Revitalizing Southeastern Communities
, flftr -f
Liability Protection
Before moving forward on a revitalization project, it may be necessary to overcome developers'
liability concerns. The Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), otherwise known as Superfund, as amended by the Small Business Liability Relief and
Brownfields Revitalization Act of 2002 (Brownfield Amendments or Brownfield Law), is a key tool in
this regard. The exemptions and safeguards in CERCLA, along with other approaches offered by EPA,
give developers many methods for addressing their liability issues.
The Brownfields Amendments created or amended CERCLA liability protection for three classes of
landowners. "Bona Fide Prospective Purchasers" (BFPPs) are those persons who buy contaminated
property after January I I, 2002 (with or without knowledge of the contamination) and satisfy eight
other criteria. "Contiguous Property Owners" are persons that own property contiguous to or
otherwise situated near a contaminating facility, but do not possess the contamination source itself and
have satisfied specific conditions. The "Innocent Landowner" pre-existing defense was clarified by the
Brownfield Amendments.
In all cases, the person seeking the liability protection must not be potentially liable or affiliated with
any individual who is potentially liable. The person seeking exemption from liability must also take steps
to "stop any continuing release; prevent any threatened future release; and prevent or limit any human,
environmental, or natural resource exposure to any previously released hazardous substance."
Parties wishing to be designated Bona Fide Prospective Purchasers must complete the "all appropriate
inquiry" requirement prior to purchasing a contaminated property. For property purchased before May
31,1997, the inquiry should contemplate factors such as "commonly known information about the
property," the property's value absent contamination, and the defendant's ability to detect
contamination. For property purchased on or after May 31,1997, "all appropriate inquiry" refers to a
Phase I Site Assessment, using the procedures established by the American Society for Testing and
Materials (ASTM) standards (note: EPA proposed a regulation defining AAI the final regulation is
expected late 2005 or early 2006).
Following this inquiry, Bona Fide Prospective Purchasers may buy with knowledge of the site's
contamination, while still enjoying liability protections. By contrast, Contiguous Property Owners and
Innocent Landowners must buy their property "without knowing, or having reason to know" about
contamination after completing "all appropriate inquiry" in order to be given protection from liability.
In exchange for the liability protections, the property owner must not impede a response action and
must take reasonable steps to stop continuing releases and prevent future releases of hazardous
substances. The affected property could also be subject to a "windfall lien" if a response action
increased a property's market value while leaving EPA with unrecovered costs.
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All three liability protections impose certain continuing obligations on the part of the designee.
Landowners must comply with all land use restrictions "established or relied on" as part of the
response action, as well as respecting any institutional controls employed in connection with the
project. Institutional controls may include governmental controls, such as zoning measures; proprietary
controls; enforcement documents; and informational devices, such as deed notices.
At times, EPA may also execute Prospective Purchaser Agreements, providing liability protection to a
purchaser of a contaminated property. EPA has stated that, in most cases, these settlements have been
rendered unnecessary by the Brownfields Amendments. However, they may still be employed to
facilitate a transaction that serves the public interest.
EPA Region 4 offers a service to prospective purchasers wishing to buy contaminated property. This
service is called the Prospective Purchaser ("PPI") Response Team Information Service and can be used
for sites with federal cleanup involvement. The purpose of the PPI Response Team is to offer accurate,
comprehensive, and timely information that enables a prospective purchaser to make a business
decision on whether he or she wants to purchase a particular site. The goal is to resolve the issues
Region 4 has identified as critical to the redevelopment of contaminated property. Those issues are:
What is the current status of EPA's cleanup, and what are EPA's future anticipated actions,
including property restrictions?
Is the proposed redevelopment compatible with EPA's cleanup and with existing and
potential property restrictions?
Does the prospective purchaser understand the applicable federal landowner liability
protections?
For Superfund sites, how will EPA settle or resolve any Superfund or Windfall liens?
A prospective purchaser may call Region 4's Brownfield & Land Revitalization Legal Coordinator, or
any staff person involved on the site to schedule a PPI Response Team meeting or conference call to
discuss these issues. Note: Generally, brownfield properties do not undergo federal cleanup.
Prospective purchasers of brownfield properties should contact the state environmental department in
regard to the issues above.
EPA may choose to issue a comfort/status letter if developers, lenders, and similar parties require
clarification as to a property's environmental status. The letter may address: I) potential EPA
involvement at a site; 2) the applicability of particular statutes and policies; 3) cleanup status at a
Superfund or RCRA site; 4) future cleanup steps at a site; 5) a discussion of the above-named issues; 6)
reasonable steps to stop or prevent releases of hazardous substances; and/or 7) discussions of lien
issues.
Sections 101(20) and 101(35) of CERCLA offer liability protection to state and local governments. In
order for this defense to be exercised, contamination must have predated the entity's acquisition of
the property. Additionally, the government must not have contributed to or otherwise exacerbated
the contamination.
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Kathleen (Kat) West
Attorney - EPA R4
4-8-04
Bona Fide Prospective Purchaser Provision
& Interaction with Brownfield Grants
Summary:
On January 11, 2002, President Bush signed into law the Small Business Relief and
Liability and Brownfields Revitalization Act otherwise known as the "Brownfield
Amendments". The main purpose of this new law was to create incentives for the redevelopment
of contaminated properties. The term "Brownfield Amendments" for the new law is a bit of a
misnomer because the Brownfield Amendments not only establish a competitive grant program
for the assessment and cleanup of brownfield sites, it also address important incentives to
redevelop Superfund sites as well. The Bona Fide Prospective Purchaser (BFPP) provision of the
Brownfield Amendments is designed to provide such incentive by offering liability protection to
purchasers of Superfund sites.
*One thing to note is that Superfund sites (removal or remedial), RCRA sites, and a few other
sites undergoing federal cleanup are not within the definition of a brownfield site. Even though these
excluded sites are not within the definition, some of them may be eligible to receive Brownfield grant
money under a Property-Specific Determination.
In a Nutshell:
The BFPP provision plays an important role in two areas. First, it allows developers to
purchase Superfund sites without fear of liability, and second, achieving landowner liability
protected status (normally BFPP status) is a mandatory qualification for grant applicants that
have purchased contaminated property.
So What Does BFPP Status as a Mandatory Qualification Mean?:
Grant funds cannot be used to pay response costs at a brownfield site if the applicant is
potentially liable under Section 107 of the Superfund law. Therefore, applicants that own
contaminated property for which they are applying for a grant must meet the statutory landowner
liability protection criteria found in the Brownfield Amendments. Under normal circumstances
this will mean achieving BFPP status before they buy the property.
What is BFPP Status?
The BFPP provision states that a purchaser who acquires a Superfund site after
January 11, 2002 and who complies with eight criteria will not incur Superfund liability as an
owner of the property. A person who attains and maintains this status is known as a BFPP. The
eight criteria are as follows:
¦ all disposal of hazardous substances occurred before acquisition
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¦ the person made all appropriate inquiries about the property before
acquisition
¦ the person provided all legally required notices with respect to discovery
or release of any hazardous substances at facility
¦ the person exercises appropriate care with respect to hazardous substances found at the
facility by stopping and preventing releases
¦ the person provides full cooperation and access to EPA
¦ the person complies with land restrictions in connection with the response action and
does not impede the effectiveness of an institutional control
¦ the person complies with requests for information and subpoenas
¦ the person is not affiliated with a PRP
This provision is intended to be self-implementing by the purchaser with little
involvement from EPA. EPA will not issue a letter informing the purchaser whether they have
achieved BFPP status. However, EPA does evaluate whether a purchaser has achieved BFPP
status when: (1) a grant applicant who owns contaminated property is applying for a grant, and
(2) a purchaser buys a Superfund site and EPA is determining whether to perfect a Windfall lien
on the site.
So What is "Not Affilitated with a PPR" and "All Appropriate Inquiry"?
Of the eight criteria necessary to achieve BFPP status, the two criteria of "Not Affiliated
with a PRP" and "All Appropriate Inquiry" are the most critical from the grant reviewer's
perspective.
Not Affiliated with a PRP: As mentioned above, grant funds cannot be used to pay response
costs at a brownfield site if the applicant is potentially liable under Section 107 of the Superfund
law. Therefore, any party affiliated with a PRP is ineligible for grant monies. The term
"affiliated" is defined as direct or indirect familial relationships and contractual (other than sale
of property), corporate, or financial relationships. This criteria often trips up local governments
when one division of the local government applies for a grant, but another division or quasi-
governmental unit they are affiliated with is a potentially liable party.
All Appropriate Inquiry: The purpose of this criteria is to encourage knowledgeable buyers who
will have the necessary information to respond appropriately to potential releases of hazardous
substances on their property. This criteria mandates that all purchasers appropriately inquire into
the history of the property and understand the environmental conditions. At present, EPA is
finalizing the Final Rule which will set forth the standards of All Appropriate Inquiry; however
the Brownfield Amendments state that the Final Rule standards must include the following:
inquiry by an environmental professional (Phase I or II), value of the property as if it was not
contaminated, interviews with past and present owners of the property, visual inspection of the
property, etc.
I Have Heard About Windfall Liens. What Are Thev?
The Brownfield Amendments contain a provision called the Windfall Lien
provision. First, for purposes of grant applications this provision is irrelevant. This provision
only becomes relevant when EPA spends Superfund money on a Superfund site and wishes to
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begin a cost recovery action. Therefore, Windfall Liens will never be perfected on a brownfield
property unless that property converts into a Superfund site. However, it is important to
understand this provision because the public is aware of it and as a brownfield professional you
should have a working knowledge of the Brownfield Amendments.
The Windfall Lien provision states that EPA has the authority to place a lien, called a
Windfall Lien, on the property of a BFPP (person who complied with the eight criteria above).
The purpose of the Windfall Lien is to prevent a developer from profiting unduly from a
taxpayer cleanup. In other words, if EPA has outstanding response costs and will substantially
increase the fair market value of a Superfund site because of its cleanup of the site, then EPA
will evaluate whether the purchaser would otherwise unfairly be pocketing that increase in value.
If so, and if it is appropriate according to the "Windfall Lien" guidance, then EPA will offer to
settle the value of the windfall amount or place a Windfall Lien on the property for that amount.
EPA can also issue a comfort letter (called the "Windfall Lien" Comfort Letter) that states
whether EPA intends or does not intend to perfect a Windfall Lien on a particular Superfund site.
Example: say EPA is spending $1 million to clean up a fund-lead site and during the
cleanup a developer approaches EPA and says that they want to become a BFPP. EPA
would respond that they should comply with the eight statutory criteria to avoid
Superfund liability and that there is the potential that EPA may place a Windfall Lien on
the property. EPA may determine that a Windfall Lien is appropriate IF: (1) EPA has
outstanding response costs, (2) the difference between the purchase price and the
appraised "as clean" price is substantially different and that difference is attributable to
EPA's future cleanup. Generally, if the property is already cleaned up (because there will
be no further increase in fair market value attributable to EPA's cleanup) or if the
property will be used for a public purpose EPA will determine that the perfection of a
Windfall Lien on the property of a person with BFPP status is not appropriate.
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Statutory and Regulatory Provisions
CERCLA
As a result of several well-publicized hazardous waste disposal
disasters in the 1970's, Congress passed the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA) in 1980. CERCLA, also known as Superfund,
authorizes EPA to respond to environmental emergencies
involving hazardous wastes or pollutants and contaminants,
initiate investigations and cleanups, and take enforcement
action against responsible parties. To provide money for
these activities, Congress established a trust fund that was
financed by taxes on the manufacture and import of chemicals
and petroleum.
EPA may exercise its response authority through removal or
remedial actions. Removal actions are implemented when
there is an immediate threat to human health and the environ-
ment. EPA has used removal actions to avert fires and explo-
sions, prevent exposure to acute toxicity, and protect drinking
water supplies. Removal actions typically take less than
twelve months to implement and cost less than two million
dollars. Remedial actions address long-term threats to human
health and the environment caused by more persistent contami-
nation sources. Consequently, they usually take much longer
to complete and cost considerably more to implement than
removal actions.
Congress designed CERCLA to ensure that those who caused
the pollution, rather than the general public, pay for the
cleanup. In order to be held liable for the costs or performance
of cleanup under CERCLA, a party must fall within one of four
categories found in CERCLA section 107(a) (see box). Using
CERCLA's polluter pays liability scheme, EPA has ensured the
successful cleanup of many of the nation's worst hazardous
waste sites by those responsible for the contamination - the
Potentially Responsible Parties (PRPs).
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Despite its broad categories of
liable parties, CERCLA also
provides various forms of
liability protection which
extend to all lawsuits brought
under CERCLA, whether
initiated by EPA or by a
private party. A party who
satisfies the statutory provi-
sions can avoid lawsuits
brought by EPA seeking
cleanup costs or a response
action. Additionally, the party
would be protected from third
parties who are trying to
recoup money they expended
in cleaning up a site.
CERCLA's Four
Liability Categories
• Current owner or operator
of the facility;
• Owner or operator of the
facility at the time of
disposal of hazardous
substances;
• Person who generated or
arranged for the disposal
or treatment of hazardous
substances; or
• Transporter of the
hazardous substances, if
this person selected the
disposal or treatment site.
CERCLA's Liability Scheme
Under CERCLA, liability for cleanup is strict and joint
and several, as well as retroactive. The implications of
these features are as follows:
• Strict - A party may be held liable even if it did not act negligently
or in bad faith.
• Joint and several - If two or more parties are responsible for the
contamination at a site any one or more of the parties may be held
liable for the entire cost of the cleanup, 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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Statutory and Regulatory Provisions
Contiguous Property Owners, Bona
Fide Prospective Purchasers, and
Innocent Landowners
The SBLRBRA creates two new conditional exemptions from
CERCLA "owner/operator" liability for contiguous property
owners and bona fide prospective purchasers (BFPP). Again,
these exemptions embody aspects of pre-existing EPA policies.
The new law also modified the existing innocent landowner
defense by clarifying the meaning of "all appropriate
inquiries." All three provisions embody some common
elements for persons to maintain non-liable status while also
including unique provisions and requirements.
Section 221 of the Act adds new § 107(q) which exempts from
owner or operator liability persons that own land contaminated
solely by a release from contiguous, or similarly situated
property owned by someone else. In the case of a contiguous
property owner, the owner must not have known or had reason
to know of the contamination at the time of purchase and must
not have caused or contributed to the contamination. The
section also modifies what constitutes appropriate care/
reasonable steps for contiguous property owners by clarifying
that the requirement does not obligate a contiguous property
owner to conduct groundwater investigations or remediate
groundwater contamination except in accordance with EPA's
pre-existing policy.
The new law generally provides greater protections for
contiguous property owners than EPA's existing policy on
owners of contaminated aquifers. The new law does not limit
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the exemption to properties contaminated by groundwater but
may also apply to soil contamination resulting from
neighboring properties. The Act also grants EPA the authority
to provide assurances that the Agency will not take action
against a person and protection from third party suits. As in
EPA's Contaminated Aquifer Policy, a person who purchases
with knowledge of the contamination cannot claim the
exemption; however, the new law notes that a party who does
not qualify for the exemption for this reason may still qualify
as a BFPP
The most notable aspect of the BFPP provision is that for the
first time Congress has limited the CERCLA liability of a party
who purchases real property with knowledge of the
contamination. The caveats to this exemption, in addition to
the common elements, include a requirement that all disposal
takes place prior to the date of purchase, that the person does
not impede a response action, and that the property may be
subject to a "windfall lien". The windfall lien provision
provides for a lien on the property of a BFPP if EPA has
unrecovered response costs and the response action increased
the fair market value of the property. The lien arises as of the
date the response cost was incurred and the amount cannot
exceed the increase in fair market value attributed to the
response action.
EPA's policy on prospective purchaser agreements (PPAs)
proved one of the most successful and high profile
administrative liability reforms prior to enactment of the new
law. Immediately after passage, EPA was asked repeatedly
whether the Agency would continue to issue PPAs. Many
people suggested that EPA needs to continue the practice,
despite the fact that the legislation provides an exemption and
confronts an ongoing complaint, from some of these same
people, that EPA should not be involved in private real estate
transactions.
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To address this issue, on May 31, 2002, EPA's Office of Site
Remediation Enforcement issued new guidance entitled Bona
Fide Prospective Purchasers and the New Amendments to
CERCLA (also found at http://epa.gov/compliance/resources/
policies/cleanup/superfund/bonf-pp-cercla-mem.pdf). This
guidance states that "EPA believes that, in most cases, the
Brownfields Amendments make PPAs from the federal
government unnecessary." Therefore, in the majority of cases
EPA intends for the law to be self-implementing. However, the
guidance does recognize the following two exceptions where
EPA may enter into an agreement with the purchaser: 1) there
is likely to be a significant windfall lien needing resolution;
and 2) the transaction will provide significant public benefits
and a PPA is needed to ensure the transaction will take place.
The contiguous property owner exemption, the definition of
what constitutes a BFPP, and the innocent landowner defense
found in CERCLA Section 107(b)(3) and the definition of
"contractual relationship" in Section 101(35), all contain the
following common obligations which persons seeking these
exemptions must meet:
• conduct "all appropriate inquiry" prior to purchase of the
property;
• not be potentially liable or affiliated with any person
potentially liable;
• exercise appropriate care by taking reasonable steps to "stop
any continuing release; prevent any threatened future
release; and prevent or limit any human, environmental, or
natural resource exposure to any previously released
hazardous substance;"
• provide full cooperation, assistance, and access to persons
undertaking a response action or natural resource
restoration;
• comply with all governmental information requests
• comply with land use restrictions and not impede the
performance of institutional controls; and
• provide all legally required notices regarding releases of
hazardous substances
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At time of publication, EPA is considering whether to produce
general guidance on these "common elements." EPA has heard
from stakeholders that they need clarification of these
requirements to ensure they take appropriate actions to avoid
liability. EPA would like to ensure national consistency and
provide direction where needed. However, requirements such
as what constitutes appropriate care/reasonable steps will
greatly depend on site specific circumstances.
Changes to CERCLA Section 101(35)(B) now define "all
appropriate inquiries" for purposes of all three provisions.
First, the Act directs EPA to promulgate regulations based on
statutory criteria within two years of date of enactment,
establishing standards for all appropriate inquiry. For
purchases prior to issuance of these regulations, the Act utilizes
two standards based on date of purchase. For purchases prior
to May 31, 1997, the Act sets forth a narrative standard,
directing courts to consider such factors as, inter alia,
specialized knowledge of the defendant, the obviousness of the
contamination, and relationship of purchase price to property
value. For purchases after May 31, 1997, the Act states that
procedures set forth in the American Society for Testing and
Materials, Standard Practice for Environmental Site
Assessment: Phase 1 Environmental Site Assessment Process,
Standard El527-97 shall satisfy the requirement. The section
also provides that for purchasers of property for residential use
or similar use by a nongovernmental or noncommercial entity a
facility inspection and title search shall fulfill the requirements.
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Statutory and Regulatory Provisions
Secured Creditor Exemption
CERCLA Section 101(20)(A) contains a secured creditor
exemption that eliminates owner/operator liability for lenders
who hold indicia of ownership in a CERCLA facility primarily
to protect their security interest in that facility provided they
do not participate in the management of the facility.
Before 1996, CERCLA did not define the key terms used in
this provision. As a result, lenders often hesitated to loan
money to owners and developers of contaminated property for
fear of exposing themselves to potential CERCLA liability. In
1992, EPA issued the "CERCLA Lender Liability Rule" to
clarify the secured creditor exemption. After the Rule was
invalidated by a court in 1994, Congress incorporated many
sections of the Rule into the Asset Conservation, Lender Liabil-
ity, and Deposit Insurance Protection Act of 1996. That Act
amended CERCLA's secured creditor exemption to clarify the
situations in which lenders will and will not be protected from
CERCLA liability. The amended exemption appears at
CERCLA Section 101(20)(E)-(G).
Other Considerations
The 1996 amendment also protects lenders from contribution
actions and government enforcement actions. Regardless of
CERCLA's secured creditor exemption from owner/operator
liability, a lender may be liable under CERCLA as a generator
or transporter if it meets the requirements outlined in CERCLA
Section 107 (a)(3) or (4). In June 1997, EPA issued a lender
policy that further clarifies the liability of lenders under
CERCLA (see page 59). Statutory and Regulatory Provisions
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Participation in Management" Defined
Provides financial or other
advice in an effort to prevent or
A lender "participates in manage-
ment" (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,
undertakes responsibility for
hazardous substance handling
or disposal practices; or
• Exercises control at a level
similar to that of a manager of
the facility, and in doing so,
assumes or manifests
responsibility with respect to
1. Day-to-day decision-
making on enviromnental
compliance, or
2. All, or substantially all, of
the operational (as opposed
to financial or
administrative) functions of
the facility other than
enviromnental compliance.
The term "participate in manage-
ment" does not include certain
activities such as when the lender:
• Inspects the facility;
• Requiries a response action or
other lawful means to address
a release or threatened release;
• Conducts a response action
under CERCLA section
107(d)(1) orunderthe direction
of an on-scene coordinator;
cure default; and,
• Restructures or renegotiates the
terms of the security interest;
provided the actions do not rise
to the level of participating in
management.
After foreclosure, a lender who did
not participate in management
prior to foreclosure is not an
"owner or operator" if the lender:
• Sells, releases (in the case of a
lease finance transaction), or
liquidates the facility;
• Maintains business activities or
winds up operations;
• Undertakes a response action
under CERCLA section
107(d)(1) orunderthe direction
of an on-scene coordinator; or,
• Takes any other measure to
preserve, protect, or prepare the
facility for sale or disposition;
provided the lender seeks to
divest itself of the facility
at the earliest practicable,
commercially reasonable time,
on commercially reasonable
terms. EPA considers this test
to be met if the lender, within
12 months after foreclosure,
lists the property with a broker
or advertises it for sale in an
appropriate publication.
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Statutory and Regulatory Provisions
Limitation of Fiduciary Liability
A "fiduciary" is a person who acts for the benefit of another
party. Common examples include trustees, executors, and
administrators. CERCLA Section 107(n), added by the Asset
Conservation, Lender Liability, and Deposit Insurance Protec-
tion Act of 1996, protects fiduciaries from personal liability in
certain situations, provides a liability limit for those fiduciaries
who are found liable, and describes situations in which fiducia-
ries will and will not receive this statutory protection.
CERCLA's fiduciary provision, however, does not protect the
assets of the trust or estate administered by the fiduciary.
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Fiduciary Liability
For actions taken in a fi-
duciary capacity, liability
under any CERCLA pro-
vision is limited to assets
held in the fiduciary ca-
pacity. A fiduciary will
not be liable in its per-
sonal capacity for certain
actions such as:
• Undertaking or requiring
another person to undertake
any lawful means of
addressing a hazardous
substance;
• Enforcing environmental
compliance terms of the
fiduciary agreement; or
• Administering a facility that
was contaminated before
the fiduciary relationship
began.
The liability limitation
and "safe harbor" de-
scribed above do not limit
the liability of a fiduciary
whose negligence causes
or contributes to a release
or threatened release.
The term "fiduciary"
means a person acting for
the benefit of another
party as a bona fide
trustee, executor, or ad-
ministrator, among other
things. It does not include
a person who:
• Acts as a fiduciary with
respect to a for-profit trust or
other for-profit fiduciary
estate, unless the trust or
estate was created:
0 Because of the incapacity
of a natural person, or
0 As part of, or to facilitate,
an estate plan.
• Acquires ownership or
control of a facility for the
purpose of avoiding liability
of that person or another
person.
Nothing in the fiduciary
subsection applies to a
person who:
• Acts in a beneficiary or non-
fiduciary capacity, directly or
indirectly, and benefits from
the trust or fiduciary
relationship; or
• Is a beneficiary and fiduciary
with respect to the same
fiduciary estate and, as a
fiduciary, receives benefits
exceeding customary or
reasonable compensation.
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Statutory and Regulatory Provisions
Protection of Government Entities
That Acquire Property Involuntarily
CERCLA sections 101(20)(D) and 101(35)(A) protect federal,
state, and local government entities from owner/operator
liability if they involuntarily acquire contaminated property
while performing their governmental duties. If a unit of state
or local government makes an involuntary acquisition, it is
exempt from owner/operator liability under CERCLA. Addi-
tionally, a state, local, or federal government entity that makes
an involuntary acquisition will have a third-party defense to
owner/operator liability under CERCLA if:
The contamination occurred before the government entity acquired the
property;
The government entity exercised due care with respect to the
contamination (e.g., did not cause, contribute to, or exacerbate the
contamination); and
The government entity took precautions against certain acts of the party
that caused the contamination and against the consequences of those
acts.
Regulations set forth at 40 CFR 300.1105, and validated by
the 1996 Asset Conservation, Lender Liability, and Deposit
Insurance Protection Act, provide some examples of involun-
tary acquisitions.
As the following examples indicate, a government entity need
not act completely passive in order to acquire property involun-
tarily. Often government entities must take some sort of
discretionary, volitional action before they can acquire property
following circumstances such as abandonment, bankruptcy, or
tax delinquency. In these cases, the "involuntary" status of the
acquisition is not jeopardized.
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Acceptable Involuntary Acquisitions
EPA considers an acquisition to be "involuntary" if the
government's interest in, and ultimate ownership of, the prop-
erty exists only because the conduct of a non-governmental
party gives rise to the government's legal right to control or
take title to the property.
Involuntary acquisitions by government entities include the
following:
• Acquisitions made by a government entity functioning as a sovereign
(such as acquisitions following abandomnent or tax delinquency);
• Acquisitions made by a government entity acting as a conservator or
receiver pursuant to a clear and direct statutory mandate or regulatory
authority (such as acquisitions of the security interests or properties
of failed private lending or depository institutions);
• Acquisitions made by a government entity through foreclosure and
its equivalents while administering a governmental loan, loan
guarantee, or loan insurance program; and
• Acquisitions made by a government entity pursuant to seizure or
forfeiture authority.
Other Considerations
A government entity will not have a CERCLA liability exemp-
tion or defense if it has caused or contributed to the release or
threatened release of contamination. As a result, acquiring
property involuntarily does not unconditionally or permanently
insulate a government entity from CERCLA liability. Fur-
thermore, the liability exemption and defense described above
do not shield government entities from liability as generators or
transporters of hazardous substances under CERCLA section
107(a)(3) or (4).
In June 1997, EPA issued a policy that further clarifies the
CERCLA liability of government entities that involuntarily
acquire property (see page 59 andfact sheet on page 125).
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Statutory and Regulatory Provisions
De Minimis Waste Contributor
Settlements , Ability to Pay, and the
De Micromis Exemption
At a CERCLA site, some parties may have contributed only
minimal amounts of hazardous substances compared to the
amounts contributed by other parties. Under CERCLA section
122(g), these contributors of small amounts may enter into de
minimis waste contributor settlements with EPA. Such a
settlement provides the waste contributor with a covenant not
to sue and contribution protection from the United States. As a
result, the settling party is protected from legal actions brought
by EPA or other parties at the site. In exchange for the settle-
ment, the de minimis party agrees to provide funds, based on
its share of total waste contribution, toward cleanup, or to
undertake some of the actual work.
Section 102(b) of SBLRBRA amended Section 122(g) of
CERCLA and grants EPA the authority to enter into expedited
settlements with persons who demonstrate an inability or
limited ability to pay response costs. The Act directs EPA to
consider whether the person can pay response costs and still
maintain basic business operations, which includes consider-
ation of financial condition and ability to raise revenues. The
SBLRBRA also requires EPA to provide a written determina-
tion of ineligibility to a potentially responsible party that
requests a settlement under any provision in Sectionl22(g).
Any determination regarding eligibility is not subject to judi-
cial review.
Section 102(a) of SBLRBRA also added new §107(o) to
CERCLA and exempts generators and transporters of de
micromis quantities of hazardous substances from response
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cost liability.1 The new law requires a person seeking the
exemption to demonstrate that "the total amount of the material
containing hazardous substances they contributed was less than
110 gallons of liquid materials and 200 pounds of solid
materials" and that "all or part of disposal, treatment, or
transport occurred before April 1,2001." This exemption is
subject to the following exceptions: 1) if the materials
contribute significantly, either on their own or in the aggregate,
to the cost of the response action or natural resource to the cost
of the response action or natural resource restoration; 2) if the
person fails to comply with an information request; 3) if the
person impedes a response action or natural resource
restoration; or 4) if the person has been convicted of a criminal
violation for conduct to which the exemption would apply.
The Act provides significant protection for generators and
transporters of de micromis amounts of hazardous substances
at NPL sites where disposal, treatment or transport occurred
after April 1, 2001. While EPA is not directed to provide
contribution protection to these parties, the Act includes
substantial disincentives for litigation by private party
plaintiffs. First, the exemption shifts the burden of proof to
private party plaintiffs to show that the exemption does not
apply. Second, the new law makes private party plaintiffs liable
for the defendant's costs and fees if a court finds the defendant
to be exempt under this provision. These provisions should
force potentially responsible parties seeking contribution for
response costs to exercise greater diligence in respect to whom
they drag into court.
The complete text of SBLRBRAmay be found at http://
www.epa.gov/brownfields/html-doc/hr2869.htm
1. § 102(a), 115 Stat. 2356 (to be codified at 42 U.S.C. § 9607(o))(subsequent
citations are to 42 U.S.C.).
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Service Station Dealers Exemption
The Superfund law includes a liability exemption for service
station dealers who accept used oil for recycling. The
exemption is meant to encourage service station dealers to
accept used motor oil for recycling from do-it-yourself
recyclers, i.e., people who change the oil in their own cars,
trucks, and appliances. A dealer may be eligible for the
exemption if the recycled oil is not mixed with any other
hazardous substance and is managed in compliance with Solid
Waste Disposal Act regulations.
As long as a small quantity of used oil was removed from the
engine of a "light duty motor vehicle" or house appliances by
the owner, and the owner presents it to the dealer for delivery
to an oil recycling facility, the dealer can presume that the used
oil is not mixed with other hazardous substances. The mixing
of the used oil with other hazardous substances is what would
trigger Superfund liability.
Superfund defines a service station dealer as persons who own
or operate retail establishments that sell, repair, or service
motor vehicles and accept recycled oil from light vehicle and
household appliance owners for recycling.
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Statutory and Regulatory Provisions
Municipal Solid Waste
Section 102(a) o f SBLRBRA also added §107(p) to CERCLA
which exempts certain generators of municipal solid waste
(MSW) from Superfund response cost liability at NPL sites.
The persons covered by this exemption are owners, operators,
and lessees of residential property; small businesses; and
certain non-profit organizations. This exemption is subject to
all but one of the same exceptions as found in the de micromis
exemption. The new law defines MSW in the following two
ways: 1) as waste generated by a household; and 2) as waste
generated by a commercial, industrial, or institutional entity
which is essentially the same as waste generated by a
household, is collected as part of normal MSW collection, and
contains no greater amounts of hazardous substances than that
contained in the waste of a typical single family household.
Similar to the de micromis exemption, the MSW exemption has
burden of proof and fee shifting provisions to discourage
litigation against exempt parties. However, the burden of proof
provision in the MSW exemption is a bit more complicated
because it differs based on time of disposal and applies in some
cases to both private and governmental plaintiffs. Furthermore,
the statute sets forth a complete bar to private party actions
against owners, operators, or lessees of residential property
which generated MSW. As with the de micromis exemption,
the cost and fee shifting provision only applies to
nongovernmental entities.
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Statutory and Regulatory Provisions
Brownfields Grants, State and Tribal
Funding
In addition to the contiguous property owner, bona fide
prospective purchaser, and innocent landowner provisions, Title
II for the first time provides explicit statutory authority for
EPA's brownfields program. Title II also authorizes EPA to
provide grants to states and tribes to develop response
programs. While this article focuses on the liability provisions
these aspects of the new law are certainly worth mentioning.
Generally, brownfields are considered properties which have
real or perceived contamination that discourages redevelopment
or reuse due to the potential liability of those persons
associated with the site. Since 1995, EPA has maintained a
successful brownfields program aimed at promoting the
cleanup and redevelopment of brownfield properties. The
brownfields program has provided numerous grants and assistance
to states and communities for brownfields assessments,
revolving loan funds for brownfields cleanup, and job training
and development. The program has also worked to identify
"Showcase Communities" that serve as national models for
successful brownfields assessments, cleanups, and
redevelopment.
The new law recognizes EPA's efforts and expands the existing
program. The Act authorizes annual appropriations of $200
million for the brownfields grant program for fiscal years 2002
through 2006. EPA will use appropriations to provide brownfield
characterization and assessment grants, to capitalize revolving
loan funds, and for the first time to provide direct grants for
brownfields cleanup. The Act also provides an
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expanded list of persons eligible for these funds that include
states, local governments, state chartered redevelopment
agencies, tribes, land clearance authorities, and for certain
funds nonprofits and other private entities. The Act provides
ranking criteria for grant distribution and directs EPA to
provide guidance for grant applicants. EPA published guidance
in the Federal Register on October 24, 2002 (Volume 67,
Number 207, pp. 65348-65350) available on line at http://
www.epa.gov/fedreg. Fact sheets titled "Eligibility for
Brownfields Funding" and "Summary of Brownfields Grant
Guidelines" may be found in Appendix B.
Title II also authorizes $50 million annually from 2002 through
2006 to provide assistance for state and tribal response
programs, to capitalize a revolving loan fund for brownfield
remediation, or purchase insurance or create a risk sharing
pool, an indemnity pool, or insurance mechanism to help fund
response actions. To receive grants state and tribal programs
must meet or be working towards several criteria or the state or
tribe must have a memorandum of agreement for voluntary
response programs with EPA. States receiving funds must also
maintain and update annually a public record of sites going
through a state's response program.
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Statutory and Regulatory Provisions
Limitations on the EPACERCLA
Enforcement and Cost Recovery
Authority
Section 231 of SBLRBRA amends CERCLA by adding a new
Section 128. Section 128(b) sets forth limitations on EPA's
enforcement authority under Section 106(a) and cost recovery
authority under Section 107(a). These limitations apply to
actions against persons who have conducted or are conducting
response actions at "eligible response sites" in compliance with
a "State program that specifically governs response actions for
the protection of public health and the environment." The
limitations only apply to response actions commenced after
February 15, 2001 and in states that maintain a public record of
sites being addressed under a state program in the upcoming
year and those addressed in the preceding year. Additionally,
these limitations are subject to specified exceptions.
The definition of an "eligible response site" is found in new
CERCLA Section 101(41). The definition includes
"brownfield sites" as defined in Section 101(39)(A) and (B).
The definition of a brownfield site is very broad in that it
essentially captures any real property with real or perceived
contamination and, generally, excludes facilities:
• subject to a planned or ongoing CERCLA removal;
listed or proposed for listing on the national priorities list;
• subject to a unilateral administrative order, court order,
administrativeorder on consent, or consent decree under
CERCLA;
• subject of a unilateral administrative order, court order,
administrative order on consent, consent decree, or permit under
the Resource Conservation & Recovery Act (RCRA, 42 U.S.C.
Section 6901 et seq.), the Clean Water Act (CWA, 33 U.S.C.
Section 1251 et seq.), the Toxic Substances Control Act (TSCA,
15 U.S.C. Section 2601 et seq.), or the Safe Drinking Water Act
(SDWA, 42 U.S.C. Section 300f et seq.);
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• subject to corrective action under RCRA §§ 3004(u) or 3008(h),
to which a corrective action permit or order has been issued or
modified requiring the implementation of corrective measures;
• a land disposal unit with closure notification submitted and a
closure plan or pennit;on land subject to the custody, jurisdiction,
or Ccontrol of a department, agency, or instrumentality of the
United States, except for land held in trust by the United States for
an Indian Tribe;
• a portion of a facility contaminated by PCBs subject to
remediation under TSCA; or
• a portion of a facility receiving assistance from the Leaking
Underground Storage Tank Trust Fund (LUST Fund sites).
For purposes of the definition of an eligible response site,
LUST Fund sites are included. EPA may include sites
excluded under the fourth, fifth, sixth, and eighth bullets on a
site-by-site basis. The definition of eligible response site
contains an additional exclusion for sites at which EPA has
conducted a PA or SI and after consulting with the State has
determined that the site achieves a preliminary score sufficient
for, or otherwise qualifies for, listing on the NPL.
The limitations on EPA's authority in Section 128(b)(1) are
subject to a number of statutory exceptions. EPA is not
prohibited from taking action if the state requests EPA
assistance; contamination has migrated across state lines or
onto federal property; after considering response actions
already taken, a release or threatened release poses an
imminent and substantial endangerment requiring additional
response actions; or new information indicates that conditions
or contamination at the site may present a threat. If EPA
intends to take an action that may be prohibited under §
128(b)(1), it must notify the state and wait forty-eight hours for
a reply, unless one of these exceptions applies, in which case
EPA must still notify the state but may act immediately.
Additionally, the new law does not prohibit EPA from seeking
to recover costs incurred prior to
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date of enactment or during a period during which the
limitations did not apply.
EPA has decided not to issue guidance on these new limits on
EPA authority. Congress provided a fairly detailed statutory
structure. Also, this provision appears to embody EPA's
current practice of generally not getting involved at sites being
cleaned up under a state program. Some EPA regional
personnel have communicated with their respective states
regarding how they anticipate handling the notification
requirements and state requests for assistance, if necessary.
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Statutory and Regulatory Provisions
RCRA
Congress enacted the Resource Conservation and Recovery Act
(RCRA) in 1976 to protect human health and the environment
from the potential hazards of waste disposal; to conserve
energy and natural resources; to reduce the amount of waste
generated; and to ensure that wastes are managed in an envi-
ronmentally sound manner. RCRA is actually a combination of
the first federal solid waste statutes with subsequent amend-
ments to address hazardous waste and underground storage
tanks (USTs). These three distinct yet interrelated programs
exist as part of RCRA. Subtitle D is the solid waste program
and its focus is on the management of household garbage and
non-hazardous industrial solid waste. Subtitle C is the hazard-
ous waste program and its focus is on the management of
hazardous waste from the time it is generated until its ultimate
disposal. Subtitle I is the underground storage tank program
and its mission is to prevent and clean up releases of petroleum
or hazardous substances from tanks.
States are an integral part of all three of RCRA's programs.
The states oversee most of the Subtitle D solid waste program
whereby they issue permits and ensure compliance with its
requirements. "Under Subtitle C, EPA reviews state programs
that consist of requirements for the generation, transportation,
treatment, storage, and disposal of hazardous wastes for
facilities within that state. If the state program is acceptable,
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 corre-
sponding federal requirements. However, after authorization,
both the state and EPA have the authority to enforce those
requirements."
Past and present activities at RCRA facilities have sometimes
resulted in releases of hazardous wastes into the soil, ground
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water, surface water, and air.
Subtitle C of RCRA requires
the investigation and cleanup
of these hazardous waste
releases at RCRA facilities.
This program is known as
corrective action. The
facilities that fall under the
corrective action program
are generally active ones that
are permitted or are seeking
a permit to treat, store, or
dispose of hazardous waste.
As a condition of the operat-
ing permit, owners/operators
are required to clean up
hazardous wastes that are or
have been released through
current or past activities. It
is, therefore, usually the
current owner and operator
of a facility that is held re-
sponsible for cleaning up
any contamination. However,
other parties may be held
responsible under certain
conditions.
RCRA Cleanup Reforms
In order to expedite the
cleanup at hazardous waste
sites regulated by RCRA,
EPA launched a set of admin-
istrative reforms in 1999 and
2001, known as the RCRA
Cleanup Reforms. EPA
developed the reforms as a
comprehensive way to address
the key impediments to
cleanups, maximize program
flexibility, and spur progress
toward a set of ambitious
national cleanup goals. The
reforms include methods to
enhance public access to
cleanup information and
improve opportunity for
public involvement in the
cleanup process; focus the
program more effectively on
achievement of environmental
results; pilot innovative
approaches; and capitalize on
the redevelopment potential of
RCRA facilities to expedite
cleanup. (See Appendix B)
The RCRA Corrective Action enforcement program
requires owners and operators of RCRA facilities to:
• conduct investigations
• conduct a thorough cleanup of the hazardous release
• monitor the cleanup to make sure it complies with applicable
state and federal requirements
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Statutory and Regulatory Provisions
Underground Storage Tanks -
Lender Liability Rule
(40 CFR Parts 280 and 281)
September 7, 1995
Subtitle I of RCRA contains a "security interest exemption"
that provides secured creditors ("lenders") an explicit statutory
exemption from corrective action for releases from petroleum
USTs. Because the statute is unclear about the scope of the
exemption coverage, EPA issued the UST Lender Liability
Rule which specifies the conditions under which certain se-
cured lenders may be exempted.
Both prior to and after foreclosure of a facility, a lender is
eligible for an exemption from compliance with all Subtitle
I requirements as an UST "owner" and "operator" if the
lender: 1) holds an ownership interest in an UST, or in a prop-
erty in which the UST is located, to protect its security interest
(a lender typically holds property as collateral as part of the
loan transaction); 2) does not engage in petroleum production,
refining, and marketing; and 3) does not participate in the
management or operation of the UST. A lender also must
empty its UST(s) within 60 days after foreclosure and either
temporarily or permanently close the UST(s) unless there
is a current operator at the site who can comply with UST
regulations.
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Statutory and Regulatory Provisions
Standards Applicable to Owners
and Operators of Closed and
Closing Hazardous Waste
Management Facilities: Post-
Closure Permit Requirements and
Closure Process
(40 CFR Parts 264, 265, 270, and 271)
October 22, 1998
Under Subtitle C of RCRA, an owner/operator is required to
obtain a permit to operate a hazardous waste treatment, storage,
or disposal facility (TSDF). RCRA regulations specify the
requirements that must be met when closing hazardous waste
land disposal units ("units"). There are two ways to close units
under RCRA. The units may either be clean closed by removal
or decontamination of waste or they may be closed by leaving
waste in place with post-closure care. If the facility operates
under a permit, the permit should already contain a closure plan
and include any post-closure requirements. If the facility does
not have a permit, then a post-closure permit is needed only if
waste will be left in place.
This rule, known as the Closure/Post-Closure Rule, amends
RCRA's closure and post-closure care requirements by expand-
ing regulatory options available to EPA and authorized state
programs. These options remove impediments to cleanup at
hazardous waste facilities in two areas. First, regulators may
either issue a post-closure permit to a facility or impose the
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same requirements in an enforceable document issued under an
alternate non-permit authority. Second, EPA and authorized
states may use corrective action requirements to address these
units. The corrective action program, as discussed in the rule,
allows EPA and authorized states to clean up under RCRA,
CERCLA, or state authority authorized for this rule.
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Statutory and Regulatory Provisions
Hazardous Waste Identification
Rule for Contaminated Media
(HWIR-Media) Rule
(40 CFR Part 260 etseq)
November 30, 1998
EPA issued new RCRA
requirements for hazard-
ous remediation waste that
is treated, stored, or
disposed of during
cleanup actions. This
rule, known as the HWIR-
Media rule, streamlines
the RCRA permit require-
ments for cleanup activi-
ties through the use of
remedial action plans
(RAPs). It also eliminates
the requirement for
facility-wide corrective
action at sites that are only
required to obtain a permit
because of the cleanup
activities and discusses
the use of a "staging pile"
for temporary cleanup
waste storage.
HWIR Media Rule:
• Makes permits for treating,
storing, and disposing of
hazardous remediation wastes
faster and easier to obtain;
• Provides that obtaining these
permits will not subject the
owner and/or operator to
facility-wide corrective action;
• Creates a new kind of unit
called a "staging pile" that
allows more flexibility to
temporarily store remedia-tion
waste during cleanup;
• Excludes dredging materials
from RCRA Subtitle C
(hazardous waste manage-
ment requirements) if they are
managed under an appropriate
permit under the Marine
Protection, Re-search and
Protection Act or the Clean
Water Act; and,
• Makes it faster and easier for
states to receive author-ization
when they update
their RCRA programs to
incorporate Federal RCRA
regulation revisions.
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Statutory and Regulatory Provisions
Corrective Action Management
Unit (CAMU) CFR Amendments
Use of CAMUs was authorized in 1993 for the purpose of on-
site treatment, storage, and disposal of hazardous wastes
managed for implementing cleanup. When cleanup wastes are
managed within a CAMU, they do not trigger certain Resource
Conservation and Recovery Act requirements that apply to
wastes generated by industrial processes. This gives the site
cleanup manager much more flexibility to consider a broader
range of cleanup options tailored to site- and waste-specific
conditions, and has led to faster and more aggressive cleanups
at individual sites.
The CAMU amendments are intended to provide minimum
standards for operation of CAMUs. They address concerns of
some stakeholders that management discretion under the
original rule might lead to mistakes or abuse. EPA believes the
amendments protect human health and the environment with-
out undoing the benefits of the CAMU rule, and make the
corrective action process is more consistent nationally, more
explicit, and more predictable in its results.
The final CAMU amendments for the management of remedia-
tion wastes were signed by the Administrator on December 21,
2001. They establish standards governing: (1) the types of
wastes that may be managed in a CAMU; (2) the design
standards that apply to CAMUs; (3) the treatment requirements
for wastes placed in CAMUs; (4) information submission
requirements for CAMU applications; (5) responses to releases
from CAMUs; and (6) public participation requirements for
CAMU decisions.
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In addition, this rule "grandfathers" certain categories of
CAMUs and creates new requirements for CAMUs used only
for treatment or storage. States currently authorized for the
CAMU rule are granted "interim authorization by rule." Expe-
dited authorization is provided for states authorized for correc-
tive action, but not the CAMU rule.
In response to comments, the Agency modified staging pile
rules to allow physical treatment in staging piles, expanding the
universe of CAMU-eligible wastes to include buried tanks
containing wastes, and giving Regional Administrators discre-
tion to choose a leaching test other than the Toxicity Character-
istic Leaching Procedure (TCLP) to assess treatment. It also
adds a new provision allowing off-site placement of hazardous
CAMU-eligible waste in hazardous waste landfills, if they are
treated to meet modified CAMU treatment standards. States
that are already authorized for the 1993 CAMU Rule have 60
days to notify EPA that they intend to use the revised Correc-
tive Action Management Unit Standards rule as guidance.
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EPA Policies and Guidances
Policy Towards Owners of
Residential Property at
Superfund Sites
July 3, 1991
Owners of residential property located on a CERCLA site have
raised concerns that they would be responsible for performance
of a response action or payment of cleanup costs because they
fell within the definition of "owner" under CERCLA. Addi-
tionally, these owners were concerned that they might be
unable to sell their properties given the uncertainty of EPA
taking action against them or the new owners. EPA issued its
policy toward residential property owners to clarify when it
would not require these owners to perform or pay for cleanup.
The policy states that EPA, in the exercise of its enforcement
discretion, will not take an enforcement action against an
owner of residential property unless his activities lead to a
release or threat of release of hazardous substances, resulting in
EPA taking a response action at the property.
EPA's policy also applies to lessees of residential property
whose activities are consistent with the policy. In addition, the
policy applies to parties who acquire residential property
through purchase, foreclosure, gift, inheritance, or other form
of acquisition, as long as those persons' activities after acquisi-
tion are consistent with the policy.
Other Considerations
With respect to EPA's exercise of enforcement discretion under
this policy, it is irrelevant whether an owner of residential
property has or had knowledge or reason to believe that con-
tamination was present on the site at the time of purchase or
sale of the residential property.
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Threshold Criteria
An owner of residential property located on a CERCLA
site is protected if the owner:
• Has not and does not engage in activities that lead to a release or
threat of release of hazardous substances, resulting in 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 are taking to implement a CERCLA response action;
• Does not improve the property in a manner inconsistent with
residential use; and
• Complies with institutional controls (e.g., property use restrictions)
that may be placed on the residential property as part of the Agency's
response action.
For further information contact:
(202)564-5100
Office of Site Remediation Enforcement
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EPA Policies and Guidances
Policy Towards Owners of Property
Containing Contaminated Aquifers
July 3, 1995
The contaminated aquifer policy addresses the CERCLA
liability of owners of property that contain an aquifer contami-
nated by a source or sources outside their property. These
owners were concerned that EPA would hold them responsible
for cleanup under CERCLA even though they did not cause
and could not have prevented the groundwater contamination.
The policy states that EPA, in an exercise of its enforcement
discretion, will not take an action under CERCLA to require
cleanup or the payment of cleanup costs provided that the
landowner did not cause or contribute to the contamination.
Other Considerations
If a third party who caused or contributed to the contamination
sues or threatens to sue the landowner, EPA may consider
entering into a de minimis landowner settlement with the
landowner covered under this policy.
For further information contact:
Elisabeth Freed - (202) 564-5117
Office of Site Remediation Enforcement
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Threshold Criteria
A landowner is protected by this policy if all of the follow-
ing 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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EPA Policies and Guidances
Policy on Interpreting CERCLA
Provisions Addressing Lenders and
Involuntary Acquisitions by
Government Entities
June 30, 1997
The lender liability policy clarifies the circumstances in which
EPA intends to apply, as guidance, the provisions of the 1992
CERCLA Lender Liability Rule ("Rule") and its preamble in
interpreting CERCLA's lender and involuntary acquisition
provisions. The Asset Conservation, Lender Liability, and
Deposit Insurance Protection Act of 1996 amended these
CERCLA provisions and generally followed the approach of
the Rule. EPA's subsequent lender policy explains that when
interpreting the amended secured creditor exemption, EPA will
treat the Rule and its preamble as authoritative guidance. For
example, the amendments do not clarify the steps that a lender
may take after foreclosure and still remain exempt from owner/
operator liability. In making liability determinations, EPA,
following its policy, will defer to the Rule (see box, page 60).
The 1996 amendment also validates the portion of the Rule that
addresses involuntary acquisitions by government entities.
EPA's policy clarifies that similar to the preamble of any valid
regulation, EPA will look to the preamble to the CERCLA
Lender Liability Rule as authoritative guidance on the meaning
of the portion of the Rule that addresses involuntary acquisitions.
For further information contact:
Bob Kenney - (202) 564-5127
Office of Site Remediation Enforcement
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Example
After foreclosure, a lender who did not "participate in
management" prior to foreclosure may generally:
• Maintain business activities;
• Wind up operations; and
• Take actions to preserve, protect, or prepare the property for sale
provided that the lender attempts to sell or re-lease the property
held pursuant to a sale or lease financing transaction, or otherwise
divest itself of the property in a reasonably expeditious manner
using commercially reasonable means. This timeframe will
generally be met if the lender, within 12 months of foreclosure,
lists the property with a broker or advertises it for sale in an
appropriate publication.
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EPA Policies and Guidances
Policy on the Issuance of EPA
Comfort/Status Letters
November 12, 1996
Some properties may remain unused or underutilized because
potential property owners, developers, and lenders are unsure
of the environmental status of these properties. By issuing
comfort/status letters, EPA helps interested parties better
understand the likelihood of EPA involvement at a potentially
contaminated property. Although not intending to become
involved in typical private real estate transactions, EPA is
willing to provide a comfort/status letter when appropriate.
Comfort/status letters are intended to clarify the likelihood of
EPA involvement at a site; identify whether a party is protect-
ed by a statutory provision or discretionary enforcement policy;
or indicate the progress of a Superfund cleanup. If EPA is not
involved at the property, the party may be referred to the
appropriate state agency for further information.
Comfort letters address a particular set of circumstances and
provide whatever information is contained within EPA's data-
bases. Questions typically addressed by comfort letters
include:
Is the site or property listed in CERCLIS?
Has the site been archived from CERCLIS?
Is the site or property contained within the defined boundaries of a
CERCLIS site?
Has the site or property been addressed by EPA and deleted from the
defined site boundary?
Is the site or property being addressed by a state voluntary cleanup
program?
Is EPA planning or currently performing a response action at the site?
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Evaluation Criteria
EPA may issue a comfort letter upon request if:
• The letter may facilitate cleanup and redevelopment of potentially
contaminated property;
• There is the realistic perception or probability of incurring CERCL A
liability.
• There is no other mechanism available to adequately address the
party's concerns.
Are the conditions at the site or activities of the party addressed by a
statutory provision or EPA policy?
Is the site in CERCLIS but designated as state-lead or deferred to the
state agency for cleanup?
The agency generally uses four sample comfort letters to
respond to requests. The samples can be found in Appendix D.
A summary of the report on the effectiveness of comfort/status
letters may be found in Appendix C.
For further information contact:
Elisabeth Freed - (202) 564-5117
Office of Site Remediation Enforcement
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EPA Policies and Guidances
Interim Approaches for Regional
Relations with State Voluntary
Cleanup Programs
November 14, 1996
State and local empowerment to clean up sites is at the center
of EPA's Brownfields program. Many states have developed
voluntary cleanup programs that are designed to achieve pro-
tective cleanups at sites that are not on the NPL.
EPA regional offices have developed partnerships with states
that have voluntary cleanup programs through the negotiation
of Memoranda of Agreements (MO As). Through the MO A,
EPA and the interested state address state capabilities, pro-
grammatic areas, and the types of sites the state will include in
the MOA.
With the guidance, EPA intends to facilitate regional/state
MOA negotiations. The MOA delineates the roles and respon-
sibilities between a state and EPA with respect to sites being
cleaned up under the state's voluntary cleanup programs. This
interim guidance sets out six baseline criteria that are evaluated
before a region enters into an MOA with a state for its volun-
tary cleanup program. Through the completed and signed
MOA, EPA acknowledges the adequacy of the state voluntary
cleanup program. EPA also agrees that for sites addressed
under the MOA, it does not plan or anticipate taking a removal
or remedial action, unless EPA determines that there may be an
imminent and substantial danger to public health or welfare or
the environment.
Similar to CERCLA MO As, EPA is developing Memoranda of
Understanding (MOUs) between interested states and EPA
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regional offices when states
use an appropriate non-RCRA
authorized state authority to
oversee the cleanup of specific
RCRA facilities. Where
considered mutually benefi-
cial, a regional office, working
with Headquarters, may enter
into a MOU to solidify expec-
tations and worksharing
arrangements between the
region and state.
For further information contact:
Matt Sander - (202) 564-7233
Office of Site Remediation Enforcement
Jennifer Wilbur - (202) 566-0797
Outreach and Special Project Staff
Program Evaluation Criteria
EPA may enter into a MOA that addresses a state voluntary
cleanup program if all of the following baseline criteria are
met:
• Opportunities for meaningful community involvement.
• Voluntary response actions are protective of human health and the
enviromnent.
• Adequate resources to ensure that voluntary response actions are
conducted in an appropriate and timely manner, and that both
technical assistance and streamlined procedures, where appropriate,
are available from the state agency responsible for the voluntary
cleanup program.
• Mechanisms for the written approval of response action plans and a
certification or similar documentation indicating that the response
actions are complete.
• Adequate oversight to ensure that voluntary response actions are
conducted in such a manner to assure protection of human health
and the enviromnent, as described above.
• Capability, through enforcement or other authorities, of ensuring
completion of response actions if the volunteering party(ies)
conducting the response action fail(s) or refuse(s) to complete the
necessary response action, including operation and maintenance or
long-term monitoring activities, if appropriate.
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EPA Policies and Guidances
Revised Settlement Policy and
Contribution Waiver Language
Regarding Exempt De Micromis and
Non-Exempt De Micromis Parties
November 6, 2002
EPA provides enhanced protection for a subset of de minimis
waste contributors referred to as non-exempt de micromis
waste contributors. Non-exempt de micromis settlements may
be available to parties who generated or transported a minus-
cule amount of waste to a Superfund site, which is an amount
less than the minimal amount normally contributed by
de minimis parties. EPA's revised guidance defines eligible
non-exempt de micromis parties as those parties who fall
outside the statutory definition of a qualified exempt de
micromis (see Section 107(o)), but who may be deserving of
similar treatment based on case-specific factors. The presump-
tive cut-off for a non-exempt de micromis party is 110 gallons
(e.g., two 55 gallon drums) or 200 pounds of material contain-
ing hazardous substances. Regions have the flexibility to
consider higher amounts on a site-specific basis.
As a matter of policy, EPA does not pursue non-exempt
de micromis waste contributors for the costs of cleaning up a
site. If, however, a non-exempt de micromis party is threatened
with litigation by other parties at the site for the costs of
cleanup, EPA may enter into a zero dollar settlement with the
non-exempt de micromis party. Non-exempt de micromis
settlements provide both a covenant not to sue from the Agency
and contribution protection against other parties at the site.
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Refer to http://cfub.sdc-moses.com/compliance/policies/
cleanup/superfund/index.cfm for more information.
For further information contact:
Victoria Van Roden - (202) 564-4268
Office of Site Remediation Enforcement
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EPA Policies and Guidances
Guidance on Enforcement
Approaches for Expediting RCRA
Corrective Action
Expediting corrective action cleanup activities at facilities that
treat, store, or dispose hazardous waste is essential to protect-
ing human health and the environment and potentially making
these properties available for other uses. EPA Regions and
States authorized to implement the corrective action program in
lieu of EPA have developed innovative approaches to achieve
timely, protective, and efficient cleanups. This guidance
describes a number of enforcement approaches to expedite
corrective action (see box on page 68). It provides examples of
approaches designed to reduce the amount of process and
procedures such as creative use of schedules and other federal
statutory cleanup authorities. It also provides specific ex-
amples of tools such as facility-initiated agreements that are
more flexible than typical corrective action enforcement orders.
For further information contact:
Karin Koslow - (202) 564-0771
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Expediting Components of Corrective Action
Creative Schedules and Deadlines - include time limits to
negotiate work plans, consent orders, and permits; fixed and
flexible schedules of compliance; and limiting work prod-
uct revisions.
Alternatives to a Collaborative Approach - encourage a
more cooperative response from the facility owner/operator
by presenting a less collaborative alternative such as a judi-
cial action or a unilateral administrative order (UAO).
Penalty Provisions - include penalty provisions in enforce-
ment documents, and collection of penalties when the facil-
ity fails to comply with the permit or order.
Other Federal Statutory Authorities - use other federal
authorities such as CERCLA § 106(a).
Innovative Mechanisms to Require Corrective Action
F acility-Initiated Agreement
A facility-initiated agreement is a non-binding corrective
action agreement between EPA and a facility owner/opera-
tor. The purpose of the agreement is to allow a motivated
owner/operator to initiate and perform corrective action in a
manner that is consistent with all relevant laws and regula-
tions and avoid negotiating an enforceable order.
Streamlined Consent Order
A streamlined consent order is a pared-down, results-based
order. It contains enforceable deadlines and stipulated pen-
alties and lacks the traditional specificity as to how the owner/
operator should accomplish corrective action activities. In-
stead, it identifies performance standards that must be met
by specific dates. With this type of order, EPA's over-
sight role is minimized throughout the corrective action process.
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Innovative Mechanisms to Require Corrective Action
Unilateral Letter Order
The unilateral letter order is a legally binding, results-based
order that can be entered into under any RCRA statutory
administrative order authority. It is similar to a letter in that
it is written in a less formal format and style than a tradi-
tional order.
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70
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EPA Policies and Guidances
Coordination Between RCRA
Corrective Action and Closure and
CERCLA Site Activities
September 24, 1996
The goal of this memorandum is to continue to coordinate the
CERCLA and RCRA cleanup programs in order to eliminate
duplication of effort, streamline cleanup processes, and build
effective relationships with states and tribes. Three areas are
discussed in the memorandum to accomplish this goal: accep-
tance of decisions made by other remedial programs; deferral
of activities and coordination among RCRA, CERCLA and
state/tribal cleanup programs; and coordination of the specific
standards and administrative requirements for closure of regu-
lated units with other cleanup activities. Topics that are dis-
cussed in greater detail in the memorandum include program
deferral and coordination between programs with examples of
current approaches that are in use.
For further information contact:
Office of Site Remediation Enforcement
(202)564-5100
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EPA Policies and Guidances
Comfort/Status Letters for RCRA
Brownfield Properties
February 14, 2001
On November 8, 1996, the Office of Enforcement and Compli-
ance Assurance (OECA) issued its "Policy on the Issuance of
Comfort/Status Letters," which focuses on properties primarily
associated with Superfund sites. Since that time, regional staff
and private parties have inquired about the applicability of
that policy to property within or adjacent to facilities subject
to RCRA.
While EPA has not yet issued a formal policy on the use of
RCRA comfort/status letters, there may be sites subject to
RCRA requirements where the circumstances are analogous to
the circumstances at Superfund sites. Site-specific circum-
stances determine whether a comfort/status letter is appropri-
ate, but generally comfort/status letters may be appropriate at
brownfields associated with RCRA treatment, storage, and
disposal facilities; "generator-only" sites; or other property
where RCRA hazardous waste is discovered during cleanup
and/or redevelopment activities. This memorandum encour-
ages regional staff to use "comfort/status" letters at such
RCRA facilities, where appropriate, and provides some ex-
amples of regional RCRA comfort/status letters. In the RCRA
context, comfort/status letters relate only to EPA's intent to
exercise its RCRA corrective action response and enforcement
authorities. As with the Superfund policy, the "comfort" comes
from knowing what EPA knows about the property and what
EPA's intentions are in terms of a response action. Regional
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staff should look to the Superfund comfort/status letter policy
for general guidelines on the issuance of RCRA comfort/
status letters.
For further information contact:
Elisabeth Freed- (202) 564-5117
Office of Site Remediation Enforcement
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Report on U.S. EPA's Prospective
Purchaser Agreements and
Comfort/Status Letters:
How Effective Are They?
September 29, 2000
Background
To quell the growing concern that some parties may incur
Superfund liability although they did not cause the hazardous
waste contamination, EPA developed two mechanisms - PPAs
and comfort/status letters.
Over the years, EPA had heard that these tools were very
effective in allaying those concerns although the Agencies had
not collected data.
In order to substantiate the anecdotal claims that PPAs and
comfort/status letters enabled parties to reuse formerly con-
taminated property, OSRE undertook a survey analysis of
regional staff and private parties. OSRE used the surveys to
collect general information on the use of these tools, obtain
specific data on property cleanup and reuse, and determine the
effectiveness of these tools in meeting the needs of private
parties and regional staff to cleanup and reuse contaminated
property.
OSRE evaluated the survey responses according to the follow-
ing criteria:
How instrumental PPAs and comfort/status letters have been in
accelerating site cleanup and revitalization of blighted properties;
How effective PPAs and comfort/status letters have been in meeting the
needs of the requesters;The timeliness of the PPA and comfort/status
letter process, and whether they have satisfied the affected parties;
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What affected parties consider
the most important elements of
PPAs or comfort/status letters;
The types of property cleanups
and reuse situations in which
PPAs or comfort/status letters
have been most useful;
The problems parties have
encountered while going
through the PPA or comfort/
status letter process and
recommendations for addressing
those problems; and.
Alternatives to PPAs and
comfort/status letters.
Survey Results
Comfort/Status Letters
Regional and private party
respondents were given the
opportunity to provide com-
ments on their experiences in
negotiating a comfort/status
letter and provide suggestions
for improving the process.
The majority of private parties
were satisfied with EPA's
comfort/status letter process.
The following is a summation
of the most consistent and
significant suggestions offered
by regional and private party
respondents.
Benefits:
Comfort/status letters, enable
the return of properties to more
environmentally beneficial uses.
Comfort/status letters help local
communities revive their
neighborhoods.
Comfort/status letters enhance the
economic viability of reuse projects.
Comfort/status letters are a relatively
fast and inexpensive tool to facilitate
brownfield redevelopment.
Improvements:
Accelerate the comfort/status letter
process.
Ensure that EPA and private parties
explore other options that could
alleviate concerns over Federal
Superfund liability.
Strengthen assurance and reduce
caveats in comfort/status letters.
Archive sites that are eligible for
comfort/status letters whenever
possible.
The comfort/status letter survey
findings indicate that regional
offices are effectively implement-
ing the policy and that the letters
have facilitated property reuse.
Respondents also reported that
comfort/status letters, for the most
part, are relatively easy to obtain.
EPA has already made progress
towards facilitating property reuse
and addressing some of the chal-
lenges presented by survey respon-
dents.
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Survey Results
PPAs
The majority of private parties
were satisfied with EPA's PPA
process. Although respon-
dents provided relatively few
comments, there were consis-
tent themes that underscore
the benefits and areas that
EPA had already identified for
improvement. Other factors
also came to light. For example,
the more fully characterized a
site, the faster EPA and
purchasers finalize the PPA.
Benefits:
PPAs help local communities
revive their neighborhoods.
PPAs support diverse uses at
properties of varying sizes.
PPAs enhance the economic
viability of reuse projects.
PPAs allow property reuse and
site cleanup to coincide.
PPAs preserve the Superfund
Trust Fund, thus allowing EPA
to clean up other hazardous
waste sites.
Improvements:
Streamline the PPA process.
Ensure that EPA and private
parties explore other options
that could alleviate concerns
over Federal Superfund
liability.
Provide guidelines on
appropriate consideration.
Improve communication with
states, local governments, and
local communities.
The PPA survey findings
indicate that EPA is effec-
tively implementing its PPA
guidance to encourage and
facilitate the cleanup and
reuse of Superfund sites and
that the number of successful
agreements has increased
significantly in recent years.
Respondents also reported
that EPA, for the most part,
has been responsive to pur-
chasers in meeting their needs
in a timely manner. At the
same time, the respondents
commented that EPA still
could improve the process of
obtaining PPAs. As outlined
on pages 50-51 of the Final
Report, EPA has already made
progress towards its goals of
improving the PPA process
and addressing the difficulties
private parties encountered
while obtaining a PPA.
For further information contact:
Elisabeth Freed - (202) 564-5117
Office of Site Remediation Enforcement
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APPENDIX D
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Sample Comfort/Status Letters
Sample No Previous Superfund Interest Letter
Addressee
Re: [Insert name or description of property/site]
Dear [Insert name of party]:
I am writing in response to your letter dated concerning the property referenced
above. My response is based upon the facts presently known to the U.S. Environmental
Protection Agency (EPA) and is provided solely for informational purposes.
The federal Superfund Program, established to cleanup hazardous waste sites, is adminis-
tered by EPA in cooperation with individual states and local and tribal governments. Sites are
discovered by citizens, businesses, and local, state or federal agencies. When a potential
hazardous waste site is reported, EPA records the available information in its database, the
Comprehensive Environmental Response, Compensation, and Liability Information System
(CERCLIS). [NOTE: if a region practices pre-CERCLIS screening procedures, please include
language indicating that the procedures exists, whether or not the property is in the process of
being "pre-screened", and what this means to the inquirer. Adjustments may be needed to the
sample language contained in this letter.] The fact that a site is listed in CERCLIS, however,
does not mean that an EPA response action will occur at the site or that ownership or operation
of the site is restricted or may be associated with liability. The fact that a property is not listed
in CERCLIS does mean that EPA is not currently planning to take any action under the federal
Superfund program to evaluate the site for inclusion on the National Priorities List (NPL) or to
conduct removal or remediation activities.
The above-referenced property was not identified in a search of the active and archived
records in the CERCLIS database. Please note that its absence from CERCLIS does not
represent a finding that there are no environmental conditions at this property that require
action or that are being addressed under another federal or state program. The absence of the
property from CERCLIS means that, at this time, EPA is not aware of any information
indicating that there has been a release or threat of release of hazardous substances at or from
the facility that needs to be assessed by the federal Superfund program and that no such
assessment has been performed by EPA in the past. I encourage you to contact [insert name of
state or local agency] to determine if they have information regarding the property and its
environmental condition. [Regions also are encouraged to check with other program offices to
determine whether EPA is addressing this site under another statute such as RCRA].
If you would like more comprehensive information on current or historical CERCLIS data
or to request an additional search, please contact the National Technical Information Service
(NTIS), a publishing clearinghouse for government information. The address is: U.S.
Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161 (telephone: (703)
487-4650; fax: (703) 321-8547.) CERCLIS information is also avaliable on the Internet at
http ://www.epa. gov/superfund/index.html#Products. Should you have any further questions
about Superfund, please feel free to contact me at [insert phone number/address.]
Sincerely,
Regional Contact
cc: State contact
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Sample No Current Superfund Interest Letter
Addressee
Re: [Insert name or description of property]
Dear [Insert name of party]:
I am writing in response to your letter dated concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA) and is provided solely for informational purposes. For the reasons
stated below, EPA does not presently contemplate additional Superfund action for this property.
In response to growing concern over health and environmental risks posed by hazardous
waste sites, Congress enacted the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (CERCLA), establishing the Superfund program to clean up
these sites. The Superfund program is implemented by EPA in cooperation with individual
states and local and tribal governments. Sites are discovered by citizens, businesses, and local,
state, or federal agencies. After a potential hazardous waste site is reported to EPA, the
available information is recorded in the Comprehensive Environmental Response and Liability
Information System (CERCLIS), EPA's data management system for Superfund. Sites are
added to CERCLIS when EPA believes that there may be contamination that warrants action
under Superfund.
I. [FOR ARCHIVED SITES]
If, after an initial investigation, EPA determines that the contamination does not warrant
Superfund action, or if an appropriate Superfund response action has been completed, EPA will
archive that site from CERCLIS. This means that EPA believes no further federal response is
appropriate. Archived sites may be returned to the CERCLIS site inventory if new information
necessitating further Superfund consideration is discovered.
EPA has archived the above-referenced property from the CERCLIS site inventory because
[choose one of the following (a, b, or c) to complete the sentence]
[a.], following site evaluation activities, EPA determined that either no contamination was
found or conditions at the property did not warrant further federal Superfund involvement.
[b.] a federal removal action was completed and no further Superfund action is planned for
this property.
[c.] environmental conditions at the property are subject to requirements of [RCRA, UST,
OPA, etc.], however, no further interest under the federal Superfund program is warranted. For
further information concerning these requirements, please contact [name and telephone
number].
[Add to previous sentence] EPA, therefore, anticipates no need to take additional Superfund
enforcement, investigatory, cost recovery, or cleanup action at this archived site unless new
information warranting further Superfund consideration or conditions not previously known to
EPA regarding the site are discovered. EPA will maintain a dialogue with the states and will
continue to refer archived sites to the states for their review and consideration. You may want
to contact [insert state contact, address and telephone number] for further information.
II. [FOR PARTIAL OR FULL DELETIONS FROM NPL OR FOR A SITE BOUND-
ARY SITUATION]
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CERCLIS does not describe sites in precise geographical terms primarily because the
boundaries of the contamination and available information on those boundaries can be
expected to change over time. Once enough information regarding the nature and extent
of the release of the hazardous substances is gathered, EPA can more accurately delineate
the boundaries of a site. [Choose either (a), (b) or (c)].
(a) [If the property was included in a partial deletion from the NPL]
The above-referenced property [is/appears to be] situated within the [name of NPL site]
which is included on EPA's list of high priority hazardous waste CERCLIS sites known as
the National Priorities List (NPL). EPA, however, has determined that no further
investigatory or cleanup action is appropriate at the property under the federal Superfund
program. With the [insert State Agency] concurrence, EPA has decided to delete the
portion of the NPL site which contains the above-referenced property in accordance with
the Agency's A Procedures for Partial Deletions at NPL Sites" (OERR Directive Number
9320.2-11'. August 30. 1996).
(b) [If the property is contained within the NPL site or is defined as the NPL site and
the site has been deleted from the NPL]
The identified property [is/appears to be] [select one: situated within the defined
geographical borders of the [name of NPL site] or defined as the [name of the NPL site]]
which is included on EPA's list of high priority hazardous waste CERCLIS sites known as
the National Priorities List (NPL). EPA, however, has determined that no further
investigatory or cleanup action is appropriate at the property. In consultation with the
[insert State Agency], EPA has decided to delete this property from the NPL in accordance
with "Deletion from the NPL" 40CFR 300.425(e).
(c) [If the property is not part of the CERCLIS site but is nearby]
The above-referenced property is located [near or adjacent to] the [name of CERCLIS
Site], At this time, [statement as to the status of the site at present time: e.g., preliminary
assessment, site investigation, removal, remedial investigation or feasibility study is
underway or is completed]. Based upon available information, the property is not
presently considered by EPA to be a part of the [name of the CERCLIS site],
[Add to end of paragraph (a), (b), or (c)]
EPA, therefore, anticipates no need to take [any/additional] [Superfund enforcement-
include if PRP search and cost recovery are complete] investigatory or cleanup action at
this property unless new information warranting further Superfund consideration or
conditions not previously known to EPA regarding the property are discovered. You may
want to contact [insert state agency information] for further information. [If appropriate,
enclose a copy of the fact sheet on the CERCLIS site],
III. [IF ADMINISTRATIVE RECORD HAS BEEN COMPILED]
EPA has compiled an administrative record for the [name of CERCLIS or NPL Site]
which provides information on the nature and extent of the contamination found at the
site. This record is available at EPA Region — and at [location nearby to the site].
If you have any additional questions, or wish to discuss this information, please feel
free to contact [insert EPA contact and address].
Sincerely yours,
Regional Contact
cc: State contact
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Sample Federal Superfund Interest Letter
Addressee
Re: [insert name or description of property/site] [COMMENT1]
Dear [Insert name of party]:
I am writing in response to your letter dated concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA) and is provided solely for informational purposes.
In response to growing concern over health and environmental risks posed by hazardous
waste sites, Congress passed the Comprehensive Environmental Response Compensation and
Liability Act (CERCLA) and established the Superfund program to clean up these sites. The
Superfund program is implemented by EPA in cooperation with individual states and local and
tribal governments. Sites are discovered by citizens, businesses, and local, state and federal
agencies. After a potential hazardous waste site is reported to EPA, the site-specific
information is recorded in the Superfund database, the Comprehensive Environmental
Response and Liability Information System (CERCLIS). Sites are added to CERCLIS when
EPA believes that there may be contamination that warrants action under Superfund.
EPA initially screens a potential hazardous waste site to determine what type of action, if
any, is necessary. The Superfund program may then perform a preliminary assessment and site
investigation to determine whether contamination at a property is likely to require a federal
cleanup response, an evaluation to determine if a short term response action to eliminate or
reduce contamination is needed, and add the site to EPA's list of high priority hazardous waste
sites known as the National Priorities List (NPL).
EPA is examining [and/or addressing] the property referenced above in connection with the
[insert name of CERCLIS/NPL site] under the authority of CERCLA. [Insert appropriate
paragraphs from Sections I and/or II below. Use III for requests regarding the applicability of
a specific policy. Section IV represents the closing paragraph for all the Federal Superfund
Interest letters].
I. STATUS OF THE IDENTIFIED PROPERTY:
a. The above-referenced property is presently part of [or is] the [insert name of site.]
[Add paragraph from Section II for further information concerning the site.]
b. The above-referenced property may be part of the [insert name of site.] [Add
paragraph from Section II for further information concerning the site ]
II. STATUS OF EPA ACTIVITIES
a. The site has been placed in the Comprehensive Environmental Response,
Compensation and Liability Information System ("CERCLIS") site inventory, but no studies or
investigations have been performed to date. Accordingly, EPA has not developed sufficient
information relating to the nature and extent of contamination to presently determine whether
further federal action is appropriate under Superfund. Additionally, EPA has not yet
determined which properties may be considered part of the site.
b. A Superfund site evaluation is planned at the [insert name of site] to investigate
possible contamination, and where it may be located. Accordingly, EPA has not yet deter-
mined which properties may be considered part of the [insert name of site.] [Add description
of site evaluation activity or attach relevant documents, if available.]
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c. A Superfund site evaluation activity is underway at the [insert name of site] to
investigate possible contamination, and where it may be located. Accordingly, EPA has not yet
determined which properties may be considered part of the [insert name of site.] [Add
description of site evaluation activity or attach relevant documents, if available.]
d. The [insert name of site] has been proposed to [or placed on] the Superfund
National Priorities List ("NPL"). [Refer to and/or attach Federal Register notice.] The
description of [insert name of site] contains EPA's preliminary evaluation of which properties
are affected, although the actual borders of the Superfund site could change based on further
information regarding the extent of contamination and appropriate remedy.
e. A Superfund Remedial Investigation/Feasibility Study (RI/FS) is planned at [insert
name of site.] [Add description of RI/FS and ensuing activities or attach relevant documents, if
available].
f. A Superfund Remedial Investigation/Feasibility Study (RI/FS) is underway at
[insert name of site.] [Add description of RI/FS and ensuing activities or attach relevant
documents, if available].
g. A Superfund Remedial Investigation/Feasibility Study (RI/FS) has been completed
at [insert name of site.] [Add description of RI/FS and ensuing activities or attach relevant
documents, if available].
h. EPA is planning a Superfund Remedial Design/Remedial Action (RD/RA) at [insert
name of site.] [Insert pertinent information such as a description of the ROD and RD/RA, such
as date of issuance of the ROD, schedule for cleanup; Fund lead or PRP implementation,
cleanup progress to date; a schedule for future cleanup, especially a final completion date,
cleanup levels to be achieved, and anticipated future land use of the Site, or attach relevant
informational documents].
i. EPA has commenced a Superfund Remedial Design/Remedial Action (RD/RA) at
[insert name of site.] [Insert pertinent information such as a description of the ROD and RD/
RA, such as date of issuance of the ROD, schedule for cleanup; Fund lead or PRP implementa-
tion, cleanup progress to date; a schedule for future cleanup, especially a final completion
date, cleanup levels to be achieved, and anticipated future land use of the Site, or attach
relevant informational documents].
j. Superfund Remedial Design/Remedial Action (RD/RA) has been completed at
insert name of site.] [If possible provide information on cleanup achievements, whether it was
PRP or Fund-lead, etc., or attach relevant informational documents, if available] A Five-year
Review will [will not] be necessary at [insert name of site.] [Also, describe status with respect
to deletion from the NPL.]
k. A removal action is planned at [insert name of site.] [provide information on
cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene
Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents,
if available.]
1. A removal action is ongoing at [insert name of site.] [provide information on
cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene
Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents,
if available.]
m. A removal action has been completed at [insert name of site.] [provide information
on cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene
Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents,
if available.]
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III. FOR PARTIES OR SITES COVERED BY AN EPA POLICY/STATUTE/REGULA-
TION
Dear [Insert name of party]:
I am writing in response to your letter dated concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA).
As you may know, the above-referenced property is located within or near the [insert name
of CERCLIS site.] EPA is currently taking [insert description of any action that EPA is taking
or plans to take and any contamination problem.]
[Choose either paragraph [a] or [b]]:
[a. For situations when a party provides information showing that 1) a project found to be
in the public interest is hindered or the value of a property is affected by the potential for
Superfund liability, and 2) there is no other mechanism available to adequately address the
party's concerns.]
The [insert policy citation/statutory/regulatory provision], provides that EPA, in an exercise
of its enforcement discretion, will not take an enforcement action against parties who meet the
conditions and criteria described in the [insert policy/statute/regulation]. Based upon the
information currently available to EPA, EPA believes that the [policy/statutory/regulatory
provision] applies to [you/your] situation. I am enclosing a copy of the [policy/statutory or
regulatory provision and fact sheet, if appropriate] for your review.
[b. For situations when a party does not provide information showing that 1) a project
found to be in the public interest is hindered or the value of a property is affected by the
potential for Superfund liability, and 2) there is no other mechanism available to adequately
address the party's concerns, attach the appropriate policy/statutory or regulatory language and
insert the following language]:
The [insert policy citation/statutory/regulatory provision], provides that EPA, in an exercise
of its enforcement discretion, will not take an enforcement action against parties who meet the
conditions and criteria described in the [insert policy/statute/regulation]. [EPA currently does
not have enough information available to determine whether the [insert policy/statutory/
regulatory citation] applies to your situation OR EPA, based upon the current information
available, believes that you/your circumstances do not meet the criteria/provisions of the
[policy/statute/regulation]. I, however, have enclosed a copy of the [policy/statutory or
regulatory language] for your own review and determination of its applicability to you [or your
situation].
IV. CLOSING PARAGRAPH
EPA hopes that the above information is useful to you. [Optional—In addition, we have
included a copy of our latest fact sheet for the (insert name of site.)] Further, we direct your
attention to the [insert location of site local records repository] at which EPA has placed a
copy of the Administrative Record for this site. [Include for section III letters only: This letter
is provided solely for informational purposes and does not provide a release from CERCLA
liability.] If you have any questions, or wish to discuss this letter, please feel free to contact
[insert EPA contact and address].
Sincerely,
Regional Contact
Enclosure
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Sample State Action Letter
Addressee
Re: [Insert name or description of site/property]
Dear [Insert name of party]:
I am writing in response to your letter dated concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA) and is provided solely for informational purposes.
The problem of investigating, responding to, and cleaning property contaminated by
hazardous substances is a complex one. In an effort to maximize resources and ensure timely
responses, EPA and the states work together in responding to properties posing threats of
environmental contamination. Although the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA, also known as "Superfund") is a federal law that
establishes a federal program, the law also envisions and provides for state involvement at sites
handled under the Superfund program. CERCLA explicitly describes scenarios under which a
state may have a significant and prominent role in site activities.
I. [INSERT THIS SECTION FOR SITES DESIGNATED STATE-LEAD IN CERCLIS]
The site about which you have inquired, [site name], is a site that falls under the federal
Superfund program, but has been designated a state-lead. A state-lead designation means that
although the site remains in EPA's inventory of sites and may be on EPA's list of highest
priority sites, the National Priorities List (NPL), implementing responsibilities to investigate
and cleanup that site rest with the state of [insert name of state]. Specifically, [insert name of
state] is responsible for the day-to-day activities at the site and will ultimately recommend the
cleanup for the site. EPA's role is to review some of [insert name of state]'s milestone
documents, if appropriate, provide technical assistance if needed, and, in most cases, approve
the final cleanup method recommended by the state. The state and EPA work together closely,
pursuant to the terms of a Memorandum of Agreement (MO A) to ensure that site responses are
conducted in a timely manner and that interested parties are included in site activities.
Because EPA's day-to-day role at the [insert name of site] is somewhat limited, you should
check with the [your state or state's environmental program] for more detailed information on
site activities, [insert name of state] is best able to provide you with detailed information
about the site and public documents regarding site activity. [Regions should include the state
RPM name and number, or at least the state's applicable department name and number].
II. [INSERT THIS SECTION FOR SITES DESIGNATED ADEFERRED TO STATE
AUTHORITIES PURSUANT TO EPA'S SUPERFUND DEFERRAL POLICY]
The site about which you have inquired, [site name], is a site that falls under the federal
Superfund program, but for which EPA does not have the day-to-day responsibility. Specifi-
cally, the [site name] site is not proposed for or listed on the NPL. EPA has agreed not to
propose or list the [site name] site on the NPL while the state of [name of state] addresses the
environmental conditions at the property under its own state authorities. While the [site name]
cleanup is being conducted, EPA intends to act in accordance with "Guidance on Deferral of
NPL Listing Determinations While States Oversee Response Actions" (OSWER Dir. 9375.6-
11, May 3, 1995). A copy of this guidance is enclosed for your review and should help you to
better understand EPA's role and intentions at sites for which activities are deferred to state
authorities.
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Sample Comfort/Status Letters
Sample No Previous Superfund Interest Letter
Addressee
Re: [Insert name or description of property/site]
Dear [Insert name of party]:
I am writing in response to your letter dated concerning the property referenced
above. My response is based upon the facts presently known to the U.S. Environmental
Protection Agency (EPA) and is provided solely for informational purposes.
The federal Superfund Program, established to cleanup hazardous waste sites, is adminis-
tered by EPA in cooperation with individual states and local and tribal governments. Sites are
discovered by citizens, businesses, and local, state or federal agencies. When a potential
hazardous waste site is reported, EPA records the available information in its database, the
Comprehensive Environmental Response, Compensation, and Liability Information System
(CERCLIS). [NOTE: if a region practices pre-CERCLIS screening procedures, please include
language indicating that the procedures exists, whether or not the property is in the process of
being "pre-screened", and what this means to the inquirer. Adjustments may be needed to the
sample language contained in this letter.] The fact that a site is listed in CERCLIS, however,
does not mean that an EPA response action will occur at the site or that ownership or operation
of the site is restricted or may be associated with liability. The fact that a property is not listed
in CERCLIS does mean that EPA is not currently planning to take any action under the federal
Superfund program to evaluate the site for inclusion on the National Priorities List (NPL) or to
conduct removal or remediation activities.
The above-referenced property was not identified in a search of the active and archived
records in the CERCLIS database. Please note that its absence from CERCLIS does not
represent a finding that there are no environmental conditions at this property that require
action or that are being addressed under another federal or state program. The absence of the
property from CERCLIS means that, at this time, EPA is not aware of any information
indicating that there has been a release or threat of release of hazardous substances at or from
the facility that needs to be assessed by the federal Superfund program and that no such
assessment has been performed by EPA in the past. I encourage you to contact [insert name of
state or local agency] to determine if they have information regarding the property and its
environmental condition. [Regions also are encouraged to check with other program offices to
determine whether EPA is addressing this site under another statute such as RCRA].
If you would like more comprehensive information on current or historical CERCLIS data
or to request an additional search, please contact the National Technical Information Service
(NTIS), a publishing clearinghouse for government information. The address is: U.S.
Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161 (telephone: (703)
487-4650; fax: (703) 321-8547.) CERCLIS information is also avaliable on the Internet at
http ://www.epa. gov/superfund/index.html#Products. Should you have any further questions
about Superfund, please feel free to contact me at [insert phone number/address.]
Sincerely,
Regional Contact
cc: State contact
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Sample No Current Superfund Interest Letter
Addressee
Re: [Insert name or description of property]
Dear [Insert name of party]:
I am writing in response to your letter dated concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA) and is provided solely for informational purposes. For the reasons
stated below, EPA does not presently contemplate additional Superfund action for this property.
In response to growing concern over health and environmental risks posed by hazardous
waste sites, Congress enacted the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (CERCLA), establishing the Superfund program to clean up
these sites. The Superfund program is implemented by EPA in cooperation with individual
states and local and tribal governments. Sites are discovered by citizens, businesses, and local,
state, or federal agencies. After a potential hazardous waste site is reported to EPA, the
available information is recorded in the Comprehensive Environmental Response and Liability
Information System (CERCLIS), EPA's data management system for Superfund. Sites are
added to CERCLIS when EPA believes that there may be contamination that warrants action
under Superfund.
I. [FOR ARCHIVED SITES]
If, after an initial investigation, EPA determines that the contamination does not warrant
Superfund action, or if an appropriate Superfund response action has been completed, EPA will
archive that site from CERCLIS. This means that EPA believes no further federal response is
appropriate. Archived sites may be returned to the CERCLIS site inventory if new information
necessitating further Superfund consideration is discovered.
EPA has archived the above-referenced property from the CERCLIS site inventory because
[choose one of the following (a, b, or c) to complete the sentence]
[a.], following site evaluation activities, EPA determined that either no contamination was
found or conditions at the property did not warrant further federal Superfund involvement.
[b.] a federal removal action was completed and no further Superfund action is planned for
this property.
[c.] environmental conditions at the property are subject to requirements of [RCRA, UST,
OPA, etc.], however, no further interest under the federal Superfund program is warranted. For
further information concerning these requirements, please contact [name and telephone
number].
[Add to previous sentence] EPA, therefore, anticipates no need to take additional Superfund
enforcement, investigatory, cost recovery, or cleanup action at this archived site unless new
information warranting further Superfund consideration or conditions not previously known to
EPA regarding the site are discovered. EPA will maintain a dialogue with the states and will
continue to refer archived sites to the states for their review and consideration. You may want
to contact [insert state contact, address and telephone number] for further information.
II. [FOR PARTIAL OR FULL DELETIONS FROM NPL OR FOR A SITE BOUND-
ARY SITUATION]
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CERCLIS does not describe sites in precise geographical terms primarily because the
boundaries of the contamination and available information on those boundaries can be
expected to change over time. Once enough information regarding the nature and extent
of the release of the hazardous substances is gathered, EPA can more accurately delineate
the boundaries of a site. [Choose either (a), (b) or (c)].
(a) [If the property was included in a partial deletion from the NPL]
The above-referenced property [is/appears to be] situated within the [name of NPL site]
which is included on EPA's list of high priority hazardous waste CERCLIS sites known as
the National Priorities List (NPL). EPA, however, has determined that no further
investigatory or cleanup action is appropriate at the property under the federal Superfund
program. With the [insert State Agency] concurrence, EPA has decided to delete the
portion of the NPL site which contains the above-referenced property in accordance with
the Agency's A Procedures for Partial Deletions at NPL Sites" (OERR Directive Number
9320.2-11'. August 30. 1996).
(b) [If the property is contained within the NPL site or is defined as the NPL site and
the site has been deleted from the NPL]
The identified property [is/appears to be] [select one: situated within the defined
geographical borders of the [name of NPL site] or defined as the [name of the NPL site]]
which is included on EPA's list of high priority hazardous waste CERCLIS sites known as
the National Priorities List (NPL). EPA, however, has determined that no further
investigatory or cleanup action is appropriate at the property. In consultation with the
[insert State Agency], EPA has decided to delete this property from the NPL in accordance
with "Deletion from the NPL" 40CFR 300.425(e).
(c) [If the property is not part of the CERCLIS site but is nearby]
The above-referenced property is located [near or adjacent to] the [name of CERCLIS
Site], At this time, [statement as to the status of the site at present time: e.g., preliminary
assessment, site investigation, removal, remedial investigation or feasibility study is
underway or is completed]. Based upon available information, the property is not
presently considered by EPA to be a part of the [name of the CERCLIS site],
[Add to end of paragraph (a), (b), or (c)]
EPA, therefore, anticipates no need to take [any/additional] [Superfund enforcement-
include if PRP search and cost recovery are complete] investigatory or cleanup action at
this property unless new information warranting further Superfund consideration or
conditions not previously known to EPA regarding the property are discovered. You may
want to contact [insert state agency information] for further information. [If appropriate,
enclose a copy of the fact sheet on the CERCLIS site],
III. [IF ADMINISTRATIVE RECORD HAS BEEN COMPILED]
EPA has compiled an administrative record for the [name of CERCLIS or NPL Site]
which provides information on the nature and extent of the contamination found at the
site. This record is available at EPA Region — and at [location nearby to the site].
If you have any additional questions, or wish to discuss this information, please feel
free to contact [insert EPA contact and address].
Sincerely yours,
Regional Contact
cc: State contact
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Sample Federal Superfund Interest Letter
Addressee
Re: [insert name or description of property/site] [COMMENT1]
Dear [Insert name of party]:
I am writing in response to your letter dated concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA) and is provided solely for informational purposes.
In response to growing concern over health and environmental risks posed by hazardous
waste sites, Congress passed the Comprehensive Environmental Response Compensation and
Liability Act (CERCLA) and established the Superfund program to clean up these sites. The
Superfund program is implemented by EPA in cooperation with individual states and local and
tribal governments. Sites are discovered by citizens, businesses, and local, state and federal
agencies. After a potential hazardous waste site is reported to EPA, the site-specific
information is recorded in the Superfund database, the Comprehensive Environmental
Response and Liability Information System (CERCLIS). Sites are added to CERCLIS when
EPA believes that there may be contamination that warrants action under Superfund.
EPA initially screens a potential hazardous waste site to determine what type of action, if
any, is necessary. The Superfund program may then perform a preliminary assessment and site
investigation to determine whether contamination at a property is likely to require a federal
cleanup response, an evaluation to determine if a short term response action to eliminate or
reduce contamination is needed, and add the site to EPA's list of high priority hazardous waste
sites known as the National Priorities List (NPL).
EPA is examining [and/or addressing] the property referenced above in connection with the
[insert name of CERCLIS/NPL site] under the authority of CERCLA. [Insert appropriate
paragraphs from Sections I and/or II below. Use III for requests regarding the applicability of
a specific policy. Section IV represents the closing paragraph for all the Federal Superfund
Interest letters].
I. STATUS OF THE IDENTIFIED PROPERTY:
a. The above-referenced property is presently part of [or is] the [insert name of site.]
[Add paragraph from Section II for further information concerning the site.]
b. The above-referenced property may be part of the [insert name of site.] [Add
paragraph from Section II for further information concerning the site ]
II. STATUS OF EPA ACTIVITIES
a. The site has been placed in the Comprehensive Environmental Response,
Compensation and Liability Information System ("CERCLIS") site inventory, but no studies or
investigations have been performed to date. Accordingly, EPA has not developed sufficient
information relating to the nature and extent of contamination to presently determine whether
further federal action is appropriate under Superfund. Additionally, EPA has not yet
determined which properties may be considered part of the site.
b. A Superfund site evaluation is planned at the [insert name of site] to investigate
possible contamination, and where it may be located. Accordingly, EPA has not yet deter-
mined which properties may be considered part of the [insert name of site.] [Add description
of site evaluation activity or attach relevant documents, if available.]
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c. A Superfund site evaluation activity is underway at the [insert name of site] to
investigate possible contamination, and where it may be located. Accordingly, EPA has not yet
determined which properties may be considered part of the [insert name of site.] [Add
description of site evaluation activity or attach relevant documents, if available.]
d. The [insert name of site] has been proposed to [or placed on] the Superfund
National Priorities List ("NPL"). [Refer to and/or attach Federal Register notice.] The
description of [insert name of site] contains EPA's preliminary evaluation of which properties
are affected, although the actual borders of the Superfund site could change based on further
information regarding the extent of contamination and appropriate remedy.
e. A Superfund Remedial Investigation/Feasibility Study (RI/FS) is planned at [insert
name of site.] [Add description of RI/FS and ensuing activities or attach relevant documents, if
available].
f. A Superfund Remedial Investigation/Feasibility Study (RI/FS) is underway at
[insert name of site.] [Add description of RI/FS and ensuing activities or attach relevant
documents, if available].
g. A Superfund Remedial Investigation/Feasibility Study (RI/FS) has been completed
at [insert name of site.] [Add description of RI/FS and ensuing activities or attach relevant
documents, if available].
h. EPA is planning a Superfund Remedial Design/Remedial Action (RD/RA) at [insert
name of site.] [Insert pertinent information such as a description of the ROD and RD/RA, such
as date of issuance of the ROD, schedule for cleanup; Fund lead or PRP implementation,
cleanup progress to date; a schedule for future cleanup, especially a final completion date,
cleanup levels to be achieved, and anticipated future land use of the Site, or attach relevant
informational documents].
i. EPA has commenced a Superfund Remedial Design/Remedial Action (RD/RA) at
[insert name of site.] [Insert pertinent information such as a description of the ROD and RD/
RA, such as date of issuance of the ROD, schedule for cleanup; Fund lead or PRP implementa-
tion, cleanup progress to date; a schedule for future cleanup, especially a final completion
date, cleanup levels to be achieved, and anticipated future land use of the Site, or attach
relevant informational documents].
j. Superfund Remedial Design/Remedial Action (RD/RA) has been completed at
insert name of site.] [If possible provide information on cleanup achievements, whether it was
PRP or Fund-lead, etc., or attach relevant informational documents, if available] A Five-year
Review will [will not] be necessary at [insert name of site.] [Also, describe status with respect
to deletion from the NPL.]
k. A removal action is planned at [insert name of site.] [provide information on
cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene
Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents,
if available.]
1. A removal action is ongoing at [insert name of site.] [provide information on
cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene
Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents,
if available.]
m. A removal action has been completed at [insert name of site.] [provide information
on cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene
Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents,
if available.]
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III. FOR PARTIES OR SITES COVERED BY AN EPA POLICY/STATUTE/REGULA-
TION
Dear [Insert name of party]:
I am writing in response to your letter dated concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA).
As you may know, the above-referenced property is located within or near the [insert name
of CERCLIS site.] EPA is currently taking [insert description of any action that EPA is taking
or plans to take and any contamination problem.]
[Choose either paragraph [a] or [b]]:
[a. For situations when a party provides information showing that 1) a project found to be
in the public interest is hindered or the value of a property is affected by the potential for
Superfund liability, and 2) there is no other mechanism available to adequately address the
party's concerns.]
The [insert policy citation/statutory/regulatory provision], provides that EPA, in an exercise
of its enforcement discretion, will not take an enforcement action against parties who meet the
conditions and criteria described in the [insert policy/statute/regulation]. Based upon the
information currently available to EPA, EPA believes that the [policy/statutory/regulatory
provision] applies to [you/your] situation. I am enclosing a copy of the [policy/statutory or
regulatory provision and fact sheet, if appropriate] for your review.
[b. For situations when a party does not provide information showing that 1) a project
found to be in the public interest is hindered or the value of a property is affected by the
potential for Superfund liability, and 2) there is no other mechanism available to adequately
address the party's concerns, attach the appropriate policy/statutory or regulatory language and
insert the following language]:
The [insert policy citation/statutory/regulatory provision], provides that EPA, in an exercise
of its enforcement discretion, will not take an enforcement action against parties who meet the
conditions and criteria described in the [insert policy/statute/regulation]. [EPA currently does
not have enough information available to determine whether the [insert policy/statutory/
regulatory citation] applies to your situation OR EPA, based upon the current information
available, believes that you/your circumstances do not meet the criteria/provisions of the
[policy/statute/regulation]. I, however, have enclosed a copy of the [policy/statutory or
regulatory language] for your own review and determination of its applicability to you [or your
situation].
IV. CLOSING PARAGRAPH
EPA hopes that the above information is useful to you. [Optional—In addition, we have
included a copy of our latest fact sheet for the (insert name of site.)] Further, we direct your
attention to the [insert location of site local records repository] at which EPA has placed a
copy of the Administrative Record for this site. [Include for section III letters only: This letter
is provided solely for informational purposes and does not provide a release from CERCLA
liability.] If you have any questions, or wish to discuss this letter, please feel free to contact
[insert EPA contact and address].
Sincerely,
Regional Contact
Enclosure
196
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Sample State Action Letter
Addressee
Re: [Insert name or description of site/property]
Dear [Insert name of party]:
I am writing in response to your letter dated concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA) and is provided solely for informational purposes.
The problem of investigating, responding to, and cleaning property contaminated by
hazardous substances is a complex one. In an effort to maximize resources and ensure timely
responses, EPA and the states work together in responding to properties posing threats of
environmental contamination. Although the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA, also known as "Superfund") is a federal law that
establishes a federal program, the law also envisions and provides for state involvement at sites
handled under the Superfund program. CERCLA explicitly describes scenarios under which a
state may have a significant and prominent role in site activities.
I. [INSERT THIS SECTION FOR SITES DESIGNATED STATE-LEAD IN CERCLIS]
The site about which you have inquired, [site name], is a site that falls under the federal
Superfund program, but has been designated a state-lead. A state-lead designation means that
although the site remains in EPA's inventory of sites and may be on EPA's list of highest
priority sites, the National Priorities List (NPL), implementing responsibilities to investigate
and cleanup that site rest with the state of [insert name of state]. Specifically, [insert name of
state] is responsible for the day-to-day activities at the site and will ultimately recommend the
cleanup for the site. EPA's role is to review some of [insert name of state]'s milestone
documents, if appropriate, provide technical assistance if needed, and, in most cases, approve
the final cleanup method recommended by the state. The state and EPA work together closely,
pursuant to the terms of a Memorandum of Agreement (MO A) to ensure that site responses are
conducted in a timely manner and that interested parties are included in site activities.
Because EPA's day-to-day role at the [insert name of site] is somewhat limited, you should
check with the [your state or state's environmental program] for more detailed information on
site activities, [insert name of state] is best able to provide you with detailed information
about the site and public documents regarding site activity. [Regions should include the state
RPM name and number, or at least the state's applicable department name and number].
II. [INSERT THIS SECTION FOR SITES DESIGNATED ADEFERRED TO STATE
AUTHORITIES PURSUANT TO EPA'S SUPERFUND DEFERRAL POLICY]
The site about which you have inquired, [site name], is a site that falls under the federal
Superfund program, but for which EPA does not have the day-to-day responsibility. Specifi-
cally, the [site name] site is not proposed for or listed on the NPL. EPA has agreed not to
propose or list the [site name] site on the NPL while the state of [name of state] addresses the
environmental conditions at the property under its own state authorities. While the [site name]
cleanup is being conducted, EPA intends to act in accordance with "Guidance on Deferral of
NPL Listing Determinations While States Oversee Response Actions" (OSWER Dir. 9375.6-
11, May 3, 1995). A copy of this guidance is enclosed for your review and should help you to
better understand EPA's role and intentions at sites for which activities are deferred to state
authorities.
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III. [INSERT FOR A SITE DESIGNATED "DEFERRED" THAT NOW HAS BEEN
ARCHIVED]
The conditions at the above-referenced property were addressed by [name of state] pursuant
to EPA's "Guidance on Deferral of NPL Listing Determinations While States Oversee
Response Actions" (OSWER Dir. 9375.6-11, May 3, 1995). Upon completion of cleanup
activities at the [site name], the property has been removed from EPA's inventory of hazardous
waste sites, the Comprehensive Environmental Response, Compensation, and Liability
Information System (CERCLIS). Consistent with EPA's state deferral guidance, EPA does not
intend to further consider the property for listing on the NPL [or to take additional Superfund
enforcement, investigatory, cost recovery, or clean up action at the property] unless EPA
receives new information about site conditions that warrants reconsideration.
A copy of EPA's "A Guidance on Deferral of NPL Listing Determinations While States
Oversee Response Actions" is enclosed for your review, so that you may better understand the
nature of EPA's role at the [site name]. For detailed information about site activities and
conditions, you may wish to contact [insert name of state or state's environmental department],
the agency responsible for overseeing activities on the property.
IV. [INSERT FOR A SITE ADDRESSED UNDER A STATE VCP THAT HAS AN MOA
IN PLACE]
The site about which you have inquired, [site name], is a site contained in EPA's inventory
of hazardous waste sites, the Comprehensive Environmental Response, Compensation, and
Liability Information System. The [site name] site is not, however, proposed for or listed on
EPA's list of highest priority sites, the National Priorities List (NPL). EPA and the state of
[insert name of state] have agreed, pursuant to a memorandum of agreement (MOA) between
the two agencies, to place the site under the authorities of [insert name of state]'s Voluntary
Cleanup Program. For specific details regarding the activities at [site name] or the MOA, you
may wish to contact the [state name or department responsible for implementing the MOA].
If you have any additional questions, or wish to discuss this information, please feel free to
contact [insert EPA contact and address].
Sincerely yours,
Regional Contact
cc: State contact
[COMMENT 1](Insert name of Site and identification of property identified in the initial
request letter)
[COMMENT2]Select the following paragraph(s) under (A) which apply. Add property-
specific information as appropriate.
[COMMENT3] [If appropriate, attach and refer to depiction of Site to illustrate]
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