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Superfund Listening Session - Recommendation 31: CERCLA Landowner Liability Concerns Regarding State and Local Government Acquisitions

SFTF Recommendation No. 31: Develop New Local Government Guidance to Address Concerns Raised by the Landowner Liability Provisions Potentially Applicable to Local Governments (Goal 3/Strategy 4)

Date of Event: December 18, 2019.

The goal of SFTF Recommendation 31 is to develop a new guidance for use by the U.S. Environmental Protection Agency (EPA) personnel to address potential Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly referred to as Superfund) liability concerns of local governments that acquire contaminated property. The new guidance also may assist local governments by summarizing the requirements for CERCLA liability protections and the EPA enforcement discretion policies that may be applicable as they consider involvement at contaminated properties. 

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Overview of Session Topic and Issues

The EPA encourages the cleanup and productive reuse of contaminated properties by addressing CERCLA liability concerns and by using site-specific enforcement tools, consistent with EPA’s statutory obligations. Local governments play an integral role in facilitating the cleanup and reuse of contaminated properties. Although local governments may take advantage of the statutory liability protections provided for in CERCLA, these governments continue to raise potential liability concerns associated with the acquisition of contaminated property as a barrier to reuse.

The new guidance will update and supersede the Agency’s March 2011 fact sheet on “CERCLA Liability and Local Government Acquisitions and Other Activities” that also addressed potential CERCLA liability concerns of local governments when acquiring contaminated property. This new guidance will address the amendments to CERCLA § 101(20)(D), 42 U.S.C. § 9601(20)(D) by the Brownfields Utilization, Investment, and Local Development Act of 2018 (BUILD Act) which clarified and expanded the liability exemption for state and local governments.

Once finalized, the new guidance will be publicly available on the Agency’s website.

This listening session will highlight and raise awareness of the CERCLA liability protections and EPA enforcement discretion policies that may be applicable to certain acquisitions. It will also seek input from stakeholders on:

  • Circumstances that lead to state and local government acquisitions of contaminated property;
  • Site-specific activities taken by state and local governments following acquisition of contaminated properties subject to CERCLA;
  • Acquisition methods used by units of state and local governments, including land banks, redevelopment authorities, and other quasi-governmental entities and the CERCLA liability protections relied on in those circumstances;
  • CERCLA liability concerns of state and local governments when acquiring property through purchase, donation, or eminent domain; and
  • Approaches used to address CERCLA liability concerns to effectively transfer contaminated property between units of state and local government.

The EPA also is interested in receiving stakeholder input on its site-specific tools and approaches to address potential liability concerns of state and local governments. The EPA has successfully used comfort/status letters to clarify its intentions and intends to develop a model comfort/status letter tailored to local government acquisitions and potential liability concerns.

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Who Should Attend

  • EPA, the Department of Justice (DOJ), state, and local government employees involved with potentially contaminated property acquisition, cleanup, and revitalization,
  • EPA, state, and local government employees who work on contaminated site reuse issues that could involve CERCLA,
  • Community groups and non-profit organizations, including environmental justice groups, interested in effective Superfund cleanups and site revitalization,
  • Real estate investment consultants and investors, and
  • Private party representatives (attorneys and consultants) involved with the implementation of Superfund response actions.

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Questions to session participants for verbal and written remarks:

The Agency would like participants of this listening session to focus their verbal and written remarks on the following questions and topics. Participants may address one, some, or all of the questions below.

  • What are the circumstances and methods of contaminated property acquisition that create potential CERCLA liability concerns for local governments?
  • What site-specific activities do local governments engage in before, during, and after acquiring contaminated properties?
  • How do local governments manage potential liability and human health risks associated with those site-specific activities, specifically to avoid having caused or contributed to a release or threatened release under CERCLA?
  • Which CERCLA liability protections, and EPA guidance and/or site-specific tools are most effective in providing local governments with the most certainty and confidence when considering the acquisition of contaminated property?

NOTE: Once submitted, your written remarks cannot be edited or removed. Please keep in mind that all information obtained or submitted during a listening session may become public information. Do not submit electronically any information you consider confidential business information or other information whose disclosure is restricted by statute.

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  • Matthew Sander (OECA/Office of Site Remediation Enforcement/Policy and Program Evaluation Division)
  • Craig Boehr (OECA/OSRE/Policy and Program Evaluation Division)

Information and links to relevant information related to the listening session:

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

2018 Superfund Task Force Footer

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