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Superfund Listening Session - Improving Comfort Letters to Address Superfund Liability Concerns

SFTF Recommendation No. 28: Provide Greater “Comfort” in Comfort/Status Letters (Goal 3/Strategy 3)

Date of Event: June 18, 2018.

The goal of this recommendation is to examine whether greater comfort in EPA’s comfort/status letters is possible and/or effective to alleviate the uncertainties arising under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly referred to as Superfund). Information on the listening session series.

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Overview of Session Topic and Issues

EPA recognizes the environmental, economic, and community benefits of cleaning up and reusing or redeveloping contaminated, potentially contaminated, and formerly contaminated Superfund properties. The Agency also understands that a party interested in acquiring an impacted property for reuse or redevelopment may be concerned about the uncertainties posed by potential liabilities and costs of cleaning up the existing contamination under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly referred to as Superfund). When these concerns may discourage a party from acquiring and redeveloping an impacted property, EPA may issue a Superfund comfort/status letter that communicates key information that the Agency has about the property’s conditions and its cleanup status, so a party can make a more informed decision regarding the purchase, lease, or redevelopment of the property.

Since 1996, EPA has issued comfort/status letter to interested parties. The 2002 amendments to CERCLA addressed many of the potential federal liability concerns by establishing statutory liability protections for certain landowners who are not responsible for a property’s contamination. However, despite the 2002 statutory protections, the cleanup and redevelopment of some impacted properties still may be hindered by a uncertainties posed by CERCLA’s cleanup requirements to identify, assess, and clean up waste. In 2015, EPA issued a revised policy on the issuance of Superfund comfort/status letters and three sample letters to address the most common inquiries received by the Agency regarding impacted properties.

Recommendation 28 of the Task Force Report outlines specific actions recommended to the Agency to provide greater comfort. Recommended actions include assessing what concerns are not being addressed in the current model sample comfort/status letters and identifying revisions to the model language, consistent with statutory and legal authorities, to address these concerns.

Comfort/status letters were developed to provide prospective purchasers and other parties with the information EPA has about a particular property, EPA’s intentions with respect to the property as of the date of the letter, and the potential liability protections. But are they working? Through this listening session, the Agency would like to hear feedback on the use of comfort/status letters and what kind of standard information we should include.

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Who Should Attend

This listening session is open to the public. Anyone interested in this issue is welcome to attend. The Agency would encourage, lenders and developers, along with local and tribal governments to consider providing us with information and feedback during this session.

Questions to Session Participants for Verbal and Written Remarks

The Agency would like participants of this listening session to focus their remarks, both verbal and written, on the following questions and topics:

  1. What type of standard language to be included in comfort/status letters would assist in securing funding from lenders for cleanup and redevelopment of Superfund sites?
  2. Are there concerns that are not being addressed by the current model comfort/status letter?

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  • Elisabeth Freed, Office of Site Remediation Enforcement, Policy and Program Evaluation Division
  • Casey Luckett Snyder, Remedial Project Manager, Superfund Division, Region 6

Information Relevant to the Listening Session

Visit Listening Sessions - Superfund Task Force Recommendations for more information on the series of eight listening sessions.

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