SFTF Recommendation No. 23: Ensure Timely Use of Site-Specific Tools When Needed and Appropriate to Address Liability Concerns at Contaminated Sites. (Goal 3/Strategy 2).

Date of Event: June 13, 2018.

The goal of this recommendation is to streamline the process, and therefore the timeline, between the initial interest of a party in purchasing, cleaning up, reusing, and redeveloping a contaminated site and providing the appropriate tool, if needed, to ensure the completion of the cleanup and redevelopment project. The first step in the process begins in the Region with the identification of cleanup and liability issues that will inform the Region and the purchaser of the appropriate tool(s) that are needed to address those issues. Information on the listening session series.

On this page:

• Overview of Session Topic and Issues
• Who Should Attend
• Questions to Session Participants for Verbal and Written Remarks
• Presenter
• Information Relevant to the Listening Session

Overview of Session Topic and Issues

Beginning in the 1990s, EPA entered into prospective purchaser agreements, with parties interested in redeveloping contaminated Superfund sites. The prospective purchaser agreements provided certainty to the parties in exchange for consideration in the form of cash payments to cover costs EPA had spent at a site or costs EPA would incur while overseeing future cleanup work. The policy for issuing prospective purchaser agreements changed with the passage of the 2002 Brownfield Amendments to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, commonly referred to as Superfund) which codified much of the Agency’s work using prospective purchaser agreements. The statutory changes made the liability protections self-implementing for the purchase and redevelopment of contaminated property if an interested party qualified as a bona fide prospective purchaser under CERCLA §101(40) and §107(r). After the 2002 amendments, only on rare occasions did EPA issue a prospective purchaser agreement. However, over time, EPA realized that cleanup work created uncertainties for bona fide prospective purchasers that were not necessarily contemplated in the 2002 amendments. To address this need, EPA issued its model Settlement Agreement and Order on Consent for Removal Actions by Bona Fide Prospective Purchaser in 2006.

EPA has continued to enter into prospective purchaser agreements and bona fide prospective purchaser removal work agreements as appropriate. Streamlining the process of increasing certainty for non-liable third parties performing cleanup and addressing those needs with the appropriate tool in a timely fashion is a fundamental tenet of the Superfund Task Force Recommendations Report.

This listening session will focus on a checklist that is being developed as a result of the Task Force Report to help both the Regions and interested parties identify and address issues and challenges regarding certainty needed in the cleanup and redevelopment of contaminated sites. The checklist will provide a holistic but flexible approach for the Regions to respond to liability concerns in a timely manner. The checklist will cover generally the following areas regarding the purchase, cleanup and redevelopment of a contaminated site of federal interest:

• Information about the interested party as a bona fide prospective purchasers
• Site history and other relevant site information
• Need for a prospective purchaser agreement or bona fide prospective purchasers agreement or other tool
• Legal “consideration” provided by interested party for an agreement
• Community interest and perspective including sustainable development principles

Who Should Attend 

• Third party developers, lenders, financiers, and other industry representatives
• State and local officials involved in cleanup and redevelopment of contaminated sites by third parties, and
• Regional and Department of Justice personnel involved in cleanup and redevelopment of contaminated sites by third parties.

Top of Page

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 submissions, on the following questions and topics:

1. During the first meeting with EPA to discuss a potential project, what type of information do third parties want from EPA?
2. Other than the Agency’s current informational tools (revitalization handbook, factsheets, etc.,), what other general enforcement-related tools would be helpful to address questions when deciding whether to pursue a project on contaminated property?
3. Are there other steps that we should include in our checklist?

Presenter

• Phil Page (Office of Site Remediation Enforcement/Policy and Program Evaluation Division)

Information Relevant to the Listening Session

• Superfund Task Force website
• Superfund enforcement website
• Revitalization Handbook (2014 edition)
• Issuance of CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser (11/27/2006)
• Enforcement Discretion Guidance Regarding the Affiliation Language of CERCLA's Bona Fide Prospective Purchaser and Contiguous Property Owner Liability Protections (9/21/2011)
• Top 10 Questions to Ask When Buying a Superfund Site (May 2008)
• Revised Enforcement Guidance Regarding the Treatment of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provision (12/5/2012)

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

Top of Page