to the Superfund
statute by the 2002 Brownfield Amendments. The Amendments list
certain requirements that must be met to achieve BFPP status, dis-
pense with the prior need for Prospective Purchaser Agreements
(PPA) (except in limited circumstances), and provide for EPA's re-
covery of any windfall that a purchaser may receive.
To access online: http://www.epa.gov/compliance/resources/
policies/cleanup/superfund/bonf-pp-cercla-mem.pdf
Brownfields Sites and Supplemental Environmental Projects
(SEPs)
November 30,2006
Provides background information on the use of supplemental envi-
ronmental projects (SEPs), in addition to questions and answers on
the complementary role of SEPs atbrownfield sites. This document
supersedes the 1998 guidance document "Using Supplemental En-
vironmental Projects to Facilitate Brownfields Redevelopment."
To access online: http://www.epa.gov/compliance/resources/
publications/cleanup/brownfields/brownfield-seps.pdf
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Comfort/Status Letters for RCRABrownfields Properties
February 5,2001
Addresses the use of comfort/status letters at Resource Conservation and
Recovery Act (RCRA) properties, where the letters may facilitate the cleanup
and reuse of brownfield sites, where there exists a real probability or percep-
tion that EPA may initiate a cleanup, or where there is no other adequate
mechanism to assuage a party's concerns. This document also includes
four sample letters.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/rcra/comfort-rcra-brwn-mem.pdf
"Common Elements" Guidance Reference Sheet
March 6,2003
Highlights the main points made inEPA's March 2003 "Common Elements"
guidance document concerning the conditional liability provided to bona
fide prospective purchasers, contiguous property owners, and innocent
landowners by the 2002 Brownfield Amendments. The document focuses
on the shared factors required to qualify for the above Superfund liability
protections.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/common-elem-ref.pdf
Contiguous Property Owner Guidance Reference Sheet
February 5,2004
The reference sheet summarizes the important points and requirements of
the January 13,2004 guidance document "Interim Enforcement Discretion
Guidance Regarding Contiguous Property Owners," which addresses li-
ability limitations.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/contig-prop-faq.pdf
B2
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Environmentally Responsible, Redevelopement & Reuse ("ER3")
Frequently Asked Questions and Answers
December 31,2005
Provides a list of frequently asked questions and answers regarding EPA's
Environmentally Responsible, Redevelopment and Reuse (ER3) Initiative.
This program seeks to encourage redevelopment in a sustainable way that
prevents future environmental hazards through incentives, assistance, and
education.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/er3-faqs-05.pdf
Final Policy Toward Owners of Property Containing
ContaminatedAquifers
May 24,1995
Details EPA's position concerning owners of property that contains an aqui-
fer that has become contaminated as a result of subsurface migration. In
certain circumstances, EPA will not take enforcement action against a land-
owner whose property has become contaminated through subsurface mi-
gration through no fault of their own, their agent, or their employee. In
addition, EPA may consider de minimis settlements which would protect the
landowner from contribution suits.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/contamin-aqui-rptpdf
Guidance for Preparing Superfund Ready for Reuse Determinations
February 12,2004
Provides guidance to EPA employees in preparing Ready for Reuse Deter-
minations (RfR) in order to encourage the reuse of Superfund sites by in-
forming the real estate market of the status of the site subject to the determi-
nation. RfR is an environmental status report that documents a technical
determination by EPA, in consultation with the States, Tribes, and local
governments, that all or a portion of a Superfund site can support specified
types of uses and remain protective of human health and the environment.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/rfr-deter-cmptpdf
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Guidance on Agreements with Prospective Purchasers of
Contaminated Property
May 24,1995
Provides guidance to prospective purchasers of contaminated Superfund
property, specifically concerning the expanded circumstances by which
purchasers can enter into covenants not to sue with EPA. This document
also provides a model agreement.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/prosper-cont-mem.pdf
Interim Enforcement Discretion Policy Concerning "Windfall Liens"
Under Section 107(r) of CERCLA
July 16,2003
Discusses EPA and the Department of Justice's (DOJ) interim policy imple-
mentation of the new CERCLA 107(r) windfall lien provision contained in
the 2002 Brownfields Amendments. This document lists the factors that
EPA will use to determine whether to file a lien, in addition to discussing
how EPA will settle the liens and the possibility of EPA issuing comfort
letters to or making agreements with bona fide prospective purchaser
(BFPPs).
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/interim-windfall-lien.pdf
Interim Enforcement Discretion Guidance Regarding Contiguous
Property Owners
January 13,2004
Addresses the addition of liability protection to contiguous property own-
ers to Superfund by the 2002 Brownfields Amendments. The document
discusses the criteria property owners need to meet, how the Amendments
apply to current and former owners, the relationship between the Amend-
ments and EPAs Residential Homeowner Policy and Contaminated Aqui-
fers Policy, and mechanisms that EPA may use to resolve landowner liability
concerns.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/contig-prop.pdf
B4
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Interim Guidance on the Municipal Solid Waste Exemption Under
CERCLA Section 107(p)
August 20,2003
Discusses the qualified liability exemption added to Superfund by the 2002
Brownfields Amendments and provided to certain residential, small busi-
ness and non-profit generators of municipal solid waste (MS W) at sites on
the National Priorities List (NPL). This document discusses the criteria to
qualify for this exemption, the provisions in the Amendments meant to deter
litigation against exempt parties, and the interaction between this exemption
and existing policies.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/supernind/interim-msw-exempt.pdf
Interim Guidance Regarding Criteria Landowners Must Meet in Order
to Quality for Bona Fide Prospective Purchaser, Contiguous Property
Owner, or Innocent Landowner Limitations on CERCLA Liability
("Common Elements")
March 6,2003
Provides general information regarding the common elements of the land-
owner liability protections contained in the 2002 Brownfields Amendments
to Superfund. These common elements include the requirements of "all
appropriate inquiry" (AAI), demonstrating no affiliation with a liable party.
and continuing obligations.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/common-elem-guide.pdf
Issuance of CERCLAModelAgreement and Orderon Consentfor
Removal Action by a Bona Fide Prospective Purchaser
November 27,2006
Provides a model agreement and order on consent for those bona fide pro-
spective purchasers (BFPP) who are required to perform a removal action.
This model addresses those situations where there is a federal interest or
where the work is complex or significant in extent, such as where EPA will
oversee the removal action or where the removal work will exceed the "rea-
sonable steps to prevent releases" obligation upon which BFPP status de-
pends.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/bfpp-ra-mem.pdf
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Municipal Immunity from CERCLA Liability for Property Acquired
through Involuntary State Action
October 20,1995
Sets forth EPA and DOJ policy regarding the government's enforcement of
Superfund against lenders and against governmental entities that acquire
property involuntarily.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/immunity-cercla-mem.pdf
Policy on CERCLAEnforcement Against Lenders and Government
Entities that Acquire Property Involuntarily, updated version of Septem-
ber 22, 1995 memorandum
October 23,1995
Provides EPA and DOJ's policy to adhere to the 1992 "Lender Liability Rule"
as official enforcement policy in order to appropriately contend with those
lenders and governmental entities who have acquired contaminated prop-
erty involuntarily.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/cercla-enfinvol-mem.pdf
Policy on Interpreting CERCLAProvisions Addressing Lenders and
Involuntary Acquisitions by Government Entities
June 30,1997
Sets forth EPA's policy on lender and governmental entity involuntary ac-
quisition of contaminated property in light of the amendments to Superfund
as a result of the passage of the Asset Conservation, Lender Liability, and
Deposit Insurance Protection Act of 1996. In addition, this document dis-
cusses how these amendments affect EPA's application of the Lender Li-
ability Rule.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/lendr-aquis-mem.pdf
B6
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Policy on the Issuance of Comfort/Status Letters
November 8,1996
Discusses EPA's policy on the use of comfort/status letters to provide the
recipient party with any releasable information that EPA has pertaining to a
property, as well as interpret what the information means and the likelihood
or current plans for EPA to undertake any Superfund action. A letter is used
in order to facilitate the cleanup and redevelopment of a brownfield site if
there is a realistic perception or probability of incurring liability or if there is
no other mechanism available to address the recipient's concerns. This
document also contains four sample comfort/status letters.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/comfort-let-mem.pdf
Policy Towards Owners of Residential Property at Superfund Sites
July 3,1991
Sets forth EPA's policy to not require an owner of residential property to
undertake response actions or pay cleanup costs, unless the owner has
caused the contamination. This policy does not apply when the owner fails
to cooperate with EPA or a state's response actions, meet CERCLA obliga-
tions, or uses the property inconsistently with a residential use depiction.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/policy-owner-rptpdf
Prospective Purchaser Agreements and Other Tools to Facilitate
Cleanup and Reuse of RCRA Sites
April 8,2003
Discusses three useful tools for EPA to overcome obstacles in cleanup and
reuse of Resource Conservation and Recovery Act (RCRA) sites:
• Prospective Purchaser Agreements (PPA).
• the February 2003 "Final Guidance on Corrective Action Activi-
ties at RCRA Facilities," and
• comfort/status letters.
This document also includes the factors used by EPA to evaluate a request
for a PPA.
To access online: http://www.epa.gov/swerosps/rcrabf/pdf/memoppa.pdf
B7
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Regional Determinations Regarding Which Sites are Not "Eligible
Response Sites" under CERCLA Section 101(41)(C)(i), as Added
by the Small Business Liability Relief and Brownfields
RevitalizationAct
March 6,2003
Provides background information on the definition of an eligible response
site, how the regions make a determination of whether a site fits this defini-
tion, and what the implications of this determination are. This document
also provides the regions with guidance for making these determinations in
conjunction with future site assessment decisions and for sites with past
site assessment determinations.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/reg-determ-small-bus-mem.pdf
Revised Settlement Policy and Contribution Waiver Language Regard-
ing Exempt De Micromis and Non-Exempt De Micromis Parties
November 6,2002
Provides a revision to EPA and DOJ's policy regarding settlements with de
micromis parties at Superfund sites in light of the codification of this policy
in the 2002 Brownfields Amendments. This document also revises the model
contribution waiver language that has been used in CERCLA agreements to
waive private contribution claims against parties that contributed only very
small amounts of waste. In addition, this document contains five attach-
ments of model language.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/supernmu7wv-exmpt-dmicro-mem.pdf
Transmittal of "Supplemental Environmental Projects: Green Building
on Contaminated Properties"
July 24,2004
Contains a fact sheet on supplemental environmental projects to promote
redevelopment on contaminated properties. EPA issued this fact sheet to
improve the environmental performance of redevelopment that follows clean
up at any contaminated property.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/brownfields/sep-redev-fs.pdf
Be
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Standards and Practices for All Appropriate Inquiries; Final Rule
November 1,2005
Final rule detailing the standards and practices for all appropriate inquiries
(AAI). The rule establishes specific regulatory requirements and standards
for conducting AAI into the previous ownership and uses of a property for
the purposes of meeting the AAI provisions necessary to qualify for certain
landowner liability protections under Superfund. The standards and prac-
tices also will be applicable to persons conducting site characterization and
assessments with the use of grants awarded by EPA.
To access online: http://www.epa.gov/swerosps/bf/aai/aai_final_rule.pdf
The Effect of Superfund on Involuntary Acquisitions of Contaminated
Property by Government Entities
December 31,1995
Sets forth EPA's policy on Superfund enforcement against government en-
tities that involuntarily acquire contaminated property. Also describes some
types of government actions that EPAbelieves qualify for a liability exemp-
tion or a defense to Superfund liability.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/fs-involacquprty-rpt.pdf
"Windfall Liens" Guidance Frequently Asked Questions
July 16,2003
Provides questions and answers regarding Superfund's windfall lien sec-
tion, including what properties it applies to, the factors that EPA uses to
determine whether EPA will file a windfall lien, and how the windfall lien
interacts with a § 107(1) lien.
To access online: http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/interim-windfall-lien-faq.pdf
BQ
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Appendix C
Online Resources to Cleanup
Enforcement, Brownfields,
and Land Revitalization
Information and Documents
I. Superfund Redevelopment Program
Superfund Redevelopment Web site
This Web site acts as a central resource for the Superfund Redevel-
opment program, providing basic information about the program.
as well as information about individual Superfund sites. This Web
site also provides links to necessary redevelopment tools and policy
and guidance documents to facilitate the cleanup process.
http://www.epa.gov/superfund/programs/recycle/index.htm
Superfund Redevelopment Tools
The Web site provides an overview and acesss to the wide array of
tools, resources, and services that Superfund Redevelopment has
identified and made available for a broad range of audiences - to
help in better understanding the status and characteristics of a site
as well as to explore opportunities for redevelopment.
http://epa.gov/superfund/programs/recycle/tools/index.html
"Reusing Superfund Sites" (PDF) - October 2006
This report provides an overview of the Superfund Redevelopment
Initiative (SRI), a coordinated national effort to facilitate the return
of the country's most hazardous sites to productive use. This re-
port details the successful attempt of communities to reclaim and
reuse thousands of acres of idle land in partnership with SRI.
http://epa.gov/superfund/programs/recycle/pdf/reusingsites.pdf
C-1
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Superfund Reuse Policy and Guidance Web site
Web site provides access to EPA policy on tools for the redevelop-
ment of Superfund sites, including incorporating future land use con-
siderations into the discussion of appropriate contamination remedies
and in making Ready for Reuse (RfR) determinations.
http://www.epa.gov/superfund/programs/recycle/policy/reuse.html
Community Reinvestment Act Fact Sheet
This fact sheet discusses the interaction between the 1977 Commu-
nity Reinvestment Act (CRA) and environmental cleanup or redevel-
opment. The CRA requires banks, thrifts, and other lenders to make
capital available in low- and moderate-income urban neighborhoods.
In 1995, Congress revised the regulations so that lenders subject to
the CRA can now claim community development loan credits for loans
made to help finance environmental cleanup or redevelopment when
it is part of a revitalization effort in low- and moderate-income commu-
nity.
http://www.epa.gov/swerosps/bf/html-doc/cra.htm
II. Brownfields and Land Revitalization
Brownfields and Land Revitalization Web site
Web site contains information about EPA's brownfields program in-
cluding the Brownfields Law, EPA brownfields grants, technical tools
and resources as well as information on brownfields projects across
the country.
http://www.epa.gov/swerosps/bf/index.html
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Interim Approaches for Regional Relations with State Voluntary
Cleanup Programs - November 14,1996
Sets forth the baseline criteria which EPA will employ to evaluate the
adequacy of a state's application for funding of a Voluntary Cleanup
Program (VCP). These criteria will also be used during negotiation of
Memoranda of Agreements (MO As) which can constitute a planning
mechanism for division of labor at sites between EPA and the states.
http://www.epa.gov/swerosps/bf/html-doc/vcp.htm
Technical Approaches to Characterizing and Redeveloping
Brownfields Sites: Municipal Landfills and Illegal Dumps (PDF) -
January 2002
Provides guidance to decision-makers, such as city planners, private
sector developers, and others, to achieve a better understanding of the
common technical issues involved in assessing and cleaning up
brownfield sites.
http://www.epa.gov/ORD/NRMRL/pubs/625r02002/625r02002.pdf
Anatomy of Brownfields Redevelopment - October 2006
Provides an overview of the brownfield redevelopment process. In
addition, this document discusses the brownfields real estate redevel-
opment process, along with key challenges, critical participants, and
example redevelopment scenarios.
http://www.epa.gov/swerosps/bf/anat_bf_redev_101106.pdf
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AH Appropriate Inquiries Web site
Web site Provides a link to the final rule establishing specific regula-
tory requirements for conducting all appropriate inquiries (AAI) into
previous ownership, uses, and environmental conditions of a prop-
erty for the purposes of qualifying for certain landowner liability pro-
tections under CERCLA. The final rule went into effect on November
1,2006. Parties may also comply with the final rule by following the
standards setforthinthe ASTME1527-05 Phase I Environmental Site
Assessment Process.
http://www.epa.gov/swerosps/bf/regneg.htm
Brownfields Federal Programs Guide (2005 Edition) -August 2005
The guide outlines the technical and financial federal resources that
can be leveraged for brownfields cleanup and redevelopment. This
document also offers tips on how to successfully apply for these
resources.
http://www.epa.gov/swerosps/bf/partners/2005_fpg.pdf
I. RCRA Brownfields Prevention Initiative
RCRA Brownfields Prevention Initiative Web site
Web site provides descriptions, official documents and links concern-
ing the RCRA Brownfields Prevention Initiative, a program established
by EPA to encourage the reuse of potential RCRA brownfields so that
the land better serves the needs of the community either through more
productive commercial or residential development or as greenspace.
http://www.epa.gov/swerosps/rcrabf/index.html
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Results-Based Approaches to Corrective Action Guidance Web page -
September 2000
Web site Provides guidance to EPA, State regulators, and owner/op-
erators of how to incorporate results-based approaches where appro-
priate in their cleanups. Results-based approaches are intended to
help identify releases and risks, and increase efficiency of facility
cleanup. These approaches encourage technical and administrative
innovation to achieve environmentally protective cleanups on a facil-
ity-specific basis
http://www.epa.gov/correctiveaction/resource/guidance/gen_ca/
results.htm
Results-Based Approach and Tailored Oversight Guidance (for
Facilities Subject to Corrective Action Under Subtitle C of the
Resource Conservation and Recovery Act)
Provides guidance to help State and EPA regulators, owners and op-
erators of facilities subject to RCRA corrective action, and members of
the public better understand EPA's results-based strategy for RCRA
corrective action.
http://www.epa.gov/correctiveaction/resource/guidance/gen_ca/
reslt-bse.pdf
IV. Underground Storage Tanks
Underground Storage Tanks Web site
Web site providing information relevant to the federal underground
storage tank (UST) program. This site includes questions and answers
about the UST Program, in addition to acting as a gateway to other
helpful sites
http://www.epa.gov/OUST/index.htni
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Underground Storage Tanks—Lender Liability;
Final Rule - September 7,1995
Final rule that limits the regulatory obligations of lending institutions
and other persons who hold a security interest in a petroleum under-
ground storage tank (UST) or in real estate containing a petroleum
UST, or that acquire title or deed to a petroleum UST or facility or
property on which an UST is located. This final rule specifies condi-
tions under which these security interest holders may be exempted
from a RCRA corrective action, technical, and financial responsibility
regulatory requirements that apply to an UST owner and operator. This
rule should result in additional capital availability for UST owners.
many of whom are small businesses, and will assist them in meeting
environmental requirements by improving their facilities.
http://www.epa.gov/OUST/fedlaws/sept0795.htm
V. Office of Solid Waste
Office of Solid Waste Web site
Web site provides information regarding the Office of Solid Waste's
(OS W) regulation of wastes under RCRA. This site also serves as a
gateway to additional helpful sites regarding solid waste.
http://www.epa.gov/epaoswer/osw/index.htm
RCRA Public Participation Manual (1996 Edition) -1996
Serves as a "users manual" that explains how public participation works
in the RCRA permitting process (including corrective action), and how
citizens, regulators, and industry can cooperate to make it work better.
It also describes a wide assortment of activities to enhance public
participation, and includes several appendices that provide lists of
contacts, sources of information, and examples of public participation
tools and activities.
http://www.epa.gov/epaoswer/hazwaste/permit/pubpart/manuaLhtm
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V. Other Non-EPA Sources
National Association of Local Government Environmental
Professionals (NALGEP)
Web site for the National Association of Local Government Environ-
mental Professionals (NALGEP), a not-for-profit organization repre-
senting local government personnel responsible for ensuring environ-
mental compliance and developing and implementing environmental
policies and programs.
http://www.nalgep.org/default.cfm
International City/County Management Association (ICMA)
Web site for the International City/County Management Association
(ICMA), a non-profit organization that provides technical and man-
agement assistance, training, and information resources in the areas of
performance measurement, ethics education and training, community
and economic development, environmental management, technology.
and other topics to its members and the broader local government
community. ICMAcosponsors the bi-annual Brownfields conference
with EPA.
http://icma.org/main/sc.asp
U.S. Green Building Council
Web site for the U. S. Green Building Council (USGBC), a non-profit
organization committed to expanding sustainable building practices.
http://www.usgbc.org/
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Appendix D
Brownfields Contacts
Headquarters
US Environmental Protection Agency
1200 Pennsylvania Ave., NW
Washington, DC 20460-0001
Office of Site Remediation Enforcement
Erin Smith
Phone: 202-564-2038
smith.erin@epa.gov
Matt Sander
Phone: 202-564-7233
sander.matthew@epa.gov
Office of Brownfields and Land Revitalization
DanitaBowling
Phone: 202-566-2025
bowling. danita@epagov
Office of Emergency and Remedial Response
MelissaFriedland
Phone: 703-603-8864
friedland.melissa@epa.gov
Office of Solid Waste (RCRA)
SaraRasmussen
Phone: 703-308-8399
rasmussen. sara@epa. gov
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Regional Contacts
Region 1 - CT, ME, MA, NH, RI, VT
U.S. Environmental Protection Agency
Region 1
One Congress Street
Suite 1100
Boston, MA 02114-2023
Diane Kelley - Brownfields
Phone:617-918-1424
kelley.diane@epa.gov
Rona Gregory - Reuse attorney
Phone:617-918-1096
gregory. rona@epa. gov
Edgar Davis - RCRA reuse
Phone:617-918-1379
davis. edgar@epa gov
Region 2 - NJ, NY, PR, VI
U.S. Environmental Protection Agency
Region 2
290 Broadway
18th Floor
New York, NY 10007
Ramon Torres - Brownfields
Phone: 212-637-4309
torres.ramon@epa.gov
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Michael Mintzer - Reuse attorney
Phone:212-637-3168
mintzer.michael@epa.gov
Deborah Schwenk - Reuse attorney
Phone:212-637-3149
schwenk. deborah@epa. gov
Michael Poetzsch - RCRA reuse
Phone: 212-637-4147
poetzsch.michael@epa.gov
Region 3 - DE, DC, MD, PA, VA, WA
U.S. Environmental Protection Agency
Region 3
1650 Arch Street
Philadelphia, Pennsylvania 19103
Tom Stolle - Brownfields
Phone:215-814-3129
stolle. tom@epa gov
Chris Minshall - Reuse attorney
Phone:215-814-2473
minshall.chris@epa.gov
Deborah Goldblum - RCRA Reuse
Phone:215-814-3432
goldblum.deborah@epa.gov
Russ Fish - RCRA Reuse
Phone:215-8143226
fish.russell@epagov
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Region 4-AL. FL, GA, KY, MS, NC, SC, TN
U.S. Environmental Protection Agency
Region 4
Sam Nunn Atlanta Federal Center
6 IForsyth Street
Atlanta, GA 30303
Michael Norman - Brownfields
Phone: 404-562-8792
michael.norman@epa.gov
Karen Singer-Reuse attorney
Phone: 404-562-9540
singer.karen@epa.gov
Amy McLaughlin - RCRA reuse
Phone: 404-562-8776
mclaughlin.amy@epa.gov
Regions-IL,IN,MI, MN, OH, WI
U.S. Environmental Protection Agency
Region 5
77 West Jackson Boulevard
Chicago, Illinois 60604-3507
Deborah Orr - Brownfields
Phone:312-886-7576
orr. deborah@epa gov
Terry Stanuch - Reuse attorney
Phone:312-886-8044
stanuch.terry@epa.gov
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Ann Wentz - RCRA reuse
Phone:312-886-8097
wentz. ann@epa.gov
Gary Victorine - RCRA reuse
Phone:312-886-1479
victorine.gary@epa.gov
Region 6- AR, LA, MN, OK, TX
U.S. Environmental Protection Agency
First Interstate Bank Tower at Fountain Place
1445 Ross Avenue, Suite 1200
Dallas, Texas 75202-2733
Monica Smith - Brownfields
Phone: 214-665-6780
smith.monica@epa.gov
Barbara Nann - Reuse attorney
Phone:214-665-2157
nann.barbara@epa.gov
Jeanne Schulz - RCRA reuse
Phone: 214-665-7254
schulzj eanne@epa gov
Region?- IA, KS, MOK NE
U.S. Environmental Protection Agency
Region 7
90IN. 5thStreet
Kansas City, Kansas 66101
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Susan Klein - Brownfields
Phone:913-551-7786
klein.susan@epa.gov
Robert Richards - Reuse attorney
Phone:913-551-7502
richards.robert@epa.gov
Stephanie Doolan - RCRA reuse
Phone:913-551-7719
doolan. stephanie@epa.gov
Deborah Kennedy - RCRA reuse
Phone:913-551-7628
kennedy.deborah@epa.gov
Regions-CO,MT,ND, SD,UT,WY
U.S. Environmental Protection Agency
Region 8
1595 Wynkoop Street
Denver, Colorado 80202-1129
Dan Heffernan - Brownfields
Phone:303-312-7074
heffernan. dan@epa. gov
Michael Gleason -Reuse attorney
Phone:303-312-6898
gleason.michael@epagov
Matt Cohn - Reuse attorney
Phone:303-312-6853
cohn.matthew@epa.gov
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Bill Rothenmeyer - RCRA reuse
Phone:303-312-6045
rothenmeyer.william@epa.gov
Region 9-AZ. CA, HO, NV, AS, GU
USEPARegion9
75 Hawthorne Street, SFD 1-1
San Francisco, California 94105
Carolyn Douglas - Brownfields
Phone:415-972-3092
douglas. carolyn@epamail.epa. gov
Marie Rongone - Reuse attorney
Phone:415-972-3891
rongone.marie@epa.gov
Steve Armann - RCRA reuse
Phone:415-972-3352
armann. steve@epa. gov
Region 10 - AK, ID, OR, WA
U.S. Environmental Protection Agency
Region 10
1200 SixthAvenue
Seattle, Washington 98101
Susan Morales - Brownfields
Phone: 206-553-7299
morales. susan@epa. gov
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Kelly Cole -Reuse attorney
Phone:206-553-1506
cole.kelly@epa.gov
Mike Slater - RCRA reuse
Phone: 503-326-5872
slater. mike@epa gov
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