Cover photo capturing revitalized area provided by U.S. EPA’s Region 8 Brownfields Program, The 

LEED Gold Northside Aztlan Community Center in Fort Collins, Colorado, is now home to a wide 

variety of classes, sports and events, with amenities such as a triple gymnasium, workout facilities, 

lounge, game room, computer lab, classrooms, and connections to the Poudre River Trail. Beyond its 

value as a community asset, the new Northside Aztlan Community Center is the first Leadership in 

Energy and Environmental Design (LEED) Gold certified community center in the United States. Visit 

http://www.epa.gov/superfund/programs/recycle/index.html for more information on Superfund 

Redevelopment. 

EPA Pub. No. 330-F-11-002 

Office of Site Remediation Enforcement/Office of Enforcement and Compliance Assurance 

U.S. Environmental Protection Agency 

March 2011 
Table of Contents 

Preface .....................................................................................................................................................iv
 

Commonly Used Acronyms and Abbreviations ...................................................................................v
 

Purpose and Use of This Handbook.....................................................................................................vi
 

I. Overview of CERCLA and RCRA .....................................................................................................1
 

A. CERCLA .......................................................................................................................................1 

1. General Information................................................................................................................1 

2. EPA’s Brownfields Program and the Brownfields Amendments............................................1 

B. RCRA............................................................................................................................................2 

II. Liability...............................................................................................................................................4
 

A. CERCLA Liability ..........................................................................................................................4 

B. RCRA Liability...............................................................................................................................5 

III.	 Statutory Protections and EPA Policies for the Cleanup, Reuse, and Revitalization of
 

Contaminated Sites...........................................................................................................................6
 

A. CERCLA Statutory Defenses and Liability Protections ................................................................6 

1. Bona Fide Prospective Purchasers........................................................................................7 

2. Owners of Property Impacted by Contamination from an Off-site Source (Contiguous 

Property Owners) ...................................................................................................................9 

i. Contaminated Aquifers ....................................................................................................9 

ii. Contiguous Property Owners.........................................................................................10 

3. Purchasers without Knowledge of Contamination ...............................................................10 

i. Third-Party Defense.......................................................................................................11
 

ii. Innocent Landowner Liability Protection........................................................................11 

4. Common Elements Guidance ..............................................................................................12 

B. State Response Programs..........................................................................................................14 

1. Voluntary Cleanup Programs ...............................................................................................14 

2. Memoranda of Agreement ...................................................................................................15 

3. Eligible Response Sites........................................................................................................15 

C. Local Government Liability Protections ......................................................................................15 

1. Involuntary Acquisition .........................................................................................................16 

2. Emergency Response..........................................................................................................16 

3. Land Banks ..........................................................................................................................17 

D. Lender Liability Protections.........................................................................................................17 

1. Lenders.................................................................................................................................18 

2. Local Governments and Lender Liability..............................................................................19 

3. Underground Storage Tank (UST) Lender Liability Rule .....................................................20 

E. Residential Property Owners ......................................................................................................21 

IV. Site-Specific EPA Tools to Address Status Liability Concerns, and/or Perceived Stigma .....22
 

A. Comfort/Status Letters................................................................................................................22 

1. Superfund Comfort/Status Letters........................................................................................22 

2. RCRA Comfort/Status Letters ..............................................................................................23 

3. Reasonable Steps Comfort Letter........................................................................................23 

4. Comfort Letters for National Priorities List Sites and Federally Owned Properties .............24 

B. Agreements.................................................................................................................................25 

1. Bona Fide Prospective Purchaser Work Agreements..........................................................25 

2. Prospective Purchaser Agreements and Prospective Lease Agreements ..........................25 

3. Windfall Lien Resolution.......................................................................................................27 

4. Contiguous Property Owner Assurance Letters and Settlements .......................................27 

C. Other Tools .................................................................................................................................27 

1. Ready for Reuse Determinations .........................................................................................28 

2. National Priorities List Deletion ............................................................................................28 

ii 
V.	 Other Considerations for Entities Seeking to Clean Up, Reuse, and Revitalize
 

Contaminated Property...................................................................................................................29
 

A. Long-Term Stewardship .............................................................................................................29 

B. Supplemental Environmental Projects (SEPs) ...........................................................................30 

C. OECA Guiding Principles............................................................................................................31 

1. Environmental Justice ..........................................................................................................31 

2. Public Participation...............................................................................................................33 

3. Financial Assurance.............................................................................................................34 

D. EPA Initiatives and Programs .....................................................................................................34 

1. ER3 - Environmentally Responsible Redevelopment and Reuse Initiative .........................35 

2. Brownfields Grants and State/Tribal Funding ......................................................................35 

3. Superfund Redevelopment Initiative ....................................................................................36 

4. RCRA Brownfields Prevention Initiative...............................................................................36 

5. RE-Powering America’s Land Initiative................................................................................37
 

Table of Contents For Handbook Text Boxes 

Disclaimers...................................................................................................................................................vii 

Removal vs. Remedial Action ....................................................................................................................... 1 

Components of the RCRA Corrective Action Program ................................................................................. 5 

BFPP Protections Apply to Tenants.............................................................................................................. 7 

Windfall Lien Guidance and Settlements ...................................................................................................... 8 

Threshold Criteria for EPA’s Contaminated Aquifer Guidance..................................................................... 9 

All Appropriate Inquiries.............................................................................................................................. 13 

Affiliation...................................................................................................................................................... 13 

Meaning of “Involuntary Acquisition”........................................................................................................... 16 

States with Land Bank Legislation .............................................................................................................. 17 

“Participation in Management” Defined ...................................................................................................... 19 

Threshold Criteria for Residential Property Owners Under EPA Guidance................................................ 21 

Evaluation Criteria for Superfund Comfort/Status Letters........................................................................... 22 

Private Party Tools...................................................................................................................................... 23 

Differences Between BFPP Liability Protection and PPAs ......................................................................... 26 

Examples of Engineered Controls .............................................................................................................. 29 

Examples of Institutional Controls............................................................................................................... 30 

Environmental Justice................................................................................................................................. 32 

Community Engagement Initiative: Public Participation in the Cleanup Process....................................... 33 

Office of Brownfields and Land Revitalization Grants and Funding Web Access ...................................... 36 

Appendices 

Appendix A Common Elements Guidance 

Appendix B Top 10 Questions to Ask Before Buying a Superfund Site 

Appendix C CERCLA Liability and Local Government Acquisitions and Other Activities 

Appendix D Brownfields Enforcement and Land Revitalization Policy and Guidance Documents 

Appendix E Contact Information 

iii 
Preface 

The U.S. Environmental Protection Agency’s (EPA) Office of Site Remediation Enforcement 

(OSRE) implements the enforcement of EPA’s hazardous waste cleanup laws, including the 

Comprehensive Environmental Response, Compensation, and Liability Act (also known as 

CERCLA or Superfund), the corrective action and underground storage tank cleanup provisions 

of the Resource Conservation and Recovery Act (RCRA), and the Oil Pollution Act (OPA). The 

main objective of the cleanup enforcement program is to ensure prompt site cleanup and the 

participation of liable parties in performing and paying for cleanups in a manner that ensures 

protection of human health and the environment. 

Congress passed the Small Business Liability Relief and Brownfields Revitalization Act of 2002 

(Public Law 107-118) (hereinafter, the Brownfields Amendments), which modified Superfund 

and further promoted the cleanup, reuse, and redevelopment of sites by addressing liability 

concerns associated with unused or under-utilized property. One important mission of OSRE is 

to provide guidance on the liability protections available to property owners and other parties as 

a result of the Brownfields Amendments and other federal laws governing contamination 

cleanup. OSRE has played, and continues to play, a key role in the reuse and revitalization of 

contaminated sites, including brownfield sites, by providing guidance and developing tools that 

will assist parties seeking to clean up, reuse, or redevelop contaminated properties. 

OSRE is committed to encouraging site reuse because it helps EPA achieve enforcement and 

environmental protection goals, such as long-term site stewardship and sustainable land use 

planning. Often, reuse can support these enforcement and environmental protection goals and 

help remove obstacles to cleanups and revitalization. Over the years, OSRE has highlighted 

these efforts through a series of handbooks, most recently Revitalizing Contaminated Sites: 

Addressing Liability Concerns (2008) and the Brownfields Handbook: How to Manage Federal 

Environmental Liability Risks (2002). This 2011 edition of the handbook, Revitalizing 

Contaminated Sites: Addressing Liability Concerns (The Revitalization Handbook) is a 

compilation of enforcement tools, guidance, and policy documents that are available to help 

promote the cleanup and revitalization of contaminated sites. 

While OSRE intends this handbook to be useful for years to come, it recognizes that 

developments in the brownfields area will yield new policy and guidance documents. 

Please refer to EPA’s Brownfields and Revitalization website 

(http://www.epa.gov/compliance/cleanup/revitalization) for new and updated documents. 

OSRE looks forward to the challenge of protecting human health and the environment through 

the cleanup and subsequent revitalization of contaminated property. 

iv 
Commonly Used Acronyms and Abbreviations 

AAI 

BFPP 

Brownfields Amendments 

CERCLA 

CPO 

DOJ 

ER3 

HSTF 

ILO 

Lender Liability Act 

MOA 

MOU 

NCP 

NPL 

OBLR 

OECA 

OPA 

OSRE 

O&M 

PLA 

PPA 

PRP 

RCRA 

RfR 

SEP 

SRI 

TSD 

UST 

VCP 

All Appropriate Inquiries 

Bona Fide Prospective Purchaser 

Small Business Liability Relief and Brownfields Revitalization 

Act of 2002 

Comprehensive Environmental Response, Compensation, and 

Liability Act 

Contiguous Property Owner 

United States Department of Justice 

Environmentally Responsible Redevelopment and Reuse 

Initiative 

Hazardous Substance Trust Fund 

Innocent Landowner 

Asset Conservation, Lender Liability, and Deposit Insurance 

Protection Act of 1996 

Memorandum of Agreement 

Memorandum of Understanding 

National Contingency Plan 

National Priorities List 

Office of Brownfields and Land Revitalization 

Office of Enforcement and Compliance Assurance 

Oil Pollution Act 

Office of Site Remediation Enforcement 

Operation and Maintenance 

Prospective Lease Agreement 

Prospective Purchaser Agreement 

Potentially Responsible Party 

Resource Conservation and Recovery Act 

Ready for Reuse 

Supplemental Environmental Project 

Superfund Redevelopment Initiative 

Treatment, Storage, and Disposal 

Underground Storage Tank 

Voluntary Cleanup Program 

v 
Purpose and Use of This Handbook 

This handbook summarizes the statutory and regulatory provisions of the Comprehensive 

Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq. 

(CERCLA, commonly known as Superfund) and the Resource Conservation and Recovery Act, 

42 U.S.C. §§ 6901 et seq. (RCRA), as well as the policy and guidance documents most useful in 

managing environmental cleanup liability risks associated with the revitalization of contaminated 

sites. It is designed for use by parties involved in the assessment, cleanup, and revitalization of 

sites, and provides a basic description of the tools parties can use to address liability concerns. 

There are a number of things a party may want to consider before revitalizing contaminated 

property. For example: 

$	 A party should determine the end use of the property, and should collect and consider 

information on past uses and potential contamination. 

$	 If a party intends to purchase the property, it should consider whether it needs to conduct 

all appropriate inquiries to take advantage of CERCLA liability protections, such as the 

bona fide prospective purchaser protection. 

$	 Should the party need information or have concerns about cleanup or liability protection, 

it should identify the most appropriate level of government to consult. 

$	 A party may want to employ private mechanisms such as indemnification or insurance 

tools (see Tools Between Private Parties text box), or work at the state level and make 

use of existing state tools, programs, or incentives such as the state’s voluntary cleanup 

program. If contamination on the property warrants EPA’s attention under CERCLA or 

RCRA, a party should first determine if EPA or the state is taking or plans to take action 

at the property. After determining where the property fits in the federal or state cleanup 

pipeline, a party may use this handbook to help decide which tool or tools are most 

appropriate for addressing potential CERCLA or RCRA liability risks. 

Both CERCLA and RCRA are designed to protect human health and the environment from the 

dangers of improperly disposed hazardous substances, though these two programs address 

different parts of the hazardous waste problem. The RCRA programs focus on how wastes 

should be managed to avoid potential threats to human health and the environment. CERCLA, on 

the other hand, applies primarily when mismanagement has already occurred, resulting in 

releases of hazardous substances to the environment. The two laws overlap in significant 

respects, however; for example, both CERCLA and RCRA have cleanup authorities that may 

apply to certain violations of waste management standards. 

Though many prospective purchasers, developers, and lenders hesitate to get involved with 

contaminated properties because they fear that they might be held liable under CERCLA or 

RCRA, many contaminated properties may never receive EPA’s attention under CERCLA, 

RCRA, or any other federal law. Accordingly, parties’ fears of federal involvement -- to the 

extent that they impact an entity’s decision to get involved with a brownfield site -- rather than 

actual EPA practice are often the primary obstacles to the redevelopment and reuse of 

brownfields. EPA hopes that this handbook will provide a better understanding of these laws and 

their implementation. 

vi 
 

DISCLAIMERS 

This document provides general information and guidance regarding facilitating reuse of 

properties. It does not address all information, factors, or considerations that may be relevant. 

This document is not legally binding. The word “should” and other similar terms used in this 

document are intended as general recommendations or suggestions that might be generally 

applicable or appropriate and should not be taken as providing legal, technical, financial, or other 

advice regarding a specific situation or set of circumstances. This document may be revised at any 

time without public notice. 

This document describes and summarizes statutory provisions, regulatory requirements, and 

policies. The document is not a substitute for these provisions, regulations, or policies, nor is it a 

regulation itself. In the event of a conflict between the discussion in this document and any 

statute, regulation, or policy, this document would not be controlling and cannot be relied upon to 

contradict or argue against any EPA position taken administratively or in court. It does not 

impose legally binding requirements on EPA or the regulated community, and might not apply to 

a particular situation based upon the specific circumstances. This document does not modify or 

supersede any existing EPA guidance document or affect the Agency’s enforcement discretion in 

any way. 

vii 
I. Overview of CERCLA and RCRA 

A. CERCLA 

1. General Information 

In 1980, in response to public concern about abandoned hazardous waste sites such as Love 

Canal, Congress enacted the Comprehensive Environmental Response, Compensation, and 

Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq. CERCLA, commonly referred to as 

Superfund, authorizes the federal government to assess and/or clean up contaminated sites and 

provides authority for emergency response involving hazardous materials. 

CERCLA establishes a comprehensive liability scheme to hold certain categories of parties liable 

to conduct and/or pay for cleanup of such releases. EPA may exercise its response authority 

through removal or remedial actions. Remedial responses financed by the Hazardous Substance 

Trust Fund are undertaken only at sites on EPA’s National Priorities List (NPL). The National 

Contingency Plan (NCP), 40 C.F.R. Part 300, provides the “blueprint” for conducting removal 

and remedial actions under CERCLA. 

REMOVAL VS. REMEDIAL ACTION 

$	 A removal action generally is a short-term and/or emergency action that may be 

necessary to address a release or threat of release of a hazardous substance into the 

environment. CERCLA § 101(23). Removals may include adding security fencing, 

providing alternate water supplies, or temporarily evacuating or relocating a community. 

Depending on the amount of time available for planning, removal actions are classified as: 

1) emergency; 2) time-critical; and 3) non-time-critical. Typically, removal actions are 

limited to 12 months in duration or $2 million in response costs. CERCLA § 104(c)(1). 

$	 A remedial action generally addresses long-term threats to human health and the 

environment caused by more persistent contamination sources. CERCLA § 101(24). 

Remedial actions permanently and significantly reduce the risks associated with releases 

or threats of releases of hazardous substances that are serious but lack the time-criticality 

of a removal action. 

2. EPA’s Brownfields Program and the Brownfields Amendments 

There are many different types of contaminated or potentially contaminated property in the 

United States. Some may be “Superfund sites”-- sites where the federal government is, or plans 

to be, involved in cleanup efforts, many of which are listed on the NPL. Other properties may be 

“brownfields”-- properties where expansion, redevelopment, or reuse may be complicated by the 

presence (or potential presence) of contamination. Often, the federal government is not involved 

in cleanups at brownfield sites. Rather, state and tribal response programs play a significant role 

in cleaning up and helping to revitalize these sites. Other contaminated properties may be 

1 
 

“RCRA brownfields” -- RCRA facilities where reuse or redevelopment is slowed due to real or 

perceived concerns about requirements imposed by RCRA for actual or potential contamination. 

EPA launched the Brownfields Initiative in the mid-1990s and developed guidance and tools to 

help further the Initiative’s goals to empower states, communities, and other stakeholders to 

assess, safely clean up, sustainably reuse, and prevent future brownfield sites. 

Congress codified many of EPA’s Brownfields Initiative practices, policies, and guidances when 

it passed the Small Business Liability Relief and Brownfields Revitalization Act of 2002 (Public 

Law 107-118) (Brownfields Amendments). The Brownfields Amendments define a brownfield 

site as “real property, the expansion, redevelopment, or reuse of which may be complicated by 

the presence or potential presence of a hazardous substance, pollutant, or contaminant.” 

CERCLA § 101(39). The Brownfields Amendments also include provisions to address the 

liability concerns of certain landowners, provide statutory authority for EPA’s brownfields grant 

program, enable EPA to obtain a windfall lien on certain properties owned by bona fide 

prospective purchasers, create a bar to EPA enforcement at certain brownfields sites being 

addressed under state response programs, and authorize EPA to provide grants to states and 

tribes to develop response programs. 

As noted above, under CERCLA’s liability scheme, the owner of a contaminated property is 

responsible for the property’s cleanup based solely on its ownership status, even if the owner did 

not contribute to the contamination. As a result, entities that want to purchase contaminated 

properties are often concerned about incurring CERCLA liability once they acquire the property. 

To address these liability concerns, the Brownfields Amendments included new or clarified 

liability protections for landowners who acquire property and continue to meet certain criteria 

after acquisition. The three landowner liability protections addressed in the Brownfields 

Amendments are for: 

$ Bona fide prospective purchasers (BFPPs); 

$ Contiguous property owners (CPOs); and 

$ Innocent landowners (ILOs). 

The CERCLA liability scheme and all these landowner liability protections and related cleanup 

enforcement policy and guidance are discussed in Section III. 

More information on the Superfund enforcement program is available on EPA’s website at 

http://www.epa.gov/compliance/cleanup/superfund/index.html. Information on the Superfund 

program is available at http://www.epa.gov/superfund. EPA also hosts a website specifically 

addressing brownfields issues at http://epa.gov/brownfields. 

B. RCRA 

In 1976, Congress enacted the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 

6901 et seq., which authorizes EPA to establish programs to regulate hazardous waste (Subtitle 

C), solid waste (Subtitle D), and underground storage tanks (Subtitle I). RCRA’s goals include: 

2 
$ Protecting human health and the environment from hazards posed by waste disposal; 

$ Conserving energy and natural resources through waste recycling and recovery; 

$ Reducing the amount of waste generated; and 

$ Ensuring that wastes are managed in an environmentally safe manner. 

Through RCRA Subtitle C, Congress gave EPA the authority to manage hazardous waste from 

“cradle to grave.” There are Subtitle C regulations for the generation, transportation, and 

treatment, storage, or disposal of hazardous waste. These regulations first identify the criteria to 

determine which solid wastes are hazardous, and then establish various requirements for the 

three categories of hazardous waste handlers: generators, transporters, and treatment, storage, or 

disposal facilities (TSDs). In addition, the Subtitle C regulations set technical standards for the 

design and safe operation of TSDs. These regulations for TSDs serve as the basis for developing 

and issuing permits, which TSDs are required to obtain. Unlike CERCLA, RCRA does not 

contain a bona fide prospective purchaser or similar liability protection. 

Subtitle I authorizes EPA to establish a regulatory program that includes technical requirements 

to prevent, detect, and clean up releases from underground storage tanks (UST). Tanks subject to 

Subtitle I may be found at a variety of locations, including convenience stores, service stations, 

small and large manufacturing facilities, and airports. Since the UST program is not part of 

RCRA Subtitle C, there are separate technical and administrative requirements, including 

notification, design and installation standards, and closure. 

3 
 

II. Liability 

This Chapter covers: 

$	 CERCLA Liability; and 

$	 RCRA Liability. 

A. CERCLA Liability 

CERCLA’s “polluter pays” liability scheme ensures that parties who have responsibility for 

contamination, often referred to as potentially responsible parties (PRPs), rather than the general 

public, pay for cleanups. As described in CERCLA § 107(a), the following categories of persons 

may be held liable for the costs or performance of a cleanup under CERCLA: 

(1) The current owner or operator of a facility; 

(2) An owner or operator at the time of disposal; 

(3) A person who arranged for the disposal or treatment of hazardous substances 

(“generator” or “arranger”); and 

(4) A person who accepted hazardous substances for transport and selected the site to 

which the substances were transported (“transporter”). 

Under CERCLA’s comprehensive liability scheme, a PRP’s liability for cleanup is: 

$	 Strict - A party is liable if it falls within one of the above categories in CERCLA § 

107(a) even if it did not act negligently or in bad faith. 

$	 Joint and several - If two or more parties are responsible for the contamination at a site, 

any one or more of the parties may be held liable for the entire cost of the cleanup, 

regardless of their share of the waste contributed, unless a party can show that the injury 

or harm at the site is divisible. 

$	 Retroactive - A party may be held liable even if the hazardous substance disposal 

occurred before CERCLA was enacted in 1980. 

Additionally, EPA has adopted an “enforcement first” policy throughout the Superfund cleanup 

process to compel those responsible for contaminated sites to take the lead in cleanup, thus 

conserving taxpayer money. Using the enforcement authorities provided by Congress, EPA may 

enter into settlements with or compel PRPs to implement a cleanup at a site where a release of 

hazardous substances has occurred. When EPA spends Fund monies to finance a removal or 

remedial action, EPA may then seek reimbursement from responsible parties. Private entities 

may also conduct cleanups and seek reimbursement of eligible response costs from PRPs. 

4 
 

B. RCRA Liability 

Under RCRA Subtitle C, EPA has developed a comprehensive program to manage solid and 

hazardous waste. Past and present activities at RCRA facilities have sometimes resulted in 

releases of hazardous waste and hazardous constituents into soil, ground water, surface water, 

and air. RCRA generally mandates that EPA require the investigation and cleanup, or 

remediation, of these releases at RCRA facilities. This cleanup process is known as “corrective 

action.” EPA possesses several corrective action authorities to compel cleanup. 

Owners/operators of facilities where releases have occurred are required to clean up 

contamination caused by the mismanagement of wastes. The box below displays the components 

of the corrective action process. Since the steps necessary to achieve cleanup at a facility will 

depend on site-specific conditions, the corrective action process is flexible. The components may 

occur in any order, and not every component is necessary to determine that no further action is 

required. 

COMPONENTS OF THE RCRA CORRECTIVE ACTION PROGRAM 

$ Initial Site Assessment (RCRA Facility Assessment); 

$ Release Assessment and Site Characterization (RCRA Facility Investigation); 

$ Interim Actions to control or abate ongoing risks to human health and the environment 

(Interim Measures); 

$ Evaluation of different remedial alternatives to remediate the site (Corrective Measures 

Study); 

$ Remedy selection for a thorough cleanup of the hazardous release (Statement of Basis); 

and 

$ Design, construction, operation, maintenance, and monitoring of the chosen remedy 

(Corrective Measures Implementation). 

States are an integral part of the RCRA program. EPA may approve a state’s or territory’s 

RCRA program to operate in lieu of EPA’s program. EPA generally approves a stateadministered RCRA action program if the state requirements are no less stringent than the 

federal requirements and the state has the ability to take adequate enforcement actions. In 

authorized states, facilities must comply with the authorized state requirements rather than the 

corresponding federal requirements. After authorization, both the state and EPA have the 

authority to enforce those requirements. 

Currently, 50 states and territories have been granted authority to implement the base, or initial, 

program, and 42 states and the territory of Guam are authorized to operate the corrective action 

program in lieu of EPA’s program. Owners and operators of corrective action sites in authorized 

states should also contact their state regulatory agency because the state program may have 

different or more stringent requirements than the federal RCRA corrective action program. 

More information on the RCRA state authorization program is available on EPA’s website at 

http://www.epa.gov/epawaste/laws-regs/state/index.htm. More information on the RCRA 

cleanup enforcement program is available on EPA’s website at 

http://www.epa.gov/compliance/cleanup/rcra/. 

5 
III. Statutory Protections and EPA Policies for the Cleanup, 

Reuse, and Revitalization of Contaminated Sites 

The Office of Site Remediation Enforcement (OSRE) in EPA’s Office of Enforcement and 

Compliance Assurance (OECA) is charged with enforcing CERCLA, RCRA corrective action, 

underground storage tank programs, and aspects of the Oil Pollution Act, 33 U.S.C. § 2701 et 

seq. (OPA). In this capacity, OSRE began to develop a comprehensive approach in the early 

1990s to define liability issues and provide appropriate liability relief under these statutes to 

assist with the redevelopment and revitalization of contaminated property. More specifically, 

OSRE began to develop guidance documents to explain its understanding of liability under these 

laws, as well as how and when EPA may exercise discretion to those who were interested in 

redeveloping and revitalizing contaminated sites. 

Partly in response to EPA’s efforts, Congress enacted the Brownfields Amendments, amending 

the Superfund statute to clarify certain landowner liability concerns and provide funding for 

grants for the assessment and cleanup of contaminated property. EPA continues to promote site 

cleanup by potentially responsible parties (PRPs) and private parties. EPA supports 

revitalization through the issuance of enforcement discretion guidance documents, model 

enforcement documents, responses to frequently asked questions, fact sheets, and other 

documents that provide liability guidance or relief to potential developers and owners of 

contaminated land. All these documents, along with all current Superfund enforcement and 

brownfields policy and guidance documents, are available on EPA’s website at 

http://cfpub.epa.gov/compliance/resources/policies/cleanup/superfund/. Those enforcement 

discretion documents that are relevant to revitalization are summarized in Appendix D of this 

handbook. 

More information on the Superfund enforcement program is available on EPA’s website at 

http://www.epa.gov/oecaerth/cleanup/superfund/index.html. Information on the Superfund 

program is available at http://www.epa.gov/superfund. 

A. Brownfields Amendments to CERCLA 

This Section covers: 

$ Bona Fide Prospective Purchaser; 

$ Contiguous Property Owners; 

$ Third-Party Defense; 

$ Innocent Landowner Liability; and 

$ Common Elements Guidance. 

6 
1. Bona Fide Prospective Purchasers 

The 2002 Brownfields Amendments created a new liability protection for a bona fide prospective 

purchaser (BFPP). Before the passage of the Brownfields Amendments, prospective purchasers 

of contaminated property could not avoid the liability associated with being the current owner if 

they purchased with knowledge of contamination, unless they entered into a prospective 

purchaser agreement (PPA) with EPA before acquisition that included covenants not to sue 

under CERCLA §§ 106 and 107. Now, however, as a result of the Brownfields Amendments, a 

party can achieve and maintain status as a BFPP without entering into a PPA with EPA, so long 

as that person meets the statutory criteria to assert the defense. A key advantage of the BFPP 

protection is that it is self-implementing and, therefore, EPA is not required to make 

determinations as to whether a party qualifies for BFPP status. 

BFPP PROTECTIONS APPLY TO TENANTS 

On January 14, 2009, EPA published its Enforcement Discretion Guidance Regarding the 

Applicability of the Bona Fide Prospective Purchaser Definition in CERCLA § 101(40) to Tenants. 

This guidance advises EPA regions on how to exercise enforcement discretion with regard to the 

BFPP provision. Because leasehold interests may play a critical role in facilitating the cleanup and 

reuse of brownfields and other contaminated properties, this guidance clarifies a tenant’s 

responsibilities with respect to BFPP status. The statute provides that tenants of BFPPs should be 

treated as having BFPP status. Further, EPA, on a site-specific basis, intends to exercise its 

enforcement discretion not to enforce against: 

$ A tenant whose lease gives sufficient “indicia of ownership” to be considered an “owner” and 

who meets the elements of §§ 101(40)(A)-(H) and 107(r)(1); and 

$ A tenant of an owner who has lost BFPP status, if the tenant meets BFPP requirements. 

This document is accessible on the internet at 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/bfpp-tenant-mem.pdf. 

The BFPP provision found in CERCLA § 107(r) dramatically changed the CERCLA liability 

landscape by providing a method to establish a defense to liability for disposal that occurred 

before acquisition. Section 107(r) protects from owner/operator liability a BFPP who acquires 

property after January 11, 2002, and meets the criteria in CERCLA § 101(40) and § 107(r). 

To successfully assert the innocent landowner defense, persons cannot know or have reason to 

know about the contamination on the property. Now persons may acquire property knowing, or 

having reason to know, of contamination on the property and not be liable under CERCLA as 

long as they meet the statutory criteria for the BFPP defense. 

BFPPs must perform “all appropriate inquiries” (AAI) before acquiring the property. BFPPs 

cannot otherwise be a PRP at the site or have a prohibited “affiliation” with a liable party at the 

site. 

7 
 

BFPPs must also satisfy additional obligations throughout the period of ownership: 

$	 Complying with land use restrictions and not impeding the effectiveness or integrity of 

institutional controls; 

$	 Exercising appropriate care with respect to hazardous substances found at the property, 

including, among other things, taking “reasonable steps” to stop any continuing release 

and to prevent any threatened future release; 

$	 Providing cooperation, assistance, and access; 

$	 Complying with information requests and administrative subpoenas; and 

$	 Providing legally required notices. CERCLA § 101(40). 

BFPPs also must not impede the performance of a response action or natural resource 

restoration. CERCLA § 107(r). 

BFPPs are not liable as owner/operators for CERCLA response costs, but the property they 

acquire may be subject to a windfall lien where an EPA response action has increased the fair 

market value of the property. That is, the United States, after spending Superfund money for 

cleanup at a property, may have a windfall lien on the property for the lesser of the unrecovered 

response costs or the increase in fair market value at the property attributable to the Superfund 

cleanup. The windfall lien provision is found in CERCLA § 107(r), and does not supplant the 

lien provision found in CERCLA § 107(l). 

WINDFALL LIEN GUIDANCE AND SETTLEMENTS 

EPA and DOJ jointly issued guidance on the windfall lien provision, Interim Enforcement 

Discretion Policy Concerning “Windfall Liens” Under Section 107(r) of CERCLA, on July 16, 

2003. EPA separately published the accompanying “Windfall Lien” Guidance Frequently Asked 

Questions. In addition to explaining how EPA intends to perfect the windfall lien and when EPA 

may seek to forclose on this lien, the guidance includes two attachments: 1) a sample “comfort 

letter” that explains to the recipient whether EPA believes there is a possible windfall lien 

applicable to the property; and 2) a model settlement document, which EPA may use to settle any 

applicable windfall lien provision in exchange for monetary or other adequate consideration. This 

guidance was also accompanied by a Windfall Lien Frequently Asked Questions fact sheet issued 

on July 16, 2003. 

In January 2008, EPA issued another windfall lien guidance, titled Windfall Lien Administrative 

Procedures and the associated Model Notice of Intent to File a Windfall Lien Letter. These 

documents provide guidance on the timing for filing notice of a windfall lien on a property and 

the EPA administrative procedures that should accompany filing a windfall lien notice. 

For more discussion of resolution of windfall liens, please refer to Section IV.B.3. 

8 
 

2. Owners of Property Impacted by Contamination from an Off-site Source 

(Contiguous Property Owners) 

i. Contaminated Aquifers 

Owners of property above aquifers contaminated from an off-site source may be concerned about 

CERCLA liability even though they did not cause and could not have prevented the ground 

water contamination. Certain protections from liability for contiguous landowners may be found 

in EPA guidance issued before and after the Brownfields Amendments. 

In May 1995, OSRE developed the Final Policy Toward Owners of Property Containing 

Contaminated Aquifers in response to this concern. EPA stated that it would not require cleanup 

or the payment of cleanup costs if the landowner did not cause or contribute to the 

contamination. It also stated that if a third party sued or threatened to sue, EPA would consider 

entering into a settlement with the landowner covered under the policy to prevent third-party 

damages being awarded. 

THRESHOLD CRITERIA FOR EPA’S CONTAMINATED AQUIFER GUIDANCE 

A landowner may be covered by this policy. EPA will exercise its discretion or may enter into a 

settlement if all the following criteria of policy 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 ground water 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. 

The policy identifies certain exceptions when the policy will not be applicable, including, among 

others, when a well on the property may affect the migration of contaminants, or when there is a 

contractual relationship between the landowner and the person causing the off-site 

contamination. In addition, the policy required that the landowner must not be liable based on 

some other connection to the site, such as being a generator or transporter. 

9 
 

ii. Contiguous Property Owners 

The Brownfields Amendments provide statutory protection for contiguous property owners 

(CPOs). Specifically, CERCLA § 107(q) excludes from the definition of “owner or operator” a 

person who owns property that is “contiguous,” or otherwise similarly situated to, a facility that 

is the only source of contamination found on the person’s property. Like the contaminated 

aquifer policy, this provision protects parties that are victims of pollution caused by a neighbor’s 

actions. 

To qualify as a statutory CPO, a landowner must meet the criteria set forth in CERCLA § 

107(q)(1)(A). A CPO must perform AAI before acquiring the property, and demonstrate that it is 

not affiliated with a liable party at the time of purchase and throughout its ownership of the 

property (for more on affiliation requirements, please see the text box on the same subject). 

Persons who know, or have reason to know, before purchase, that the property is or could be 

contaminated, cannot qualify for the CPO liability protection under the Brownfields 

Amendments, although such parties may still be entitled to rely on the BFPP statutory defense or 

EPA may exercise its enforcement discretion not to pursue such persons, as set forth in EPA’s 

1995 contaminated aquifer guidance. Like BFPPs, CPOs must also satisfy ongoing obligations 

after purchase. 

On January 13, 2004, EPA issued its Interim Enforcement Discretion Guidance Regarding 

Contiguous Property Owners (Contiguous Property Owner Guidance), which discusses 

CERCLA §107(q) and may be found at 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/contig-prop.pdf. 

The guidance addresses: 1) the statutory criteria; 2) the application of CERCLA §107(q) to 

current and former owners of property; 3) the relationship between section 107(q) and EPA’s 

Residential Homeowner Policy and Contaminated Aquifers Policy; and 4) discretionary 

mechanisms EPA may provide to resolve remaining liability concerns of contiguous property 

owners. The guidance document was followed by a Contiguous Property Owner Reference 

Sheet, which is available on the internet at 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/contig-prop-faq.pdf. 

Moreover, on November 9, 2009, EPA drafted a model CERCLA Section 107(q)(3) CPO 

assurance letter in accordance with the 2004 enforcement discretion guidance mentioned above. 

Use of such letters is limited to several types of enumerated circumstances and is anticipated to 

be rare because CERCLA 107(q) is self-implementing. For more information on CPO assurance 

letters, see http://www.epa.gov/compliance/resources/policies/cleanup/superfund/cpo-assuremod-ltr-mem.pdf. 

3. Purchasers without Knowledge of Contamination 

Entities that acquire property and had no knowledge of the contamination at the time of purchase 

might be eligible for CERCLA’s third-party defense or innocent landowner defense, in addition 

to the BFPP defense. 

10 
i. Third-Party Defense 

CERCLA § 107(b) includes the following defenses to liability if a person can show, by a 

preponderance of the evidence, that the contamination was solely caused by: 

$	 An act of God (CERCLA § 107(b)(1)); 

$	 An act of war (CERCLA § 107(b)(2)); or 

$	 The act or omission of a third party (CERCLA § 107(b)(3)). 

To invoke CERCLA’s § 107(b)(3) third-party defense, the third party’s act or omission must not 

occur “in connection with a contractual relationship.” Moreover, an entity asserting the 

CERCLA § 107(b)(3) defense must show that: a) it exercised due care with respect to the 

contamination; and b) it took precautions against the third party’s foreseeable acts or omissions, 

and the consequences that could foreseeably result from such acts or omissions. 

ii. Innocent Landowner Liability Protection 

The Superfund Amendments and Reauthorization Act of 1986 (Public Law 96-510) expanded 

the third-party defense by creating innocent landowner exclusions to the definition of a 

“contractual relationship.” The 2002 Brownfields Amendments later clarified the innocent 

landowner liability protection. Previously, the deed transferring title between a PRP and the new 

landowner was a “contractual relationship” that prevented the new landowner from raising the 

traditional CERCLA § 107(b)(3) third-party defense. To promote redevelopment and provide 

more certainty, Congress created the “innocent landowner defense,” which requires an entity to 

meet the criteria set forth in CERCLA § 101(35) in addition to the requirements of CERCLA § 

107(b)(3). CERCLA § 101(35)(A) distinguishes between three types of innocent landowners: 

$	 Purchasers who acquire property without knowledge of contamination and who have no 

reason to know about the contamination, CERCLA § 101(35)(A)(i); 

$	 Governments “which acquired the facility by escheat, or through any other involuntary 

transfers or acquisition, or through the exercise of eminent domain authority by purchase 

or condemnation,” CERCLA § 101(35)(A)(ii); and 

$	 Inheritors of contaminated property, CERCLA § 101(35)(A)(ii). 

For all three types of landowners, the facility must be acquired after the disposal or placement of 

the hazardous substances on, in, or at the facility. Further, a set of continuing obligations similar 

to what is required of BFPPs also applies. CERCLA § 101(35)(A). 

For purchasers who acquire property without knowledge of contamination, an owner must have 

conducted AAI before purchase and complied with other pre- and post-purchase requirements. 

The 2002 Brownfields Amendments also elaborated on the AAI requirement. See the “All 

Appropriate Inquiries” text box in this handbook. 

11 
The innocent landowner defense may provide liability protection to some owners of 

contaminated property -- especially those that purchased property before January 1, 2002, and 

are therefore ineligible for the BFPP protection -- but generally most post-2002 prospective 

purchasers are unlikely to rely on this defense because of the requirement that the purchaser have 

no knowledge of contamination at the site at the time of acquisition. 

Several of EPA’s guidance documents discuss the ILO liability protection, including the 

Common Elements guidance, discussed below. The Common Elements guidance is also included 

at Appendix A. 

4. Common Elements Guidance 

In March 2003, EPA issued its “Common Elements” guidance for the three property owner 

classes -- bona fide prospective purchaser (BFPP), contiguous property owner (CPO), and 

innocent purchaser (ILO) -- addressed in the Brownfields Amendments. See Interim Guidance 

Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective 

Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA 

Liability (“Common Elements”). 

The guidance was accompanied by the “Common Elements” Guidance Reference Sheet, also 

issued on March 6, 2003, which highlights the significant points of the guidance. Both of these 

documents are available in Appendix A of this handbook. 

The Brownfields Amendments identify threshold criteria and ongoing obligations that these 

types of landowners must meet to obtain the liability protections afforded by the statute. Many of 

these obligations are overlapping and thus the shorthand name (“Common Elements”) for the 

guidance. Included with the guidance are three documents: 

(1) A chart laying out the common statutory obligations; 

(2) A questions and answers document pertaining to the “reasonable steps” statutory 

criteria; and 

(3)	 A model comfort/status letter for providing site-specific suggestions as to reasonable 

steps. 

The Common Elements guidance first discusses the threshold criteria BFPPs, CPOs, and 

innocent landowners must meet to assert these liability protections. 

The first threshold requirement is that the landowner must perform all appropriate inquiries 

(AAI) before purchasing the property. CERCLA §§ 101(40)(B), 107(q)(1)(A)(viii), 

101(35)(A)(i), and (B)(i). 

12 
 

ALL APPROPRIATE INQUIRIES 

BFPPs, CPOs, and innocent landowners must all undertake “all appropriate inquiries” (AAI) under 

CERCLA § 101(35)(B) before acquiring property to obtain liability protection. CERCLA § 101(35)(B) 

required EPA to publish a regulation to “establish standards and practices for the purpose of satisfying 

the requirement to carry out [AAI] . . . .” EPA’s All Appropriate Inquiries Rule (“AAI Rule”), 40 

C.F.R. Part 312, became final on November 1, 2006 (70 FR 66070). Parties affected by the AAI Rule 

are those purchasing commercial or industrial real estate who wish to take advantage of CERCLA’s 

new liability protections, and those persons conducting a site characterization or assessment with funds 

provided by certain federal brownfields grants. 

For more information on the AAI Rule, please visit http://www.epa.gov/brownfields/aai/. 

Second, the BFPP and CPO protections require that the purchaser not be “affiliated” with a liable 

party, CERCLA §§ 101(40)(H), 107(q)(1)(A)(ii), and for the innocent landowner defense, the act 

or omission that caused the release or threat of release of hazardous substances and the resulting 

damages must have been caused by a third party with whom the purchaser does not have an 

employment, agency, or contractual relationship. CERCLA §§ 107(b)(3), 101(35)(A). 

AFFILIATION 

The BFPP and CPO liability protections require that the purchaser or owner of the property at issue 

not be “affiliated” with a person that is potentially liable at that property. For both liability 

protections, “affiliation” includes a familial, contractual, financial, or corporate relationship. The 

affiliation language is found in Section 101(40) for those seeking liability protection as a BFPP, 

while the affiliation language for a CPO is found in Section 107(q)(1)(A). The CPO affiliation 

language differs from the BFPP affiliation language in that there is no exception for relationships 

created by the instruments by which title to the facility is conveyed or financed. Except for this 

difference, the affiliation language in the BFPP and CPO provisions is virtually identical. EPA has 

issued guidance detailing how it will implement the affiliation language in the exercise of its 

enforcement discretion. 

Third, the Common Elements guidance discusses the common ongoing obligations for each type 

of landowner liability protection, identified as follows: 

$ Complying with land use restrictions and not impeding the effectiveness or integrity of 

institutional controls; 

$ Taking “reasonable steps to prevent releases” with respect to hazardous substances 

affecting a landowner’s property; 

$ Providing cooperation, assistance, and access to the property; 

$ Complying with information requests and subpoenas; and 

$ Providing legally required notices. 

13 
Prospective purchasers or owners of contaminated property may want to use the Common 

Elements guidance to understand the different liability protections that may be available and 

their requirements. 

B. State Response Programs 

This Section covers: 

$	 Voluntary Cleanup Programs; 

$	 Memoranda of Agreement; and 

$	 Eligible Response Sites. 

1. Voluntary Cleanup Programs 

State response programs play a significant role in assessing and cleaning up brownfield sites. As 

Congress recognized in the legislative history of the Brownfield Amendments, 

“[t]he vast majority of contaminated sites across the 

Nation will not be cleaned up by the Superfund 

program. Instead, most sites will be cleaned up under 

State authority.” 

Voluntary cleanup programs (VCPs) are typically programs authorized by state statutes to 

address brownfield and other lower-risk sites. Links to state VCPs can be found on EPA’s 

website at http://www.epa.gov/compliance/cleanup/revitalization/state.html. 

EPA has historically supported the use of VCPs and continues to provide grant funding to 

establish and enhance VCPs. EPA also continues to provide general enforcement assurances to 

individual states to encourage the assessment and cleanup of sites addressed under VCP 

oversight. This approach to VCPs was codified in the Brownfields Amendments as CERCLA § 

128: 

$	 CERCLA § 128(a) addresses grant funding and memoranda of agreement (MOAs) for 

state response programs (i.e., VCPs); 

$	 CERCLA § 128(b) addresses the “enforcement bar,” which limits EPA enforcement 

actions under CERCLA §§ 106(a) and 107(a), at “eligible response sites” addressed in 

compliance with state response programs that specifically govern cleanups to protect 

human health and the environment; and 

$	 CERCLA § 128(b)(1)(C) addresses the establishment and maintenance of a public record 

by a state to document the cleanup and potential use restrictions of sites addressed by a 

VCP. 

14 
2. Memoranda of Agreement 

Since 1995, EPA has encouraged the use of voluntary cleanup programs (VCPs) at lower-risk 

sites by entering into non-binding memoranda of agreement (MOAs) with interested states based 

on a review of the state VCP’s capabilities. MOAs can be a valuable mechanism to support and 

strengthen efforts to achieve protective cleanups under VCP oversight. The purpose of the 

MOAs is to foster more effective and efficient working relationships between EPA and 

individual states regarding the use of their VCPs. Specifically, MOAs define EPA and state roles 

and responsibilities and provide EPA recognition of the state’s capabilities. MOAs typically 

include a general statement of EPA enforcement intentions regarding certain sites cleaned up 

under the oversight of a VCP. A number of states are also using their VCPs to address facilities 

subject to corrective action under the Resource Conservation and Recovery Act (RCRA). As a 

result, EPA and several states have expanded upon the CERCLA VCP MOA concept to address 

some facilities subject to RCRA corrective action. Those agreements are commonly known as 

RCRA Memoranda of Understanding (MOUs). EPA has also entered into a few MOAs that 

address multiple cleanup programs and are consistent with EPA’s One Cleanup Program. More 

information on EPA’s One Cleanup Program is available on EPA’s website at 

http://www.epa.gov/oswer/onecleanupprogram/. 

Copies of specific MOAs or MOUs, and additional information about state and tribal response 

programs are available from EPA’s website at 

http://www.epa.gov/brownfields/state_tribal/moa_mou.htm. 

3. Eligible Response Sites 

The Brownfields Amendments included the concept of an “eligible response site” (CERCLA § 

101(41)), which is a site at which EPA may not take an enforcement action under §§ 106 or 107 

if it is already being cleaned up under a state response program, and which may be eligible for 

deferral from listing on the National Priorities List (NPL) in certain circumstances. CERCLA §§ 

128(b), 105(h). If an EPA Region determines that a site is not an “eligible response site,” that site 

will not be subject to the deferral provisions in § 105(h) and the limitations on EPA’s 

enforcement and cost recovery authorities under § 128(b). For more information on eligible 

response sites, please see EPA’s March 2003 guidance, Regional Determinations Regarding 

Which Sites Are Not “Eligible Response Sites” at 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/reg-determ-small-busmem.pdf. 

C. Local Government Liability Protections 

This Section covers: 

$ Involuntary Acquisition; 

$ Emergency Response; and 

$ Land Banks. 

15 
 

1. Involuntary Acquisition 

CERCLA provides that a unit of state or local government will not be considered an owner or 

operator of contaminated property (and thus will be exempt from potential CERCLA liability as 

a PRP) if the state or local government acquired ownership or control involuntarily. This 

provision includes a non-exhaustive list of examples of involuntary acquisitions, including 

obtaining property through bankruptcy, tax delinquency, abandonment, or “other circumstances 

in which the government entity involuntarily acquires title by virtue of its function as a 

sovereign.” CERCLA § 101(20)(D). It is important to note that this exclusion will not apply to 

any state or local government that caused or contributed to the release or threatened release of a 

hazardous substance from a facility. 

MEANING OF “INVOLUNTARY ACQUISITION” 

In EPA’s 1995 Municipal Immunity from CERCLA Liability for Property Acquired through 

Involuntary State Action, EPA stated that an involuntary acquisition or transfer includes one “in 

which the government’s interest in, and ultimate ownership of, a specific asset exists only because the 

conduct of a non-governmental party...gives rise to a statutory or common law right to property on 

behalf of the government.” EPA acknowledges that tax foreclosure and other acquisitions by 

government entities often require some affirmative or volitional act by the local government. 

Therefore, a government entity does not have to be completely passive during the acquisition in order 

for the acquisition of property to be considered “involuntary” under CERCLA. Instead, EPA 

considers an acquisition to be “involuntary” if the government’s interest in, and ultimate ownership 

of, the property exists only because the actions of a non-governmental party give rise to the 

government’s legal right to control or take title to the property. 

Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action 

may be found at http://www.epa.gov/compliance/resources/policies/cleanup/superfund/immunitycercla-mem.pdf 

CERCLA § 101(35)(A)(ii) also discusses involuntary acquisitions in the context of the innocent 

landowner defense pursuant to CERCLA § 101(35)(A). Please see Section III.A.3.ii for further 

detail. 

For more information on state and local government involuntary acquisition, see EPA’s website 

at http://www.epa.gov/compliance/cleanup/revitalization/local-acquis.html. EPA’s CERLCA 

Liability and Local Government Acquisition and Other Activities is included in Appendix C. 

2. Emergency Response 

Local units of government, especially fire, health, and public safety departments, are often the 

first responders to emergencies and dangerous situations at contaminated properties in their 

communities. So as not to interfere with these activities, Congress included the emergency 

response exemption in CERCLA § 107(d)(2). Under this provision, state or local governments 

will not be liable for “costs or damages as a result of actions taken in response to an emergency 

created by a release or threatened release of a hazardous substance.” To qualify, the state or 

local government must not own the property and must not act in a grossly negligent manner or 

16 
intentionally engage in misconduct. Further, EPA may reimburse local governments up to 

$25,000 for the costs of temporary measures under CERCLA § 123. 

3. Land Banks 

An increasing number of states and municipalities are passing legislation that authorizes land 

banks. Enabled by state legislation and enacted by local ordinances, a land bank is a 

governmental entity or nonprofit that acquires, holds, leases, and/or manages vacant, abandoned, 

and tax delinquent properties. They are charged with bringing such properties into productive 

use. Land banks can allow local governments to overcome redevelopment barriers that prevent 

the conversion of underutilized land to higher uses. They can also facilitate land reuse while 

advancing public policy goals such as provision of affordable housing, stabilization of 

neighborhoods, development of open space, revitalization of brownfields, smart growth 

planning, and a reduction of crime, potential fire hazards, and urban blight. 

Although the responsibilities of land banks will vary according to state law and the authorizing 

legislation, common responsibilities and authorities of a land bank include inventory of vacant 

and abandoned properties, acquisition, property management, property disposition, and waiver of 

delinquent taxes. 

STATES WITH LAND BANK LEGISLATION 

$ Michigan 

$ Ohio 

$ Georgia 

$ Indiana 

$ Texas 

$ Kentucky 

$ Maryland 

$ Missouri 

$ Tennessee 

While many land bank properties may not be contaminated, it is important to be aware of the 

potential for contamination. Purchasers of property from a land bank may want to assess whether 

there is an applicable CERCLA exemption, affirmative defense, or liability protection. These 

concerns also apply in the local government context. Whether a local government acquiring a 

land bank property will qualify under the involuntary acquisition exemption, BFPP, or the third -

party defense will be determined on a case-by-case basis. 

D. Lender Liability Protections 

In the 1990s, it became apparent to EPA and DOJ that liability concerns and fears of 

enforcement were discouraging financial institutions from lending money to developers of 

contaminated land, and municipalities from exercising their governmental involuntary acquisition rights and performing cleanup functions on such properties. 

17 
EPA initially tried to address the concerns of lenders and municipalities through the Lender 

Liability Rule promulgated in 1992. A federal court vacated the rule, however, on the ground 

that “EPA lacked authority to issue” the rule as a binding regulation. Kelly v. EPA, 15 F.3d 1100 

(D.C. Cir. 1994), reh. denied, 25 F.3d 1088 (D.C. Cir. 1994), cert. denied, Am. Bankers Ass’n v. 

Kelly, 115 S.Ct. 900 (1995). After the court decision, EPA and DOJ issued the Policy on 

CERCLA Enforcement Against Lenders and Government Entities that Acquire Property Involuntarily on September 22, 1995, which stated that EPA and DOJ were not precluded from 

following the provisions of the rule as enforcement policy. 

This Section covers: 

$ Lenders; 

$ Local Governments and Lender Liability; and 

$ Underground Storage Tank Lender Liability Rule Lenders. 

1. Lenders 

On August 1, 1996, EPA issued a fact sheet summarizing EPA’s position on lender liability titled 

The Effect of Superfund on Lenders That Hold Security Interests in Contaminated Property. 

Lenders were concerned, however, that EPA’s 1995 enforcement policy did not apply to 

contribution actions brought by third parties attempting to recover their CERCLA response costs 

from lenders. Partly in response to these concerns, Congress enacted the Asset Conservation, 

Lender Liability, and Deposit Insurance Protection Act of 1996, 110 Stat. 3009-462 

(1996)(“Lender Liability Act”). 

Section 2502 of the Lender Liability Act amended CERCLA’s secured creditor exemption 

contained in CERCLA § 101(20)(E). Using language very similar to the language of the 

CERCLA Lender Liability Rule, Congress in CERCLA §§ 101(20)(E)-(G) elaborated on the 

original exemption by defining key terms and listing activities that a lender may undertake 

without forfeiting the exemption. Under the statute, a lender is not an “owner or operator” under 

CERCLA if, “without participating in the management” of a vessel or facility, it holds indicia of 

ownership primarily to protect its security interest. CERCLA § 101(20)(E)(i). “Participation in 

management” is further defined in the statute in § 101(20)(F). Additional information is available 

in the “Participation in Management” text box below. 

After the enactment of the Lender Liability Act, EPA issued guidance to further clarify the 

circumstances in which EPA will apply the provisions of the Lender Liability Rule and its 

preamble in its interpretation of CERCLA’s secured creditor exemption. See Policy on 

Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by 

Government Entities (October 1995). EPA’s subsequent Policy on Interpreting CERCLA 

Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (June 

1997) explains that when interpreting the amended secured creditor exemption, EPA will treat 

the Lender Liability Rule and its preamble as authoritative guidance. 

18 
 

“PARTICIPATION IN MANAGEMENT” DEFINED 

A lender “participates in management” (and will not qualify for the exemption) if the lender: 

$	 Exercises decision-making control over environmental compliance related to the facility, and in 

doing so, 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 day-to-day decision-making on environmental 

compliance; or 

$	 Exercises all, or substantially all, of the operational (as opposed to financial or administrative) 

functions of the facility other than environmental compliance. 

The term “participate in management” does not include certain activities such as when the lender: 

$ Inspects the facility; 

$ Requires a response action or other lawful means to address a release or threatened release; 

$ Conducts a response action under CERCLA § 107(d)(1) or under the direction of an on-scene 

coordinator; 

$ Provides financial or other advice in an effort to prevent or cure default; or 

$ 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 before 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 an emergency response or action under the direction of an on-scene coordinator; or 

$ Takes any other measure to preserve, protect, or prepare the facility for sale or disposition; 

provided the lender seeks to divest itself of the facility at the earliest practicable, commercially 

reasonable time, on commercially reasonable terms. EPA considers this test to be met if the 

lender, within 12 months of foreclosure, lists the property with a broker or advertises it for sale 

in an appropriate publication. 

2. Local Governments and Lender Liability 

Section 2504 of the Lender Liability Act codifies the portion of the CERCLA Lender Liability 

Rule that addresses involuntary acquisitions by government entities. State or local governments 

that acquire property by involuntary means such as bankruptcy, tax delinquency, or abandonment 

are excluded from the definition of “owner or operator” in CERCLA, and therefore are not liable 

under CERCLA Section 107(a), if they did not otherwise cause or contribute to contamination at 

the facility. CERCLA § 101(20)(D). There is also an innocent landowner affirmative defense 

available for government entities that acquire property “by escheat, or through any other 

involuntary transfer or acquisition, or through the exercise of eminent domain authority by 

purchase or condemnation.” CERCLA § 101(35)(A)(ii). Governments should be aware, 

however, that additional conditions, criteria, and continuing obligations must be met as part of 

the innocent landowner defense. 

19 
EPA’s Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary 

Acquisitions by Government Entities (October 1995) and Policy on Interpreting CERCLA 

Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (June 

1997) provide guidance on lender liability. Involuntary acquisition issues are further clarified by 

EPA’s Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary 

State Action (October 1995) and The Effect of Superfund on Involuntary Acquisitions of 

Contaminated Property by Government Entities (December 1995). EPA continues to follow 

these documents as guidance when addressing local government liability. 

State or local government entities that acquire property after the enactment of the 2002 

Brownfields Amendments and are concerned about potential contamination may want to seek the 

advice of legal counsel before taking title to ensure that they will have liability protection (e.g., 

BFPP status or protection under the involuntary acquisition provision or third-party defense). 

State or local government entities should note that to achieve BFPP status, an entity must conduct AAI before purchase and comply with the other BFPP requirements (CERCLA §§ 

101(40)(A)-(H), 107(r)(1)). Conducting proper AAI before purchase is also important for state 

and local government entities relying on the BFPP protection for brownfield grant eligibility. 

3. Underground Storage Tank (UST) Lender Liability Rule 

Local communities often struggle with what to do about polluted, abandoned gas stations and 

other petroleum-contaminated properties, generally referred to as petroleum brownfields, which 

can be eyesores and blight communities. Often, citizens and businesses shy away from the reuse 

potential of these properties, fearing the potential liability of environmental contamination under 

Subtitle I of RCRA. The Underground Storage Tank (UST) Lender Liability Rule (40 C.F.R. §§ 

280.200-.230) provides one method by which EPA has addressed fears of potential liability to 

encourage the reuse of abandoned gas station sites. 

While developing the UST Lender Liability Rule, EPA recognized that many security interest 

holders were abandoning the UST properties they held as collateral instead of foreclosing on 

those properties and risking potential liability for cleanup costs. 

The UST Lender Liability Rule exempts certain classes of “owners” and “operators” (i.e., 

holders of security interests as described in the rule) from identified RCRA regulatory 

requirements including corrective action, technical requirements, and financial responsibility, 

provided that specified criteria are met. 

By allowing security interest holders to market their foreclosed properties without incurring 

RCRA liability, the UST Lender Liability Rule encourages the reuse of gas stations that may 

otherwise end up abandoned. The rule also protects human health and the environment by 

requiring security interest holders to empty any tanks they acquire through foreclosure, thus 

preventing future releases. Additional information on the UST Lender Liability Rule is available 

on EPA’s website at http://www.epa.gov/oust/fedlaws/280_i.pdf. 

20 
E. Residential Property Owners 

In 1991, EPA issued its Policy Towards Owners of Residential Properties at Superfund Sites, an 

enforcement discretion policy, the goal of which was to relieve residential owners of the fear that 

they might be subject to an enforcement action involving contaminated property, even though 

they had not caused the contamination on the property. 

Under this policy, residential property is defined as “single family residences of one-to-four 

dwelling units...” Further, this policy deems irrelevant a residential owner’s knowledge of 

contamination. The residential owner policy applies to residents as well as their lessees, so long 

as the activities the resident takes on the property are consistent with the policy. The policy also 

applies to residential owners who acquire property through purchase, foreclosure, gift, 

inheritance, or other form of acquisition, as long as the activities the resident undertakes on the 

property after acquisition are consistent with the policy. 

Residential property owners who purchase contaminated property after January 1, 2002, may 

also take advantage of the statutory BFPP protection. The Brownfields Amendments addressed 

residential property owners by clarifying the type of pre-purchase investigation (i.e., AAI) that a 

residential property owner must conduct to obtain BFPP status. Specifically, an inspection and 

title search that reveal no basis for further investigation will qualify as all appropriate inquiry for 

a residential purchaser. CERCLA § 101(40)(B)(iii). 

THRESHOLD CRITERIA FOR RESIDENTIAL PROPERTY OWNERS UNDER EPA GUIDANCE 

An owner of residential property located on a CERCLA site may be protected from liability if the 

owner: 

$ Has not and does not engage in activities that lead to a release or threat of release of 

hazardous substances, resulting in EPA taking a response action at the site; 

$ Cooperates fully with EPA by providing access and information when requested and does not 

interfere with the activities that either EPA or a state is taking to implement a CERCLA 

response action; 

$ Does not improve the property in a manner inconsistent with residential use; and 

$ Complies with institutional controls (e.g., property use restrictions) that may be placed on the 

residential property as part of EPA’s response action. 

21 
 

IV. Site-Specific EPA Tools to Address Status Liability 

Concerns, and/or Perceived Stigma 

A. Comfort/Status Letters 

Comfort/status letters provide a prospective purchaser with the information EPA has about a 

particular property and EPA’s intentions with respect to the property as of the date of the letter. 

The “comfort” comes from a greater understanding of what EPA knows about the property and 

what its intentions are with respect to any response activities. Comfort/status letters are not “no 

action” assurances; that is, they are not assurances by EPA that it will not take an enforcement 

action at a particular site in the future. 

This Section covers: 

$ Superfund Comfort/Status Letters; 

$ RCRA Comfort/Status Letters; 

$ Bona Fide Prospective Purchaser Reasonable Steps Comfort Letters; and 

$ Comfort Letters for National Priorities List Sites and Federally Owned Properties. 

1. Superfund Comfort/Status Letters 

On November 8, 1996, EPA issued its Policy on the Issuance of Comfort/Status Letters. The 

letters provide a party with relevant releasable information EPA has pertaining to a particular 

piece of property, what that information means, and the status of any ongoing, completed or 

planned federal Superfund action at the property. Comfort/status letters may be considered when 

they may facilitate the cleanup and redevelopment of brownfields, where there is a realistic 

perception or probability of incurring Superfund liability, and where there is no other mechanism 

available to adequately address a party’s concerns. 

The policy lists four types of comfort letters: 

$ No Previous Superfund Interest Letter; 

$ No Current Superfund Interest Letter; 

$ Federal Superfund Interest Letter; and 

$ State Action Letter. 

EVALUATION CRITERIA FOR SUPERFUND COMFORT/STATUS LETTERS 

EPA may issue a comfort letter upon request if: 

$ The letter may facilitate cleanup and redevelopment of potentially contaminated property; 

$ There is a realistic perception or probability of incurring CERCLA liability; and 

$ There is no other mechanism available to adequately address the party’s concerns. 

22 
PRIVATE PARTY TOOLS 

Various private tools can be used to manage environmental liability risks associated with brownfields 

and other properties. These tools may include: 

$	 Indemnification Provisions - These are private contractual mechanisms in which one 

party promises to cover the costs of liability of another party. Indemnification provisions 

provide prospective buyers, lenders, insurers, and developers with a means of assigning 

responsibility among themselves for cleanup costs, and encourage negotiations among 

private parties without government involvement. 

$	 Environmental Insurance Policies - The insurance industry offers products intended to 

allocate and minimize liability exposures among parties involved in brownfields 

redevelopment. These products include cost cap, pollution legal liability, and secured 

creditor policies. Insurance products may serve as a tool to manage environmental liability 

risks, but, many factors affect their utility including the types of coverage available, the 

dollar limits on claims, the policy time limits, site assessment requirements, and the cost of 

available products. Parties involved in brownfields redevelopment considering 

environmental insurance should always secure the assistance of skilled brokers and lawyers 

to help select appropriate coverage. 

2. RCRA Comfort/Status Letters 

RCRA treatment, storage, and disposal (TSD) facilities present unique challenges in terms of 

cleanup and reuse, but may also provide opportunities for revitalization. Recognizing that 

situations often exist at RCRA facilities analogous to Superfund sites, EPA developed guidance 

for issuing comfort/status letters for RCRA TSD facilities. Comfort/Status Letters for RCRA 

Brownfield Properties, issued on February 5, 2001, limited the use of such letters to those 

situations that could facilitate the cleanup and reuse of brownfields, where there was a realistic 

perception or probability of EPA initiating a RCRA cleanup action, and where there was no other 

mechanism to adequately address the party’s concern. 

The proper use of RCRA comfort/status letters was explained further in the April 8, 2003 

guidance Prospective Purchaser Agreements and Other Tools to Facilitate Cleanup and Reuse of 

RCRA Sites. That guidance highlights RCRA PPAs, and the February 23, 2003 Final Guidance 

on Completion of Corrective Action Activities at RCRA Facilities highlights RCRA PPAs as 

resource intensive but potentially valuable tools to help revitalize RCRA sites. The guidances 

provide examples where RCRA PPAs have been successfully used and identify certain factors 

that should be considered before issuing a RCRA PPA. 

3. Reasonable Steps Comfort/Status Letter 

EPA has the discretion, in appropriate circumstances, to provide a bona fide prospective 

purchaser (BFPP) (see Section III.A.1), contiguous property owner (CPO) (see Section 

III.A.2.ii), or innocent landowner (see Section III.A.3.ii) with a comfort/status letter addressing 

what “reasonable steps” a landowner could take at a particular site to meet its continuing 

obligations with respect to hazardous substances found at the property. In issuing this type of 

23 
 

 

letter EPA makes an assessment of the actions proposed by the landowner and, based on sitespecific factors and environmental concerns, determines any potential incompatibilities between 

the proposed actions and EPA’s response actions. EPA also suggests what steps might be 

appropriate for the landowner to take with respect to the planned or completed response action. 

This letter does not provide a release from CERCLA liability, but only provides information with 

respect to reasonable steps based on the available information and the nature and extent of 

contamination known to EPA at the time the letter is issued. If additional information regarding 

the nature and extent of hazardous substance contamination at the site becomes available, 

additional actions may be necessary to satisfy the reasonable steps requirement. 

A sample of this type of letter is included in Attachment C in Appendix A of this handbook, 

Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide 

Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on 

CERCLA Liability (“Common Elements”). 

4. Comfort Letters for National Priorities List Sites and Federally Owned 

Properties 

EPA may issue a comfort letter to address various issues concerning perceived National 

Priorities List (NPL) stigma and CERCLA liability involved in closing military base property. 

In January 1996, EPA updated its Model Comfort Letter Clarifying NPL Listing, 

Uncontaminated Parcel Identifications, and CERCLA Liability Issues Involving Transfers of 

Federally Owned Property (January 1996). This type of comfort letter may include a 

determination that a remedy is operating properly and successfully. 

The model letter also describes certain CERCLA provisions a federal agency must comply with 

before transferring any property on which hazardous substances have been stored for a year or 

more, or are known to have been released or disposed of. The letter may include: 

$	 Information regarding the hazardous substances; 

$	 A covenant that all remedial action necessary to protect human health and the 

environment with respect to any hazardous substances remaining on the property has 

been taken before the date of transfer; and 

$	 A covenant stating that the United States will conduct any additional remedial actions 

found necessary after the date of transfer. 

Information about EPA’s efforts to clean up, transfer, and reuse federal facilities, and the Model 

Comfort Letter Clarifying NPL Listing, Uncontaminated Parcel Identifications, and CERCLA 

Liability Issues Involving Transfers of Federally Owned Property (January 1996) are available at 

http://www.epa.gov/fedfac/. 

24 
 

B. Agreements 

EPA has long recognized the value of redeveloping contaminated land and the importance of 

helping address reasonable liability concerns to encourage prospective purchasers of such land. 

This Section covers: 

$ Bona Fide Prospective Purchaser Work Agreements; 

$ Prospective Purchaser Agreements and Prospective Lease Agreements; 

$ Windfall Lien Resolutions; and 

$ Contiguous Property Owner Assurance Letters and Settlements. 

1. Bona Fide Prospective Purchaser Work Agreements 

As discussed in Section III.A.1, a bona fide prospective purchaser (BFPP) may purchase 

property with knowledge of the contamination. Although the activities of most BFPPs will not 

require liability protection beyond what is provided by the self-implementing BFPP provision, if 

a BFPP wants to perform cleanup work at a contaminated site of federal interest that exceed the 

BFPP reasonable steps requirement, a work agreement may be used to address potential liability 

concerns. 

As a result of this need and to further encourage reuse and redevelopment of contaminated sites, 

EPA and DOJ jointly issued a model administrative order titled Issuance of CERCLA Model 

Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser 

(November 2006), for use as an agreement with a BFPP who intends to perform removal work at 

its property beyond reasonable steps. The purpose of the model is to promote land reuse and 

revitalization by addressing liability concerns associated with acquisition of contaminated 

property. In particular, the removal work to be performed under the model must be of greater 

scope and magnitude than the “reasonable steps” with respect to the hazardous substances at the 

property that must be performed by BFPPs if they are to maintain their protected status under the 

statute. 

The model provides a covenant not to sue for “existing contamination” and requires the person 

performing the removal work to reimburse EPA’s oversight costs. Contribution protection and a 

release and waiver of any windfall lien are also provided. 

The model is for use at sites of federal interest where the work is more significant and complex 

than what is generally required as “reasonable steps” with respect to the hazardous substances at 

the property. 

2. Prospective Purchaser Agreements and Prospective Lease Agreements 

Long before the BFPP liability protection was available, EPA entered into prospective purchaser 

agreements (PPAs) and prospective lease agreements (PLAs). PPAs and PLAs are agreements 

between a liable party and EPA whereby EPA provides the party with liability relief in exchange 

for payment and/or cleanup work. PPAs and PLAs are available for CERCLA and RCRA sites. 

25 
Between 1989 and 2001, EPA published the following policies that addressed PPAs and PLAs: 

$	 Guidance on Landowner Liability under Section 107(a)(1) of CERCLA, De Minimis 

Settlements under Section 122(g)(1)(B) of CERCLA, and Settlements with Prospective 

Purchasers of Contaminated Property (June 6, 1989). Models attached to the 1989 

guidance were for settlements with de minimis landowners under § 122(g)(1)(B). 

$	 Guidance on Agreements with Prospective Purchasers of Contaminated Property (May 

24, 1995). 

$	 Expediting Requests for Prospective Purchaser Agreements (October 1, 1999). 

$	 Support of Regional Efforts to Negotiate Prospective Purchaser Agreements (PPAs) at 

Superfund Sites and Clarification of PPA Guidance (January 10, 2001). 

$	 Memorandum on Prospective Purchaser Agreements and Other Tools to Facilitate 

Cleanup and Reuse of RCRA Sites (April 8, 2003). 

DIFFERENCES BETWEEN BFPP LIABILITY PROTECTION AND PPAS 

BFPP PPAs 

Method of 

Execution Self-Implementing Negotiation and EPA Approval 

Timing Obtained when purchaser After federal government 

meets threshold and approves PPA terms 

maintains statutory 

requirements 

Transaction Costs Lower transaction costs and Higher transaction cost 

some continuing obligations 

After the enactment of the Brownfields Amendments, EPA issued a policy on May 31, 2002, 

Bona Fide Prospective Purchasers and the New Amendments to CERCLA, which discusses the 

interplay between the legislatively created BFPP and EPA’s use of PPAs. In that policy, EPA 

stated that in most circumstances, where a party meets the BFPP requirements, PPAs will no 

longer be needed to enjoy liability relief under CERCLA as a present owner. There are, however, 

limited circumstances under which EPA will continue to consider entering into a PPA, such as 

when: 

$	 Significant environmental benefits will be derived from the project in terms of cleanup; 

$	 The facility is currently involved in CERCLA litigation such that there is a very real 

possibility that a party who buys the facility would be sued by a third party; and 

$	 There are unique, site-specific circumstances not otherwise addressed, and the PPA will 

serve a significant public interest. 

26 
 

In special circumstances, the assurances to BFPPs provided by the above-referenced guidance 

documents may be supplemented for cleanup work performed by BFPPs under EPA supervision. 

A Bona Fide Prospective Purchaser Work Agreement may be an available tool. See Section 

IV.B.1 for more information about Bona Fide Prospective Purchaser Work Agreements. 

3. Windfall Lien Resolution 

In the Interim Enforcement Discretion Policy Concerning “Windfall Liens” Under Section 

107(r) of CERCLA (July 16, 2003), EPA anticipates that there may be situations where a site has 

a windfall lien (for more on windfall liens, see Section III.A.1) and a bona fide prospective 

purchaser wants to satisfy any existing or potential windfall lien before or close to the time of 

acquisition. Congress specifically provided EPA with the authority to resolve windfall lien 

exposure in CERCLA § 107(r)(2). EPA and DOJ have developed a model document to facilitate 

resolution of windfall liens as an attachment to the windfall liens guidance. 

More information on windfall lien resolution and the model document for such a resolution is 

available in the Interim Enforcement Discretion Policy Concerning “Windfall Liens” Under 

Section 107(r) of CERCLA (July 16, 2003) at 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/interim-windfall-lien.pdf. 

4. Contiguous Property Owner Assurance Letters and Settlements 

The Brownfields Amendments provide CERCLA liability protections for contiguous property 

owners (CPOs). Some landowners continue to have liability concerns, however, especially where 

EPA has conducted a response action on the neighboring contaminated property or the CPO’s 

property. In such cases, EPA has the discretion to offer assurance that no enforcement action will 

be brought against a CPO for contamination resulting from a neighbor’s actions, or to enter into 

a settlement agreement with the CPO, providing the CPO with cost recovery or contribution 

protection from potentially responsible parties at the site. 

Guidance on the appropriateness of an assurance letter or an agreement is found in EPA’s 

Interim Enforcement Discretion Guidance Regarding Contiguous Property Owners (January 13, 

2004) at http://www.epa.gov/compliance/resources/policies/cleanup/superfund/contig-prop.pdf. 

EPA also issued a Model CERCLA Section 107(q)(3) Contiguous Property Owner Assurance 

Letter (November 11, 2009) available at 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/cpo-assure-mod-ltr.pdf. 

C. Other Tools 

This Section covers: 

$ Ready for Reuse Determinations and 

$ National Priorities List Deletion. 

27 
1. Ready for Reuse Determinations 

When all or a portion of a Superfund site is protective for specified uses, EPA has the discretion 

to issue a Ready for Reuse (RfR) determination. RfR determinations are intended to facilitate 

reuse and provide helpful information to the real estate marketplace about the environmental 

status of the Superfund site. 

RfR determinations are technical rather than legal and explain the nature and extent of 

contamination. Before EPA created the RfR determination, potential users often had to seek out 

information about a site’s environmental condition from many different sources, and the 

information that was available was often expressed in terms difficult for the marketplace to interpret. This meant that many sites able to accommodate certain types of uses were needlessly 

difficult to market. With the creation of the RfR determination, potential users and the real estate 

marketplace will have an affirmative statement written in plain English, and accompanied by 

supporting decision documentation, that a site identified as ready for reuse will remain protective 

of the remedy as long as all required response conditions and use limitations identified in the 

site’s response decision documents and land title documents continue to be met. 

For more information on RfR determinations, please refer to 

http://www.epa.gov/superfund/programs/recycle/tools/rfr.html. Additionally, EPA drafted 

Guidance for Preparing Superfund Ready for Reuse Determinations (February 12, 2004), which 

is available at www.epa.gov/superfund/programs/recycle/pdf/rfrguidance.pdf. 

2. National Priorities List Deletion 

Under certain conditions, EPA may delete or recategorize a property or portion of a property 

from the National Priorities List (NPL). States play a key role in NPL deletions. Before 

developing a notice of intent to delete, EPA must consult with the state. In consultation with the 

state, EPA must consider: 

$	 Whether responsible parties or other parties have taken all appropriate response actions 

that are required; 

$	 Whether no further response actions are required; and 

$	 Whether the remedial investigation has shown that the release poses no significant threat 

to public health or the environment and taking of remedial measures is therefore not 

appropriate. 

Sites may not be deleted from the NPL without state concurrence and publication of a proposed 

deletion in the Federal Register. It is important to note that deletion or partial deletion of a site 

from the NPL does not itself create, alter, or remove any legal rights or obligations. More 

information on NPL deletion is available on the EPA website at 

http://www.epa.gov/superfund/sites/npl/index.htm. 

28 
 

V. Other Considerations for Entities Seeking to Clean Up, 

Reuse, and Revitalize Contaminated Property 

A. Long-Term Stewardship 

The success of the Brownfields program in responding to and even bolstering market demand for 

properties with known or suspected contamination has led to increased demand for contaminated 

properties that are cleaned up under the other EPA programs. The demand for, and use of, such 

sites includes those properties where some contamination remains, but is controlled on site. 

Therefore long-term stewardship activities are needed to ensure the continued protection of the 

remedy and human health and the environment. 

Long-term stewardship generally refers to the activities and processes used to control and 

manage residual contamination, limit inappropriate exposures, control land and resource uses, 

and ensure the continued protectiveness of “engineered” controls and “institutional” controls at 

sites. Long-term stewardship also takes on greater importance with the increased demand for the 

reuse of properties, especially properties where cleanup does not result in unrestricted uses or 

unlimited exposures. 

Physical or “engineered” controls are the engineered physical barriers or structures designed to 

monitor and prevent or limit exposure to the contamination. Certain engineered cleanups will 

involve ongoing operation and maintenance (O&M), monitoring, evaluation, periodic repairs, 

and sometimes replacement of remedy components. 

EXAMPLES OF ENGINEERED CONTROLS 

$ Landfill soil caps 

$ Impermeable liners 

$ Other containment covers 

$ Underground slurry walls 

$ Fences 

$ Bioremediation 

$ Ground water pump-and-treat and monitoring 

systems 

Legal or “institutional” controls are non-engineered instruments, such as administrative and/or 

legal mechanisms, intended to minimize the potential for human exposure to contamination by 

limiting land or resource use. Institutional controls may be used to supplement engineering 

controls and also must be implemented, monitored, and evaluated for effectiveness as long as the 

risks at a site are present. Institutional controls may also include informational devices, such as 

signs, state registries, and deed notices. In February 2005, to further explain the requirements of 

institutional controls, EPA published a guidance document titled Institutional Controls: A 

Citizen’s Guide to Understanding Institutional Controls at Superfund, Brownfields, Federal 

Facilities, Underground Storage Tanks, and Resource Conservation and Recovery Act Cleanups. 

EPA has also developed two cross-program guidances addressing the entire lifecycle of 

institutional controls, from evaluation to implementation and enforcement. These and other 

29 
 

 

institutional controls guidance are available on the EPA institutional controls webpage at 

http://www.epa.gov/superfund/policy/ic/index.htm. 

EXAMPLES OF INSTITUTIONAL CONTROLS 

$ Government Controls -- Permits, Zoning 

$ Informational Devices -- Notices, Advisories, Warnings 

$ Proprietary Controls -- Easements, Restrictive Covenants 

$ Enforcement Mechanisms -- Administrative Orders, Cleanup Agreements 

EPA, the states, and local governments have increased their knowledge about the long-term 

requirements needed to reuse and revitalize contaminated sites. The cleanup remedies for 

contaminated sites and properties often require the management and oversight of on-site waste 

materials and contaminated environmental media for long periods of time. EPA and its 

regulatory partners implement (or ensure that responsible parties implement) long-term 

stewardship after construction of the remedy for site cleanup and for as long as wastes are 

controlled on site. Long-term stewardship can last many years, decades, or in some cases, even 

longer. Long-term stewardship involves ongoing coordination and communication among numerous stakeholders, each with different responsibilities, capabilities, and information needs. 

Even though the various cleanup programs have different authorities, there are common elements 

to address the long-term stewardship efforts. For example, under Superfund, long-term 

stewardship activities are performed as part of the O&M of a remedy. Responsibility for O&M is 

contingent upon whether the cleanup was conducted by a potentially responsible party (PRP), 

including federal facilities, or whether EPA funded the cleanup. Under the RCRA program, 

cleanups are conducted in connection with the closure of regulated units and in facility-wide 

corrective action under either a permit, imminent hazard, or other order or agreement. 

Under the brownfields program, EPA provides cleanup grants to state and local governments and 

non-profit organizations to carry out cleanup activities, including monitoring and enforcement of 

institutional controls. 

Pursuant to the underground storage tanks (UST) program requirements, when a release has been 

detected or discovered at a UST, the UST owner/operator must perform corrective action to 

clean up any contamination caused by the release. Under cooperative agreements between EPA 

and the states, states are largely responsible for overseeing corrective actions in connection with 

USTs, including long-term stewardship. EPA is generally responsible for overseeing the 

corrective actions, including long-term stewardship activities on tribal lands. 

More information on long-term stewardship is available on EPA’s Land Revitalization website at 

http://www.epa.gov/oswer/landrevitalization/download/lts_report_sept2005.pdf. 

B. Supplemental Environmental Projects (SEPs) 

In certain circumstances, supplemental environmental projects (SEPs) may play a role in 

revitalizing contaminated sites. SEPs are not developed, funded, or managed by EPA. Rather, 

30 
 

they are environmentally beneficial projects undertaken by a defendant or respondent in 

settlement of an environmental enforcement action. SEPs are activities that go beyond what is 

required for compliance, and that the violator is not otherwise legally required to perform. 

EPA’s 1998 SEP Policy describes when and how an SEP may be included as part of an 

enforcement settlement. Although not appropriate for every enforcement settlement, where a 

violator is willing and the conditions of the SEP Policy are met, SEPs may help address 

environmental concerns related to the violations at issue in the enforcement action. 

As stated in the November 2006 Brownfield Sites and Supplemental Environmental Projects 

(SEPs) fact sheet, SEPs that require assessment and/or cleanup of brownfield sites cannot be 

included in settlements because appropriations law prohibits the Agency from including SEPs to 

perform activities that Congress has already funded through EPA. Congress provides funds for 

assessment and cleanup activities to EPA’s brownfields program. In an appropriate enforcement 

settlement, however, and as long as all the other requirements of the SEP Policy are met, SEPs 

that complement brownfield site assessment or cleanup activities may be included in settlement. 

Examples of such SEPs are green building projects, projects that call for the violator to provide 

energy-efficient building materials to a redeveloper, urban forest projects, and stream restoration 

projects. To learn more about the general requirements for a SEP, please refer to EPA 

Supplemental Environmental Projects Policy (SEP Policy) (May 1, 1998). 

C. OECA Guiding Principles 

OECA is guided in the development of policy documents not only by enforcement principles 

such as “polluter pays” and “enforcement first,” but also by broader principles that have been 

established to carry out EPA’s mission. 

This Section covers: 

$ Environmental Justice; 

$ Public Participation; and 

$ Financial Assurance. 

1. Environmental Justice 

EPA recognizes that minority and/or low-income communities may be disproportionately 

exposed to environmental harms and risks. As a result, EPA works to protect these and other 

communities burdened by adverse human health and environmental effects and has incorporated 

environmental justice as a priority throughout EPA. Accordingly, EPA maintains its ongoing 

commitment to the fair treatment and meaningful involvement of all people regardless of race, 

color, national origin, or income with respect to the development, implementation, and 

enforcement of environmental laws, regulations, and policies. More information about EPA’s 

environmental justice program as it relates to Superfund can be found at 

http://www.epa.gov/oswer/ej/index.html. 

31 
ENVIRONMENTAL JUSTICE 

Environmental justice includes the fair treatment and meaningful involvement of all people 

regardless of race, color, national origin, or income with respect to the development, 

implementation, and enforcement of environmental laws, regulations, and policies. 

What is meant by fair treatment and meaningful involvement? 

$	 “Fair treatment” means that no group of people should bear a disproportionate share of 

the negative environmental consequences resulting from industrial, governmental, and 

commercial operations or policies. 

$	 “Meaningful involvement” means that: 

1.	 People have an opportunity to participate in decisions about activities that may 

affect their environment and/or health; 

2.	 The public’s contribution can influence the regulatory agency’s decision; 

3.	 Their concerns will be considered in the decision-making process; and 

4.	 Decision makers seek out and facilitate the involvement of those potentially 

affected. 

EPA is committed to improving environmental performance through compliance with 

environmental requirements, preventing pollution, promoting environmental stewardship, and 

incorporating environmental justice across the spectrum of our programs, policies, and activities. 

When working with local environmental justice communities, EPA encourages parties to: 

$	 Meaningfully involve the community in the planning, cleanup, and revitalization process; 

$	 Review the cumulative effects of multiple sources of contamination in close proximity to 

one another; 

$	 Ensure an equitable distribution of brownfields assistance to environmental justice 

communities; 

$	 Adhere to community commitments made in brownfields grant proposals; 

$	 Assist environmental justice communities in obtaining independent technical advisors to 

help communities navigate the brownfields cleanup and redevelopment process; 

$	 Provide equal opportunity for local minority-owned businesses specializing in 

environmental assessment and cleanup work to compete for contracts needed to plan, 

clean up, and revitalize brownfields; and 

$	 Take steps to limit the displacement, equity loss, and cultural loss of the local 

community. 

32 
2. Public Participation 

Citizens are an essential component of the Superfund cleanup and RCRA permitting processes 

and the revitalization of these sites and brownfields sites. Formal public participation activities, 

required by law or regulation, are designed to provide citizens with both access to information 

and opportunities to participate in the cleanup process. EPA uses the term “public participation” 

to denote activities that: 

$	 Encourage public input and feedback; 

$	 Encourage a dialogue with the public; 

$	 Provide access to decision makers; 

$	 Assimilate public viewpoints and preferences; and 

$	 Demonstrate that those viewpoints and preferences have been considered by the decision 

makers. 

COMMUNITY ENGAGEMENT INITIATIVE: PUBLIC PARTICIPATION

 IN THE CLEANUP PROCESS 

EPA benefits from active participation of the public. Effectively engaging communities means 

EPA will need to make information easy to understand; find diverse ways to reach the public 

(both electronically and via traditional means); find creative ways to hear their needs and 

suggestions; and work with partners, stakeholders, and other federal agencies to make informed 

decisions and find the best solutions. Against this broad spectrum of activities, certain guiding 

principles provide consistency in developing a more robust community engagement process. 

EPA’s guiding principles are to: 

$ Proactively include community stakeholders in the decision-making process; 

$ Make decision-making processes transparent, accessible, and understandable; 

$ Include a diversity of stakeholders; 

$ Explain government roles and responsibilities; and 

$ Ensure consistent participation by responsible parties. 

In the revitalization context, working with a variety of community members, local planners, and 

elected officials is an effective way to identify and integrate long-term community needs into 

reuse plans for the site. Redevelopment planning enables citizens to realize their vision for the 

future reuse of the site. This process should encourage participation of all community members 

in goal development, action planning, and implementation. By considering a community’s vision 

of future land uses for contaminated sites, EPA often can tailor cleanup options to accommodate 

community goals. 

33 
While successful redevelopment planning can occur at any stage of a cleanup, redevelopment 

planning should begin as early as possible in the remedial process. The planning process can last 

several days or months depending on the issues facing the community. It is vital to help 

communities think of long-term strategies for sustainable future land use, and EPA should begin 

the public participation process in the earliest stages of redevelopment. 

3. Financial Assurance 

Financial assurance requirements are implemented under Superfund and RCRA to ensure that 

adequate funds are available to address closure and cleanup of facilities or sites that handle 

hazardous materials. 

Financial assurance requirements play an important role in promoting the revitalization of 

contaminated sites. Where financial resources are available for cleanup or closure activities, 

entities interested in reusing or redeveloping the property are not confronted with the question of 

where to obtain the resources for cleaning up the property. When there are inadequate financial 

assurance funds, EPA or the states may have to spend taxpayer money to fund cleanups. This not 

only shifts the responsibility away from the liable party, it may also result in a significant delay 

in closure or cleanup activities. While the property awaits the performance of closure or cleanup 

activities, it is often difficult to attract outside parties to the property for further reuse and 

redevelopment. 

EPA optimizes financial safeguards through compliance assistance, compliance monitoring, and 

enforcement. OECA has developed tools, guidance, and training to assist the regions and states 

in these areas, which are available on EPA’s website at 

http://www.epa.gov/epawaste/hazard/tsd/td/ldu/financial/index.htm. 

D. EPA Initiatives and Programs 

OSRE has worked closely with other EPA offices including the Office of Brownfields and Land 

Revitalization (OBLR), the Office of Site Remediation and Technology Innovation (OSRTI), 

and the Office of Solid Waste (OSW), all within the Office of Solid Waste and Emergency 

Response (OSWER), to develop and launch new initiatives or programs to address certain 

revitalization challenges. 

This Section covers: 

$ The Environmentally Responsible Redevelopment and Reuse Initiative; 

$ Brownfields Grants and State/Tribal Funding; 

$ The Superfund Redevelopment Initiative; 

$ The RCRA Brownfields Initiative; and 

$ RE-Powering America’s Land Initiative. 

34 
 

1. ER3 - Environmentally Responsible Redevelopment and Reuse Initiative 

In 2004, OSRE launched the Environmentally Responsible Redevelopment and Reuse (ER3) 

Initiative as a tool using established liability relief principles and other Agency-wide incentives 

to promote the sustainable cleanup and redevelopment of contaminated sites. Sustainable 

development, including the redevelopment of formerly contaminated sites, is a multi-faceted, 

long-term approach that balances environmental cleanup and protection with economically sound 

development practices and the promotion of social equity. 

The cleanup and redevelopment of contaminated sites produces significant environmental 

benefits and in most cases is preferable to a property remaining underutilized or idle. Current 

development practices, however, can also have significant environmental impacts, such as 

excessive use of scarce natural resources, energy consumption, wildlife habitat destruction, and 

storm water runoff. Sustainable development not only counters these negative trends, but in 

some cases can actually enhance the environment. Sustainable development reflects the synergy 

between the business of development and the environment rather than the trade-off between 

them. 

The ER3 program builds on EPA's efforts to use redevelopment and revitalization of 

contaminated sites as an effective tool to spur cleanups that otherwise may not occur. By 

promoting and facilitating environmentally responsible redevelopment at formerly contaminated 

sites, the goal of ER3 is to establish the next generation of environmental protection - one that 

proactively prevents and/or reduces contamination in the developed environment without 

sacrificing profitability for developers. 

For information on ER3 pilot projects, see EPA’s website at 

http://www.epa.gov/compliance/cleanup/revitalization/er3/. 

2. Brownfields Grants and State/Tribal Funding 

The 2002 Brownfield Amendments established a competitive grant program for the assessment 

and cleanup of brownfield sites, along with environmental job training under CERCLA § 104(k). 

OBLR administers this program, often with OECA’s assistance. Regarding site cleanup, the 

brownfield grant program provides direct funding for brownfields assessment, cleanup, and 

revolving loans (establishment of a revolving loan fund for eligible entities to make loans to be 

used for cleanup), which helps communities revitalize blighted sites by allowing them to take 

what is often the first step in the process -- addressing potential contamination. To be eligible for 

a brownfield grant, an entity must be an eligible entity and must plan to use the grant funding at 

an eligible “brownfield site.” CERCLA §§ 104(k)(1), 104(k)(3), and 101(39). The 2002 

Brownfields Amendments define a brownfield site broadly, but exclude certain sites from 

funding eligibility. Certain sites are excluded based on their regulatory or ownership status. 

CERCLA § 104(k)(4)(B) imposes certain other restrictions on the use of brownfield grant 

funding, such as the prohibition on the use of funds to pay response costs at a site at which a 

recipient of the federal grant funds would be considered liable as a PRP. 

35 
 

Because state and tribal response programs play a significant role in cleaning up brownfields, the 

Brownfields Amendments also authorized EPA to provide assistance to states and tribes to 

establish or enhance their response programs. CERCLA § 128(a). 

OFFICE OF BROWNFIELDS AND LAND REVITALIZATION 

GRANTS AND FUNDING WEB ACCESS
 

For information on the EPA brownfields grant program, please refer to: 

http://www.epa.gov/brownfields 

3. Superfund Redevelopment Initiative 

EPA’s Superfund Redevelopment Initiative (SRI) helps communities return some of the nation’s 

worst hazardous waste sites to safe and productive use. While cleaning up these Superfund sites 

and making them protective of human health and the environment, EPA is working with 

communities and other partners in considering future use opportunities and integrating 

appropriate reuse options into the cleanup process. 

EPA’s goal is to make sure that at every cleanup site, EPA and its partners have an effective 

process and the necessary tools and information to fully explore future uses before the cleanup 

remedy is implemented. This gives EPA the best chance of making its remedies consistent with 

the likely future use of a site. In turn, EPA gives communities the best opportunity to use sites 

productively following cleanup. 

More information on SRI is available at 

http://www.epa.gov/superfund/programs/recycle/index.html. 

4. RCRA Brownfields Prevention Initiative 

A potential RCRA brownfield is a RCRA facility that is not in full use, where there is 

redevelopment potential, and where reuse or redevelopment of that site is slowed due to real or 

perceived concerns about actual or potential contamination, liability, and RCRA requirements. 

The RCRA Brownfields Prevention Initiative was established by EPA to encourage the reuse of 

potential RCRA brownfields so that the land better serves the needs of the community, either 

through more productive commercial or residential development or as greenspace. 

More information on the RCRA Brownfields Prevention Initiative is available on EPA’s website 

at http://www.epa.gov/epawaste/hazard/correctiveaction/bfields.htm. 

The initiative links EPA’s brownfields program with EPA’s RCRA corrective action program 

and other EPA cleanup programs as well as with state cleanup programs to help communities 

address contaminated and often blighted properties that may stand in the way of economic 

vitality. The initiative includes: 

36 
$	 Showcasing cleanup and revitalization approaches through RCRA brownfields 

prevention pilot projects; 

$	 Addressing barriers to cleanup and revitalization with targeted site efforts (TSEs); 

$	 Supporting outreach efforts of EPA regional offices, states, and the RCRA community 

through conferences, training, Internet seminars, and the RCRA brownfields web page; 

and 

$	 Identifying policies that inadvertently may be hindering cleanup and addressing them 

with guidance and technical assistance or through other means. 

5. RE-Powering America’s Land Initiative 

EPA’s RE-Powering America’s Land Initiative encourages renewable energy development on 

current and formerly contaminated land and mine sites. This initiative identifies the renewable 

energy potential of these sites and provides a variety of resources for communities, developers, 

industry, state and local governments, or any other party interested in reusing contaminated or 

formerly contaminated land for renewable energy development. 

More information on EPA’s RE-Powering America’s Land Initiative is available at 

http://www.epa.gov/renewableenergyland/. 

37 
APPENDICES 

Appendix A Common Elements Guidance, March 6, 2003 

Appendix B Top 10 Questions to Ask Before Buying a Superfund Site 

Appendix C CERCLA Liability and Local Government Acquisitions and Other Activities 

Appendix D Brownfields Enforcement and Land Revitalization Policy and Guidance 

Documents 

Appendix E Contact Information 
A Appendix A 

Common Elements Guidance 


II. Background 

The bona fide prospective purchaser provision, CERCLA § 107(r), provides a new 

landowner liability protection and limits EPA’s recourse for unrecovered response costs to a lien 

on property for the increase in fair market value attributable to EPA’s response action. To 

qualify as a bona fide prospective purchaser, a person must meet the criteria set forth in 

CERCLA § 101(40), many of which are discussed in this memorandum. A purchaser of 

property must buy the property after January 11, 2002 (the date of enactment of the Brownfields 

Amendments), in order to qualify as a bona fide prospective purchaser. These parties may 

purchase property with knowledge of contamination after performing all appropriate inquiry, and 

still qualify for the landowner liability protection, provided they meet the other criteria set forth 

in CERCLA § 101(40).2 

The new contiguous property owner provision, CERCLA § 107(q), excludes from the 

definition of “owner” or “operator” a person who owns property that is “contiguous” or 

otherwise similarly situated to, a facility that is the only source of contamination found on his 

property. To qualify as a contiguous property owner, a landowner must meet the criteria set 

forth in CERCLA § 107(q)(1)(A), many of which are common elements. This landowner 

provision “protects parties that are essentially victims of pollution incidents caused by their 

neighbor’s actions.” S. Rep. No. 107-2, at 10 (2001). Contiguous property owners must perform 

all appropriate inquiry prior to purchasing property. Persons who know, or have reason to know, 

prior to purchase, that the property is or could be contaminated, cannot qualify for the 

contiguous property owner liability protection.3 

The Brownfields Amendments also clarified the CERCLA § 107(b)(3) innocent 

landowner affirmative defense. To qualify as an innocent landowner, a person must meet the 

criteria set forth in section 107(b)(3) and section 101(35). Many of the criteria in section 

101(35) are common elements. CERCLA § 101(35)(A) distinguishes between three types of 

innocent landowners. Section 101(35)(A)(i) recognizes purchasers who acquire property 

without knowledge of the contamination. Section 101(35)(A)(ii) discusses governments 

acquiring contaminated property by escheat, other involuntary transfers or acquisitions, or the 

exercise of eminent domain authority by purchase or condemnation. Section 101(35)(A)(iii) 

covers inheritors of contaminated property. For purposes of this guidance, the term “innocent 

landowner” refers only to the unknowing purchasers as defined in section 101(35)(A)(i). Like 

2 For a discussion of when EPA will consider providing a prospective purchaser with a 

covenant not to sue in light of the Brownfields Amendments, see “Bona Fide Prospective Purchasers and 

the New Amendments to CERCLA,” B. Breen (May 31, 2001). 

3 CERCLA § 107(q)(1)(C) provides that a person who does not qualify as a contiguous 

property owner because he had, or had reason to have, knowledge that the property was or could be 

contaminated when he bought the property, may still qualify for a landowner liability protection as a bona 

fide prospective purchaser, as long as he meets the criteria set forth in CERCLA § 101(40). 

3 
contiguous property owners, persons desiring to qualify as innocent landowners must perform all 

appropriate inquiry prior to purchase and cannot know, or have reason to know, of contamination 

in order to have a viable defense as an innocent landowner. 

III. Discussion 

A party claiming to be a bona fide prospective purchaser, contiguous property owner, or 

section 101(35)(A)(i) innocent landowner bears the burden of proving that it meets the 

conditions of the applicable landowner liability protection.4 Ultimately, courts will determine 

whether landowners in specific cases have met the conditions of the landowner liability 

protections and may provide interpretations of the statutory conditions. EPA offers some general 

guidance below regarding the common elements. This guidance is intended to be used by 

Agency personnel in exercising enforcement discretion. Evaluating whether a party meets these 

conditions will require careful, fact-specific analysis. 

A. Threshold Criteria 

To qualify as a bona fide prospective purchaser, contiguous property owner, or innocent 

landowner, a person must perform “all appropriate inquiry” before acquiring the property. Bona 

fide prospective purchasers and contiguous property owners must, in addition, demonstrate that 

they are not potentially liable or “affiliated” with any other person that is potentially liable for 

response costs at the property. 

1. All Appropriate Inquiry 

To meet the statutory criteria of a bona fide prospective purchaser, contiguous property 

owner, or innocent landowner, a person must perform “all appropriate inquiry” into the previous 

ownership and uses of property before acquisition of the property. CERCLA §§ 101(40)(B), 

107(q)(1)(A)(viii), 101(35)(A)(i),(B)(i). Purchasers of property wishing to avail themselves of a 

landowner liability protection cannot perform all appropriate inquiry after purchasing 

contaminated property. As discussed above, bona fide prospective purchasers may acquire 

property with knowledge of contamination, after performing all appropriate inquiry, and 

maintain their protection from liability. In contrast, knowledge, or reason to know, of 

contamination prior to purchase defeats the contiguous property owner liability protection and 

the innocent landowner liability protection. 

The Brownfields Amendments specify the all appropriate inquiry standard to be applied. 

The Brownfields Amendments state that purchasers of property before May 31, 1997 shall take 

into account such things as commonly known information about the property, the value of the 

property if clean, the ability of the defendant to detect contamination, and other similar criteria. 

CERCLA § 101(35)(B)(iv)(I). For property purchased on or after May 31, 1997, the procedures 

4 CERCLA §§ 101(40), 107(q)(1)(B), 101(35). 

4 
of the American Society for Testing and Materials (“ASTM”), including the document known as 

Standard E1527 - 97, entitled “Standard Practice for Environmental Site Assessments: Phase 1 

Environmental Site Assessment Process,” are to be used. CERCLA § 101(35)(B)(iv)(II). The 

Brownfields Amendments require EPA, not later than January 2004, to promulgate a regulation 

containing standards and practices for all appropriate inquiry and set out criteria that must be 

addressed in EPA’s regulation. CERCLA § 101(35)(B)(ii), (iii). The all appropriate inquiry 

standard will thus be the subject of future EPA regulation and guidance. 

2. Affiliation 

To meet the statutory criteria of a bona fide prospective purchaser or contiguous property 

owner, a party must not be potentially liable or affiliated with any other person who is 

potentially liable for response costs.5 Neither the bona fide prospective purchaser/contiguous 

property owner provisions nor the legislative history define the phrase “affiliated with,” but on 

its face the phrase has a broad definition, covering direct and indirect familial relationships, as 

well as many contractual, corporate, and financial relationships. It appears that Congress 

intended the affiliation language to prevent a potentially responsible party from contracting away 

its CERCLA liability through a transaction to a family member or related corporate entity. EPA 

recognizes that the potential breadth of the term “affiliation” could be taken to an extreme, and 

in exercising its enforcement discretion, EPA intends to be guided by Congress’ intent of 

preventing transactions structured to avoid liability. 

The innocent landowner provision does not contain this “affiliation” language. In order 

5 The bona fide prospective purchaser provision provides, in pertinent part: 

NO AFFILIATION—The person is not—(i) potentially liable, or affiliated with any other 

person that is potentially liable, for response costs at a facility through— (I) any direct or 

indirect familial relationship; or (II) any contractual, corporate, or financial relationship 

(other than a contractual, corporate, or financial relationship that is created by the 

instruments by which title to the facility is conveyed or financed or by a contract for the 

sale of goods or services); or (ii) the result of a reorganization of a business entity that 

was potentially liable. CERCLA § 101(40)(H). 

The contiguous property owner provision provides, in pertinent part: 

NOT CONSIDERED TO BE AN OWNER OR OPERATOR— . . . (ii) the person is not— (I) 

potentially liable, or affiliated with any other person that is potentially liable, for response 

costs at a facility through any direct or indirect familial relationship or any contractual, 

corporate, or financial relationship (other than a contractual, corporate, or financial 

relationship that is created by a contract for the sale of goods or services); or (II) the 

result of a reorganization of a business entity that was potentially liable[.] CERCLA § 

107(q)(1)(A)(ii). 

5
 
to meet the statutory criteria of the innocent landowner liability protection, however, a person 

must establish by a preponderance of the evidence that the act or omission that caused the release 

or threat of release of hazardous substances and the resulting damages were caused by a third 

party with whom the person does not have an employment, agency, or contractual relationship. 

Contractual relationship is defined in section 101(35)(A). 

B. Continuing Obligations 

Several of the conditions a landowner must meet in order to achieve and maintain a 

landowner liability protection are continuing obligations. This section discusses those 

continuing obligations: (1) complying with land use restrictions and institutional controls; (2) 

taking reasonable steps with respect to hazardous substance releases; (3) providing full 

cooperation, assistance, and access to persons that are authorized to conduct response actions or 

natural resource restoration; (4) complying with information requests and administrative 

subpoenas; and (5) providing legally required notices. 

1. Land Use Restrictions and Institutional Controls 

The bona fide prospective purchaser, contiguous property owner, and innocent landowner 

provisions all require compliance with the following ongoing obligations as a condition for 

maintaining a landowner liability protection: 

– 	 the person is in compliance with any land use restrictions established or relied on 

in connection with the response action and 

– 	 the person does not impede the effectiveness or integrity of any institutional 

control employed in connection with a response action. 

CERCLA §§ 101(40)(F), 107(q)(1)(A)(V), 101(35)(A). Initially, there are two important points 

worth noting about these provisions. First, because institutional controls are often used to 

implement land use restrictions, failing to comply with a land use restriction may also impede 

the effectiveness or integrity of an institutional control, and vice versa. As explained below, 

however, these two provisions do set forth distinct requirements. Second, these are ongoing 

obligations and, therefore, EPA believes the statute requires bona fide prospective purchasers, 

contiguous property owners, and innocent landowners to comply with land use restrictions and to 

implement institutional controls even if the restrictions or institutional controls were not in place 

at the time the person purchased the property. 

Institutional controls are administrative and legal controls that minimize the potential for 

human exposure to contamination and protect the integrity of remedies by limiting land or 

6
 

resource use, providing information to modify behavior, or both.6 For example, an institutional 

control might prohibit the drilling of a drinking water well in a contaminated aquifer or 

disturbing contaminated soils. EPA typically uses institutional controls whenever contamination 

precludes unlimited use and unrestricted exposure at the property. Institutional controls are 

often needed both before and after completion of the remedial action. Also, institutional controls 

may need to remain in place for an indefinite duration and, therefore, generally need to survive 

changes in property ownership (i.e., run with the land) to be legally and practically effective. 

Generally, EPA places institutional controls into four categories: 

(1) governmental controls (e.g., zoning); 

(2) proprietary controls (e.g., covenants, easements); 

(3) enforcement documents (e.g., orders, consent decrees); and 

(4) informational devices (e.g., land record/deed notices). 

Institutional controls often require a property owner to take steps to implement the controls, such 

as conveying a property interest (e.g., an easement or restrictive covenant) to another party such 

as a governmental entity, thus providing that party with the right to enforce a land use restriction; 

applying for a zoning change; or recording a notice in the land records. 

Because institutional controls are tools used to limit exposure to contamination or protect 

a remedy by limiting land use, they are often used to implement or establish land use restrictions 

relied on in connection with the response action. However, the Brownfields Amendments 

require compliance with land use restrictions relied on in connection with the response action, 

even if those restrictions have not been properly implemented through the use of an enforceable 

institutional control. Generally, a land use restriction may be considered “relied on” when the 

restriction is identified as a component of the remedy. Land use restrictions relied on in 

connection with a response action may be documented in several places depending on the 

program under which the response action was conducted, including: a risk assessment; a remedy 

decision document; a remedy design document; a permit, order, or consent decree; under some 

state response programs, a statute (e.g., no groundwater wells when relying on natural 

attenuation); or, in other documents developed in conjunction with a response action. 

An institutional control may not serve the purpose of implementing a land use restriction 

for a variety of reasons, including: (1) the institutional control is never, or has yet to be, 

implemented; (2) the property owner or other persons using the property impede the 

effectiveness of the institutional controls in some way and the party responsible for enforcement 

of the institutional controls neglects to take sufficient measures to bring those persons into 

compliance; or (3) a court finds the controls to be unenforceable. For example, a chosen remedy 

might rely on an ordinance that prevents groundwater from being used as drinking water. If the 

local government failed to enact the ordinance, later changed the ordinance to allow for drinking 

6 For additional information on institutional controls, see “Institutional Controls: A Site 

Manager’s Guide to Identifying, Evaluating, and Selecting Institutional Controls at Superfund and RCRA 

Corrective Action Cleanups,” September 2000, (OSWER Directive 9355.0-74FS-P). 

7 
water use, or failed to enforce the ordinance, a landowner is still required to comply with the 

groundwater use restriction identified as part of the remedy to maintain its landowner liability 

protection. Unless authorized by the regulatory agency responsible for overseeing the remedy, if 

the landowner fails to comply with a land use restriction relied on in connection with a response 

action, the owner will forfeit the liability protection and EPA may use its CERCLA authorities to 

order the owner to remedy the violation, or EPA may remedy the violation itself and seek cost 

recovery from the noncompliant landowner. 

In order to meet the statutory criteria of a bona fide prospective purchaser, contiguous 

property owner, or innocent landowner, a party may not impede the effectiveness or integrity of 

any institutional control employed in connection with a response action. See CERCLA §§ 

101(40)(F)(ii), 107(q)(1)(A)(v)(II), 101(35)(A)(iii). Impeding the effectiveness or integrity of an 

institutional control does not require a physical disturbance or disruption of the land. A 

landowner could jeopardize the reliability of an institutional control through actions short of 

violating restrictions on land use. In fact, not all institutional controls actually restrict the use of 

land. For example, EPA and State programs often use notices to convey information regarding 

contamination on site rather than actually restricting the use. To do this, EPA or a State may 

require a notice to be placed in the land records. If a landowner removed the notice, the removal 

would impede the effectiveness of the institutional control. A similar requirement is for a 

landowner to give notice of any institutional controls on the property to a purchaser of the 

property. Failure to give this notice may impede the effectiveness of the control. Another 

example of impeding the effectiveness of an institutional control would be if a landowner applies 

for a zoning change or variance when the current designated use of the property was intended to 

act as an institutional control. Finally, EPA might also consider a landowner’s refusal to assist 

in the implementation of an institutional control employed in connection with the response 

action, such as not recording a deed notice or not agreeing to an easement or covenant, to 

constitute a violation of the requirement not to impede the effectiveness or integrity of an 

institutional control.7 

An owner may seek changes to land use restrictions and institutional controls relied on in 

connection with a response action by following procedures required by the regulatory agency 

responsible for overseeing the original response action. Certain restrictions and institutional 

controls may not need to remain in place in perpetuity. For example, changed site conditions, 

such as natural attenuation or additional cleanup, may alleviate the need for restrictions or 

institutional controls. If an owner believes changed site conditions warrant a change in land or 

resource use or is interested in performing additional response actions that would eliminate the 

need for particular restrictions and controls, the owner should review and follow the appropriate 

regulatory agency procedures prior to undertaking any action that may violate the requirements 

of this provision. 

7 This may also constitute a violation of the ongoing obligation to provide full cooperation, 

assistance, and access. CERCLA §§ 101(40)(E), 107(q)(1)(A)(iv), 101(35)(A). 

8 
2. Reasonable Steps 

a. Overview 

Congress, in enacting the landowner liability protections, included the condition that 

bona fide prospective purchasers, contiguous property owners, and innocent landowners take 

“reasonable steps” with respect to hazardous substance releases to do all of the following: 

- Stop continuing releases, 
 

- Prevent threatened future releases, and 
 

-	 Prevent or limit human, environmental, or natural resource exposure to 
 

earlier hazardous substance releases. 
 

CERCLA §§ 101(40)(D), 107(q)(1)(A)(iii), 101(35)(B)(i)(II).8 Congress included this condition 

as an incentive for certain owners of contaminated properties to avoid CERCLA liability by, 

among other things, acting responsibly where hazardous substances are present on their property. 

In adding this new requirement, Congress adopted an approach that is consonant with traditional 

common law principles and the existing CERCLA “due care” requirement.9 

By making the landowner liability protections subject to the obligation to take 

“reasonable steps,” EPA believes Congress intended to balance the desire to protect certain 

landowners from CERCLA liability with the need to ensure the protection of human health and 

the environment. In requiring reasonable steps from parties qualifying for landowner liability 

protections, EPA believes Congress did not intend to create, as a general matter, the same types 

of response obligations that exist for a CERCLA liable party (e.g., removal of contaminated soil, 

8 CERCLA § 101(40)(D), the bona fide prospective purchaser reasonable steps provision, 

provides: “[t]he person exercises appropriate care with respect to hazardous substances found at the 

facility by taking reasonable steps to— (i) stop any continuing release; (ii) prevent any threatened future 

release; and (iii) prevent or limit human, environmental, or natural resource exposure to any previously 

released hazardous substance.” 

CERCLA § 107(q)(1)(A), the contiguous property owner reasonable steps provision, provides: 

“the person takes reasonable steps to— (I) stop any continuing release; (II) prevent any threatened future 

release; and (III) prevent or limit human, environmental, or natural resource exposure to any hazardous 

substance released on or from property owned by that person.” 

CERCLA § 101(35)(B)(II), the innocent landowner reasonable steps provision, provides: “the 

defendant took reasonable steps to— (aa) stop any continuing release; (bb) prevent any threatened future 

release; and (cc) prevent or limit any human, environmental, or natural resource exposure to any 

previously released hazardous substance.” 

9 See innocent landowner provision, CERCLA § 107(b)(3)(a). 

9 
extraction and treatment of contaminated groundwater).10 Indeed, the contiguous property 

owner provision’s legislative history states that absent “exceptional circumstances . . . , these 

persons are not expected to conduct ground water investigations or install remediation systems, 

or undertake other response actions that would be more properly paid for by the responsible 

parties who caused the contamination.” S. Rep. No. 107-2, at 11 (2001). In addition, the 

Brownfields Amendments provide that contiguous property owners are generally not required to 

conduct groundwater investigations or to install ground water remediation systems. CERCLA § 

107(q)(1)(D).11 Nevertheless, it seems clear that Congress also did not intend to allow a 

landowner to ignore the potential dangers associated with hazardous substances on its property. 

Although the reasonable steps legal standard is the same for the three landowner 

provisions, the obligations may differ to some extent because of other differences among the 

three statutory provisions. For example, as noted earlier, one of the conditions is that a person 

claiming the status of a bona fide prospective purchaser, contiguous property owner, or innocent 

landowner must have “carried out all appropriate inquiries” into the previous ownership and uses 

of the facility in accordance with generally accepted good commercial and customary standards 

and practices. CERCLA §§ 101(40)(B), 107(q)(1)(A)(viii), 101(35)(B). However, for a 

contiguous property owner or innocent landowner, knowledge of contamination defeats 

eligibility for the liability protection. A bona fide prospective purchaser may purchase with 

knowledge of the contamination and still be eligible for the liability protection. Thus, only the 

bona fide prospective purchaser could purchase a contaminated property that is, for example, on 

CERCLA’s National Priorities List12 or is undergoing active cleanup under an EPA or State 

10 There could be unusual circumstances where the reasonable steps required of a bona fide 

prospective purchaser, contiguous property owner, or innocent landowner would be akin to the 

obligations of a potentially responsible party (e.g., the only remaining response action is institutional 

controls or monitoring, the benefit of the response action will inure primarily to the landowner, or the 

landowner is the only person in a position to prevent or limit an immediate hazard). This may be more 

likely to arise in the context of a bona fide prospective purchaser as the purchaser may buy the property 

with knowledge of the contamination. 

11 CERCLA § 107(q)(1)(D) provides: 

GROUND WATER. - With respect to a hazardous substance from one or more sources that 

are not on the property of a person that is a contiguous property owner that enters ground 

water beneath the property of the person solely as a result of subsurface migration in an 

aquifer, subparagraph (A)(iii) shall not require the person to conduct ground water 

investigations or to install ground water remediation systems, except in accordance with 

the policy of the Environmental Protection Agency concerning owners of property 

containing contaminated aquifers, dated May 24, 1995. 

12 The National Priorities List is “the list compiled by EPA pursuant to CERCLA § 105, of 

uncontrolled hazardous substance releases in the United States that are priorities for long-term remedial 

evaluation and response.” 40 C.F.R. § 300.5 (2001). 

10 
cleanup program, and still maintain his liability protection. 

The pre-purchase “appropriate inquiry” by the bona fide prospective purchaser will most 

likely inform the bona fide prospective purchaser as to the nature and extent of contamination on 

the property and what might be considered reasonable steps regarding the contamination - - how 

to stop continuing releases, prevent threatened future releases, and prevent or limit human, 

environmental, and natural resource exposures. Knowledge of contamination and the 

opportunity to plan prior to purchase should be factors in evaluating what are reasonable steps, 

and could result in greater reasonable steps obligations for a bona fide prospective purchaser.13 

Because the pre-purchase “appropriate inquiry” performed by a contiguous property owner or 

innocent landowner must result in no knowledge of the contamination for the landowner liability 

protection to apply, the context for evaluating reasonable steps for such parties is different. That 

is, reasonable steps in the context of a purchase by a bona fide prospective purchaser may differ 

from reasonable steps for the other protected landowner categories (who did not have knowledge 

or an opportunity to plan prior to purchase). Once a contiguous property owner or innocent 

landowner learns that contamination exists on his property, then he must take reasonable steps 

considering the available information about the property contamination. 

The required reasonable steps relate only to responding to contamination for which the 

bona fide prospective purchaser, contiguous property owner, or innocent landowner is not 

responsible. Activities on the property subsequent to purchase that result in new contamination 

can give rise to full CERCLA liability. That is, more than reasonable steps will likely be 

required from the landowner if there is new hazardous substance contamination on the 

landowner’s property for which the landowner is liable. See, e.g., CERCLA § 101(40)(A) 

(requiring a bona fide prospective purchaser to show “[a]ll disposal of hazardous substances at 

the facility occurred before the person acquired the facility”). 

As part of the third party defense that pre-dates the Brownfields Amendments and 

continues to be a distinct requirement for innocent landowners, CERCLA requires the exercise 

of “due care with respect to the hazardous substance concerned, taking into consideration the 

characteristics of such hazardous substance, in light of all the relevant facts and circumstances.” 

CERCLA § 107(b)(3)(a). The due care language differs from the Brownfields Amendments’ 

new reasonable steps language. However, the existing case law on due care provides a reference 

point for evaluating the reasonable steps requirement. When courts have examined the due care 

requirement in the context of the pre-existing innocent landowner defense, they have generally 

concluded that a landowner should take some positive or affirmative step(s) when confronted 

with hazardous substances on its property. Because the due care cases cited in Attachment B 

(see Section III.B.2.b “Questions and Answers,” below) interpret the due care statutory language 

and not the reasonable steps statutory language, they are provided as a reference point for the 

reasonable steps analysis, but are not intended to define reasonable steps. 

The reasonable steps determination will be a site-specific, fact-based inquiry. That 

13 As noted earlier, section 107(r)(2) provides EPA with a windfall lien on the property. 

11 
inquiry should take into account the different elements of the landowner liability protections and 

should reflect the balance that Congress sought between protecting certain landowners from 

CERCLA liability and assuring continued protection of human health and the environment. 

Although each site will have its own unique aspects involving individual site analysis, 

Attachment B provides some questions and answers intended as general guidance on the 

question of what actions may constitute reasonable steps. 

b. Site-Specific Comfort/Status Letters Addressing Reasonable Steps 

Consistent with its “Policy on the Issuance of Comfort/Status Letters,” (“1997 

Comfort/Status Letter Policy”), 62 Fed. Reg. 4,624 (1997), EPA may, in its discretion, provide a 

comfort/status letter addressing reasonable steps at a specific site, upon request. EPA anticipates 

that such letters will be limited to sites with significant federal involvement such that the Agency 

has sufficient information to form a basis for suggesting reasonable steps (e.g., the site is on the 

National Priorities List or EPA has conducted or is conducting a removal action on the site). In 

addition, as the 1997 Comfort/Status Letter Policy provides, “[i]t is not EPA’s intent to become 

involved in typical real estate transactions. Rather, EPA intends to limit the use of . . . comfort 

to where it may facilitate the cleanup and redevelopment of brownfields, where there is the 

realistic perception or probability of incurring Superfund liability, and where there is no other 

mechanism available to adequately address the party’s concerns.” Id. In its discretion, a Region 

may conclude in a given case that it is not necessary to opine about reasonable steps because it is 

clear that the landowner does not or will not meet other elements of the relevant landowner 

liability protection. A sample reasonable steps comfort/status letter is attached to this 

memorandum (see Attachment C). 

The 1997 Comfort/Status Letter Policy recognizes that, at some sites, the state has the 

lead for day-to-day activities and oversight of a response action, and the Policy includes a 

“Sample State Action Letter.” For reasonable steps inquiries at such sites, Regions should 

handle responses consistent with the existing 1997 Comfort/Status Letter Policy. In addition, 

where appropriate, if EPA has had the lead at a site with respect to response actions (e.g., EPA 

has conducted a removal action at the site), but the state will be taking over the lead in the near 

future, EPA should coordinate with the state prior to issuing a comfort/status letter suggesting 

reasonable steps at the site. 

3. Cooperation, Assistance, and Access 

The Brownfields Amendments require that bona fide prospective purchasers, contiguous 

property owners, and innocent landowners provide full cooperation, assistance, and access to 

persons who are authorized to conduct response actions or natural resource restoration at the 

vessel or facility from which there has been a release or threatened release, including the 

cooperation and access necessary for the installation, integrity, operation, and maintenance of 

any complete or partial response action or natural resource restoration at the vessel or facility. 

CERCLA §§ 101(40)(E), 107(q)(1)(A)(iv), 101(35)(A). 

12
 
4. Compliance with Information Requests and Administrative Subpoenas 

The Brownfields Amendments require bona fide prospective purchasers and contiguous 

property owners to be in compliance with, or comply with, any request for information or 

administrative subpoena issued by the President under CERCLA. CERCLA §§ 101(40)(G), 

107(q)(1)(A)(vi). In particular, EPA expects timely, accurate, and complete responses from all 

recipients of section 104(e) information requests. As an exercise of its enforcement discretion, 

EPA may consider a person who has made an inconsequential error in responding (e.g., the 

person sent the response to the wrong EPA address and missed the response deadline by a day), a 

bona fide prospective purchaser or contiguous property owner, as long as the landowner also 

meets the other conditions of the applicable landowner liability protection. 

5. Providing Legally Required Notices 

The Brownfields Amendments subject bona fide prospective purchasers and contiguous 

property owners to the same “notice” requirements. Both provisions mandate, in pertinent part, 

that “[t]he person provides all legally required notices with respect to the discovery or release of 

any hazardous substances at the facility.” CERCLA §§ 101(40)(C), 107(q)(1)(A)(vii). EPA 

believes that Congress’ intent in including this as an ongoing obligation was to ensure that EPA 

and other appropriate entities are made aware of hazardous substance releases in a timely 

manner. 

“Legally required notices” may include those required under federal, state, and local 

laws. Examples of federal notices that may be required include, but are not limited to, those 

under: CERCLA § 103 (notification requirements regarding released substances); EPCRA § 304 

(“emergency notification”); and RCRA § 9002 (notification provisions for underground storage 

tanks). The bona fide prospective purchaser and contiguous property owner have the burden of 

ascertaining what notices are legally required in a given instance and of complying with those 

notice requirements. Regions may require these landowners to self-certify that they have 

provided (in the case of contiguous property owners), or will provide within a certain number of 

days of purchasing the property (in the case of bona fide prospective purchasers), all legally 

required notices. Such self-certifications may be in the form of a letter signed by the landowner 

as long as the letter is sufficient to satisfy EPA that applicable notice requirements have been 

met. Like many of the other common elements discussed in this memorandum, providing legally 

required notices is an ongoing obligation of any landowner desiring to maintain its status as a 

bona fide prospective purchaser or contiguous property owner. 

IV. Conclusion 

Evaluating whether a landowner has met the criteria of a particular landowner provision 

will require careful, fact-specific analysis by the regions as part of their exercise of enforcement 

discretion. This memorandum is intended to provide EPA personnel with some general guidance 

on the common elements of the landowner liability protections. As EPA implements the 

Brownfields Amendments, it will be critical for the regions to share site-specific experiences and 

13
 

information pertaining to the common elements amongst each other and with the Office of Site 

Remediation Enforcement, in order to ensure national consistency in the exercise of the 

Agency’s enforcement discretion. EPA anticipates that its Landowner Liability Protection 

Subgroup, which is comprised of members from various headquarters offices, the Offices of 

Regional Counsel, the Office of General Counsel, and the Department of Justice, will remain 

intact for the foreseeable future and will be available to serve as a clearinghouse for information 

for the regions on the common elements. 

Questions and comments regarding this memorandum or site-specific inquiries should be 

directed to Cate Tierney, in OSRE’s Regional Support Division (202-564-4254, 

Tierney.Cate@EPA.gov), or Greg Madden, in OSRE’s Policy & Program Evaluation Division 

(202-564-4229, Madden.Gregory@EPA.gov). 

V. Disclaimer 

This memorandum is intended solely for the guidance of employees of EPA and the 

Department of Justice and it creates no substantive rights for any persons. It is not a regulation 

and does not impose legal obligations. EPA will apply the guidance only to the extent 

appropriate based on the facts. 

Attachments 

cc:	 Jewell Harper (OSRE) 

Paul Connor (OSRE) 

Sandra Connors (OSRE) 

Thomas Dunne (OSWER) 

Benjamin Fisherow (DOJ) 

Linda Garczynski (OSWER) 

Bruce Gelber (DOJ) 

Steve Luftig (OSWER) 

Earl Salo (OGC) 

EPA Brownfields Landowner Liability Protection Subgroup 

14
 

 

Attachment A 

Chart Summarizing Applicability of “Common Elements” to Bona Fide Prospective 

Purchasers, Contiguous Property Owners, and Section 101(35)(A)(i) Innocent Landowners 

Common Element among the 

Brownfields Amendments Landowner Provisions 

Bona Fide 

Prospective 

Purchaser 

Contiguous 

Property 

Owner 

Section 101 

(35)(A)(i) 

Innocent 

Landowner 

All Appropriate Inquiry U U U

No affiliation demonstration U U u

Compliance with land use restrictions and institutional 

controls 

U U U

Taking reasonable steps U U U

Cooperation, assistance, access U U U

Compliance with information requests and administrative 

subpoenas 

U U uu

Providing legally required notices U U uuu

u	 Although the innocent landowner provision does not contain this “affiliation” language, in order 

to meet the statutory criteria of the innocent landowner liability protection, a person must 

establish by a preponderance of the evidence that the act or omission that caused the release or 

threat of release of hazardous substances and the resulting damages were caused by a third party 

with whom the person does not have an employment, agency, or contractual relationship. 

CERCLA § 107(b)(3). Contractual relationship is defined in section 101(35)(A). 

uu	 Compliance with information requests and administrative subpoenas is not specified as a statutory 

criterion for achieving and maintaining the section 101(35)(A)(i) innocent landowner liability 

protection. However, CERCLA requires compliance with administrative subpoenas from all 

persons, and timely, accurate, and complete responses from all recipients of EPA information 

requests. 

uuu	 Provision of legally required notices is not specified as a statutory criterion for achieving and 

maintaining the section 101(35)(A)(i) innocent landowner liability protection. These 

landowners may, however, have notice obligations under federal, state and local laws. 

Common Elements Chart 1 Attachment A 
Attachment B 

Reasonable Steps Questions and Answers 

The “reasonable steps” required of a bona fide prospective purchaser, contiguous 

property owner, or section 101(35)(A)(i) innocent landowner under CERCLA §§ 101(40)(D), 

107(q)(1)(A)(iii), and 101(35)(B)(i)(II), will be a site-specific, fact-based inquiry. Although 

each site will have its own unique aspects involving individual site analysis, below are some 

questions and answers intended to provide general guidance on the question of what actions may 

constitute reasonable steps. The answers provide a specific response to the question posed, 

without identifying additional actions that might be necessary as reasonable steps or actions that 

may be required under the other statutory conditions for each landowner provision (e.g., 

providing cooperation and access). In addition, the answers do not address actions that may be 

required under other federal statutes (e.g., the Resource Conservation and Recovery Act, 42 

U.S.C. § 6901 et seq.; the Clean Water Act, 33 U.S.C. § 1251, et seq.; and the Toxic Substances 

Control Act, 15 U.S.C. § 2601, et seq.), and do not address landowner obligations under state 

statutory or common law.14 

Notification 

Q1: If a person conducts “all appropriate inquiry” with respect to a property where EPA has 

conducted a removal action, discovers hazardous substance contamination on the property that is 

unknown to EPA, and then purchases the property, is notification to EPA or the state about the 

contamination a reasonable step? 

A1: Yes. First, bona fide prospective purchasers may have an obligation to provide notice of 

the discovery or release of a hazardous substance under the legally required notice provision, 

CERCLA § 101(40)(C). Second, even if not squarely required by the notice conditions, 

providing notice of the contamination to appropriate governmental authorities would be a 

reasonable step in order to prevent a “threatened future release” and “prevent or limit . . . 

exposure.” Congress specifically identified “notifying appropriate Federal, state, and local 

officials” as a typical reasonable step. S. Rep. No.107-2, at 11 (2001); see also, Bob’s Beverage 

Inc. v. Acme, Inc., 169 F. Supp. 2d 695, 716 (N.D. Ohio 1999) (failure to timely notify EPA and 

Ohio EPA of groundwater contamination was factor in conclusion that party failed to exercise 

due care), aff’d, 264 F. 3d 692 (6th Cir. 2001). It should be noted that the bona fide prospective 

purchaser provision is the only one of the three landowner provisions where a person can 

purchase property with knowledge that it is contaminated and still qualify for the landowner 

liability protection. 

14 The Brownfields Amendments did not alter CERCLA § 114(a), which provides: 

“[n]othing in this chapter shall be construed or interpreted as preempting any State from imposing any 

additional liability or requirements with respect to the release of hazardous substances within such State.” 

Reasonable Steps Qs & As 1 Attachment B 
Site Restrictions 

Q2: Where a property owner discovers unauthorized dumping of hazardous substances on a 

portion of her property, are site access restrictions reasonable steps? 

A2: Site restrictions are likely appropriate as a first step, once the dumping is known to the 

owner. Reasonable steps include preventing or limiting “human, environmental, or natural 

resource exposure” to hazardous substances. CERCLA §§ 101(40)(D)(iii), 107(q)(1)(A)(iii)(III), 

101(35)(B)(i)(II)(cc). The legislative history for the contiguous property owner provision 

specifically notes that “erecting and maintaining signs or fences to prevent public exposure” may 

be typical reasonable steps. S. Rep. No. 107-2, at 11 (2001); see also, Idylwoods Assoc. v. 

Mader Capital, Inc., 915 F. Supp. 1290, 1301 (W.D.N.Y. 1996) (failure to restrict access by 

erecting signs or hiring security personnel was factor in evaluating due care), aff’d on reh’g, 956 

F. Supp. 410, 419-20 (W.D.N.Y. 1997); New York v. Delmonte, No. 98-CV-0649E, 2000 WL 

432838, *4 (W.D.N.Y. Mar. 31, 2000) (failure to limit access despite knowledge of trespassers 

was not due care). 

Containing Releases or Threatened Releases 

Q3: If a new property owner discovers some deteriorating 55 gallon drums containing unknown 

material among empty drums in an old warehouse on her property, would segregation of the 

drums and identification of the material in the drums constitute reasonable steps? 

A3: Yes, segregation and identification of potential hazards would likely be appropriate first 

steps. Reasonable steps must be taken to “prevent any threatened future release.” CERCLA §§ 

101(40)(D)(ii), 107(q)(1)(A)(iii)(II), 101(35)(B)(i)(II)(bb). To the extent the drums have the 

potential to leak, segregation and containment (e.g., drum overpack) would prevent mishandling 

and releases to the environment. For storage and handling purposes, an identification of the 

potential hazards from the material will likely be necessary. Additional identification steps 

would likely be necessary for subsequent disposal or resale if the material had commercial value. 

Q4: If a property owner discovers that the containment system for an on-site waste pile has 

been breached, do reasonable steps include repairing the breach? 

A4: One of the reasonable steps obligations is to “stop any continuing release.” CERCLA §§ 

101(40)(D)(i), 107(q)(1)(A)(iii)(I), 101(35)(B)(i)(II)(aa). In general, the property owner should 

take actions to prevent contaminant migration where there is a breach from an existing 

containment system. Both Congress and the courts have identified maintenance of hazardous 

substance migration controls as relevant property owner obligations. For example, in discussing 

contiguous property owners’ obligations for migrating groundwater plumes, Congress identified 

“maintaining any existing barrier or other elements of a response action on their property that 

Reasonable Steps Qs & As 2 Attachment B 
address the contaminated plume” as a typical reasonable step. S. Rep. No. 107-2, at 11 (2001); 

see also, Franklin County Convention Facilities Auth. v. American Premier Underwriters, Inc., 

240 F.3d 534, 548 (6th Cir. 2001) (failure to promptly erect barrier that allowed migration was 

not due care); United States v. DiBiase Salem Realty Trust, No. Civ. A. 91-11028-MA, 1993 

WL 729662, *7 (D. Mass. Nov. 19, 1993) (failure to reinforce waste pit berms was factor in 

concluding no due care), aff’d, 45 F.3d 541, 545 (1st Cir. 1995). In many instances, the current 

property owner will have responsibility for maintenance of the containment system. If the 

property owner has responsibility for maintenance of the system as part of her property purchase, 

then she should repair the breach. In other instances, someone other than the current landowner 

may have assumed that responsibility (e.g., a prior owner or other liable parties that signed a 

consent decree with EPA and/or a State). If someone other than the property owner has 

responsibility for maintenance of the containment system pursuant to a contract or other 

agreement, then the question is more complicated. At a minimum, the current owner should give 

notice to the person responsible for the containment system and to the government. Moreover, 

additional actions to prevent contaminant migration would likely be appropriate. 

Q5: If a bona fide prospective purchaser buys property at a Superfund site where part of the 

approved remedy is an asphalt parking lot cap, but the entity or entities responsible for 

implementing the remedy (e.g., PRPs who signed a consent decree) are unable to repair the 

deteriorating cap (e.g., the PRPs are now defunct), should the bona fide prospective purchaser 

repair the deteriorating asphalt parking lot cap as reasonable steps? 

A5: Taking “reasonable steps” includes steps to: “prevent or limit any human, environmental, or 

natural resource exposure to any previously released hazardous substances.” CERCLA §§ 

101(40)(D)(iii), 107(q)(1)(A)(iii)(III), 101(35)(B)(i)(II)(cc). In this instance, the current 

landowner may be in the best position to identify and quickly take steps to repair the asphalt cap 

and prevent additional exposures. 

Remediation 

Q6: If a property is underlain by contaminated groundwater emanating from a source on a 

contiguous or adjacent property, do reasonable steps include remediating the groundwater? 

A6: Generally not. Absent exceptional circumstances, EPA will not look to a landowner whose 

property is not a source of a release to conduct groundwater investigations or install groundwater 

remediation systems. Since 1995, EPA’s policy has been that, in the absence of exceptional 

circumstances, such a property owner did not have “to take any affirmative steps to investigate 

or prevent the activities that gave rise to the original release” in order to satisfy the innocent 

landowner due care requirement. See May 24, 1995 “Policy Toward Owners of Property 

Containing Contaminated Aquifers.” (“1995 Contaminated Aquifers Policy”). In the 

Brownfields Amendments, Congress explicitly identified this policy in noting that reasonable 

Reasonable Steps Qs & As 3 Attachment B 
steps for a contiguous property owner “shall not require the person to conduct groundwater 

investigations or to install groundwater remediation systems,” except in accordance with that 

policy. See CERCLA § 107(q)(1)(D). The policy does not apply “where the property contains a 

groundwater well, the existence or operation of which may affect the migration of contamination 

in the affected area.” 1995 Contaminated Aquifers Policy, at 5. In such instances, a site-specific 

analysis should be used in order to determine reasonable steps. In some instances, reasonable 

steps may simply mean operation of the groundwater well consistent with the selected remedy. 

In other instances, more could be required. 

Q7: If a protected landowner discovers a previously unknown release of a hazardous substance 

from a source on her property, must she remediate the release? 

A7: Provided the landowner is not otherwise liable for the release from the source, she should 

take some affirmative steps to “stop the continuing release,” but EPA would not, absent unusual 

circumstances, look to her for performance of complete remedial measures. However, notice to 

appropriate governmental officials and containment or other measures to mitigate the release 

would probably be considered appropriate. Compare Lincoln Properties, Ltd. v. Higgins, 823 F. 

Supp. 1528, 1543-44 (E.D. Calif. 1992) (sealing sewer lines and wells and subsequently 

destroying wells to protect against releases helped establish party exercised due care); Redwing 

Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1508 (11th Cir. 1996) (timely development 

of maintenance plan to remove tar seeps was factor in showing due care was exercised); New 

York v. Lashins Arcade Co., 91 F.3d 353 (2nd Cir. 1996) (instructing tenants not to discharge 

hazardous substances into waste and septic systems, making instructions part of tenancy 

requirements, and inspecting to assure compliance with this obligation, helped party establish 

due care); with Idylwoods Assoc. v. Mader Capital, Inc., 956 F. Supp. 410, 419-20 (W.D.N.Y. 

1997) (property owner’s decision to do nothing resulting in spread of contamination to 

neighboring creek was not due care); Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 

F.3d 321, 325 (7th Cir. 1994) (party that “made no attempt to remove those substances or to take 

any other positive steps to reduce the threat posed” did not exercise due care). As noted earlier, 

if the release is the result of a disposal after the property owner’s purchase, then she may be 

required to undertake full remedial measures as a CERCLA liable party. Also, if the source of 

the contamination is on the property, then the property owner will not qualify as a contiguous 

property owner but may still qualify as an innocent landowner or a bona fide prospective 

purchaser. 

Site Investigation 

Q8: If a landowner discovers contamination on her property, does the obligation to take 

reasonable steps require her to investigate the extent of the contamination? 

A8: Generally, where the property owner is the first to discover the contamination, she should 

Reasonable Steps Qs & As 4 Attachment B 
take certain basic actions to assess the extent of contamination. Absent such an assessment, it 

will be very difficult to determine what reasonable steps will stop a continuing release, prevent a 

threatened future release, or prevent or limit exposure. While a full environmental investigation 

may not be required, doing nothing in the face of a known or suspected environmental hazard 

would likely be insufficient. See, e.g., United States v. DiBiase Salem Realty Trust, 1993 WL 

729662, *7 (failure to investigate after becoming aware of dangerous sludge pits was factor in 

concluding party did not exercise due care), aff’d, 45 F.3d 541, 545 (1st Cir. 1995); United States 

v. A&N Cleaners and Launderers, Inc., 854 F. Supp. 229 (S.D.N.Y. 1994) (dictum) (failing to 

assess environmental threats after discovery of disposal would be part of due care analysis). 

Where the government is actively investigating the property, the need for investigation by the 

landowner may be lessened, but the landowner should be careful not to rely on the fact that the 

government has been notified of a hazard on her property as a shield to potential liability where 

she fails to conduct any investigation of a known hazard on her property. Compare New York v. 

Lashins Arcade Co., 91 F.3d 353, 361 (2nd Cir. 1996) (no obligation to investigate where RI/FS 

already commissioned) with DiBiase Salem Realty Trust, 1993 WL 729662, *7 (State 

Department of Environmental Quality knowledge of hazard did not remove owner’s obligation 

to make some assessment of site conditions), aff’d, 45 F.3d 541, 545 (1st Cir. 1995). 

Performance of EPA Approved Remedy 

Q9: If a new purchaser agrees to assume the obligations of a prior owner PRP, as such 

obligations are defined in an order or consent decree issued or entered into by the prior owner 

and EPA, will compliance with those obligations satisfy the reasonable steps requirement? 

A9: Yes, in most cases compliance with the obligations of an EPA order or consent decree will 

satisfy the reasonable steps requirement so long as the order or consent decree comprehensively 

addresses the obligations of the prior owner through completion of the remedy. It should be 

noted that not all orders or consent decrees identify obligations through completion of the 

remedy and some have open-ended cleanup obligations. 

Reasonable Steps Qs & As 5 Attachment B 
Attachment C 

Sample Federal Superfund Interest Reasonable Steps Letter 

The sample comfort/status letter below may be used in the exercise of enforcement 

discretion where EPA has sufficient information regarding the site to have assessed the 

hazardous substance contamination and has enough information about the property to make 

suggestions as to steps necessary to satisfy the “reasonable steps” requirement. In addition, like 

any comfort/status letter, the letters should be provided in accordance with EPA’s 

“Comfort/Status Letter Policy.” That is, they are not necessary or appropriate for purely 

private real estate transactions. Such letters may be issued when: (1) there is a realistic 

perception or probability of incurring Superfund liability, (2) such comfort will facilitate the 

cleanup and redevelopment of a brownfield property, (3) there is no other mechanism to 

adequately address the party’s concerns, and (4) EPA has sufficient information about the 

property to provide a basis for suggesting reasonable steps. 

[Insert Addressee] 

Re: [Insert Name or Description of Property] 

Dear [insert name of requester]: 

I am writing in response to your letter dated [insert date] concerning the property 

referenced above. As you know, the [insert name] property is located within or near the [insert 

name of CERCLIS site.] EPA is currently [insert description of action EPA is taking or 

plans to take and any contamination problem.] 

The [bona fide prospective purchaser, contiguous property owner, or innocent 

landowner] provision states that a person meeting the criteria of [insert section] is protected 

from CERCLA liability. [For bona fide prospective purchaser only, it may be appropriate to 

insert following language: To the extent EPA’s response action increases the fair market 

value of the property, EPA may have a windfall lien on the property. The windfall lien is 

limited to the increase in fair market value attributable to EPA’s response action, capped 

by EPA’s unrecovered response costs.] (I am enclosing a copy of the relevant statutory 

provisions for your reference.) To qualify as a [bona fide prospective purchaser, contiguous 

property owner, or section 101(35)(A)(i) innocent landowner], a person must (among other 

requirements) take “reasonable steps” with respect to stopping continuing releases, preventing 

threatened future releases, and preventing or limiting human, environmental, or natural resources 

exposure to earlier releases. You have asked what actions you must take, as the [owner or 

prospective owner] of the property, to satisfy the “reasonable steps” criterion. 

As noted above, EPA has conducted a [insert most recent/relevant action to 

“reasonable steps” inquiry taken by EPA] at [insert property name] and has identified a 

Sample Federal Superfund Interest 

Reasonable Steps Letter 1 Attachment C 
number of environmental concerns. Based on the information EPA has evaluated to date, EPA 

believes that, for an owner of the property, the following would be appropriate reasonable steps 

with respect to the hazardous substance contamination found at the property: 

[insert paragraphs outlining reasonable steps with respect to each environmental concern] 

This letter does not provide a release from CERCLA liability, but only provides 

information with respect to reasonable steps based on the information EPA has available to it. 

This letter is based on the nature and extent of contamination known to EPA at this time. If 

additional information regarding the nature and extent of hazardous substance contamination at 

[insert property name] becomes available, additional actions may be necessary to satisfy the 

reasonable steps criterion. In particular, if new areas of contamination are identified, you should 

ensure that reasonable steps are undertaken. As the property owner, you should ensure that you 

are aware of the condition of your property so that you are able to take reasonable steps with 

respect to any hazardous substance contamination at or on the property. 

Please note that the [bona fide prospective purchaser, contiguous property owner, or 

innocent landowner] provision has a number of conditions in addition to those requiring the 

property owner to take reasonable steps. Taking reasonable steps and many of the other 

conditions are continuing obligations of the [bona fide prospective purchaser, contiguous 

property owner, or section 101(35)(A)(i) innocent landowner]. You will need to assess 

whether you satisfy each of the statutory conditions for the [bona fide prospective purchaser, 

contiguous property owner, or innocent landowner] provision and continue to meet the 

applicable conditions. 

EPA hopes this information is useful to you. If you have any questions, or wish to 

discuss this letter, please feel free to contact [insert EPA contact and address]. 

Sincerely, 

[insert name of EPA contact] 

Sample Federal Superfund Interest 

Reasonable Steps Letter 2 Attachment C 
B 

C

D

Appendix B 

Top Ten Questions to Ask Before 

Buying a Superfund Site
 
 

 

 

 

 

NOVEMBER 2006 

EPA-330-F-06-001 

Top 10 Questions to Ask When 


Buying a Superfund Site 


Office of Enforcement and Compliance Assurance Office of Site Remediation Enforcement 

This brochure provides answers to questions that are useful to ask when 

acquiring federal Superfund sites. Its purpose is to support the reuse of 

sites by informing parties about the opportunities and issues associated 

with their reuse. For purposes of this brochure, site is defined as any 

property where a hazardous substance has come to be located. Thus, even 

a property not the source of the release of hazardous substances can be part 

of the site if hazardous substances come to be located on or under the 

property. 

The 2002 Superfund liability protections1

 are designed to be selfimplementing, meaning that a prospective purchaser does not need to 

obtain approval from the U.S. Environmental Protection Agency (“EPA”) prior to purchasing a federal 

Superfund site where an EPA action is ongoing or has been completed. However, EPA strongly recommends 

that prospective purchasers contact the appropriate EPA Regional office2

 prior to purchase of a federal 

Superfund site or a property within a site to discuss the cleanup status of the site and other site-related issues. 

1. WHY IS BUYING A SUPERFUND SITE OR PROPERTIES WITHIN A SUPERFUND SITE A GOOD 

IDEA? 

LOCATION, LOCATION, LOCATION. Many federal Superfund sites have advantageous locations that are 

accessible to urban infrastructure and the public. Some federal, state, and local government agencies offer 

grants, loans, and tax incentives to encourage development of formerly contaminated properties and their 

surrounding areas. In addition, the scope of contamination at many federal Superfund sites is well documented, 

which minimizes future surprises regarding undiscovered contamination. 

Federal Superfund sites throughout the country have been transformed into major shopping centers, business 

parks, residential subdivisions, and recreational facilities. Many more federal Superfund sites are being 

revitalized for use by small businesses. A large number of federal Superfund sites are suitable for revitalization 

even during the cleanup. 

Revitalizing federal Superfund sites has an additional significant environmental benefit. A study conducted by 

George Washington University has estimated that for every formerly contaminated acre revitalized, 4.5 acres of 

undeveloped land are preserved.3 

1

 The most recent Superfund liability protections were included in an amendment to the Superfund law, the Small 

Business Liability Relief and Brownfields Revitalization Act (commonly referred to as the Brownfields Amendments), 

which were enacted on January 11, 2002. 2

 Information on contacting EPA’s Regional Offices is available on EPA’s Web site at 

http://www.epa.gov/epahome/whereyoulive.htm#regiontext. 3

 Deason, Sherk, and Carroll, The George Washington University. Public Policies and Private Decisions Affecting 

the Redevelopment of Brownfields: An Analysis of Critical Factors, Relative Weights and Areal Differentials, prepared for 

U.S. EPA, Sept. 2001. 

1 

 

 

 

 

 

 

 

Top 10 Questions to Ask When Buying a Superfund Site
 

2. HOW CAN I FIND OUT MORE INFORMATION ABOUT THE STATUS OF A SITE AND IF IT’S 

SAFE FOR REUSE? 

THE VAST MAJORITY OF FEDERAL SUPERFUND SITES ARE PROTECTIVE OF HUMAN HEALTH AND THE 

ENVIRONMENT FOR CERTAIN TYPES OF REUSE ACTIVITIES AFTER THEY ARE CLEANED UP. And many are 

protective for reuse during cleanup. However, not all site cleanups are protective for all uses. Superfund 

cleanups may be designed to accommodate specific uses. For example, a property cleaned to accommodate 

commercial/industrial uses may be protective for uses such as manufacturing, shopping or office complexes. In 

addition, a large number of federal Superfund sites, or portions of the sites, are suitable for revitalization during 

the cleanup so that the property can be used in a timely manner. 

Fact sheets describing a site’s history, current cleanup status, and 

who to contact for more information are available on EPA’s Web 

site at http://cfpub.epa.gov/supercpad/cursites/srchsites.cfm. 

EPA also offers many tools to help facilitate the reuse of a federal 

Superfund site including: 

•	 comfort/status letters4 

•	 site-specific reuse fact sheets and 

•	 Ready for Reuse (“RfR”) Determinations 

Portions of the Industri-plex site in Woburn, MA, 

have been redeveloped as public road extensions, a 

Residence Inn, a Target retail store, and a multimodal Regional Transportation Center. 

Some EPA regional offices have or are developing prospective purchaser inquiry procedures and will schedule 

conference calls or meetings with prospective purchasers to discuss whether the proposed use of the site is 

compatible with an ongoing cleanup, any current or future property restrictions on the site, resolution of 

potential liens, and other matters. 

3. HOW DO I IDENTIFY ALL OF THE PARTIES I HAVE TO DEAL WITH TO BUY THE SITE 

OR PROPERTY WITHIN THE SITE AND WHAT IS EPA’S ROLE? 

THERE IS NO SIMPLE SOLUTION TO IDENTIFY ALL PARTIES ASSOCIATED WITH A FEDERAL SUPERFUND SITE. As 

with the purchase of any property, negotiations to buy a federal Superfund site begin with the current owner 

who can be identified through title or tax records. In almost all instances, EPA does not own the site being 

cleaned up. Generally, EPA’s involvement relates to addressing the following questions: 

1.	 What is the current status of a site’s cleanup and what are EPA’s future anticipated actions? 

2.	 Is the proposed redevelopment compatible with a site’s cleanup and with the existing and potential 

future property restrictions? Note: EPA does not offer guarantees of compatibility. 

3.	 Is the prospective purchaser aware of the applicable landowner liability protections under CERCLA? 

4.	 How can EPA work with the prospective purchaser to settle or resolve any EPA liens?5 

EPA is willing to work with prospective purchasers to clarify issues, including the existence and satisfaction of 

EPA liens and property use restrictions. 

4 A comfort/status letter is a letter intended to combat the stigma and concerns about liability associated with 

contaminated sites by clarifying the cleanup status and likelihood of EPA involvement at a site. 

5 See Question 8 below for more information regarding EPA liens. 

2 

Top 10 Questions to Ask When Buying a Superfund Site 

4. IF I BUY THE PROPERTY, WILL I BE RESPONSIBLE FOR PAST OR FUTURE CLEANUP 

COSTS?

IN MOST CASES A PROSPECTIVE PURCHASER WILL NOT BE RESPONSIBLE FOR PAST OR FUTURE FEDERAL 

SUPERFUND CLEANUP COSTS FOR EXISTING CONTAMINATION THAT IS PRESENT ON THE PROPERTY WHEN THE 

SITE IS PURCHASED. New purchasers are protected from owner or 

operator liability under the federal Superfund law so long as the 

new purchaser meets the definition of a “bona fide prospective 

purchaser” (“BFPP”) under 42 U.S.C. § 9601(40). This BFPP 

provision states that a purchaser who acquires a federal Superfund 

site or other contaminated property after January 11, 2002, and who 

complies with eight statutory criteria will not incur federal 

Superfund liability as an owner of the property. (See exhibit “Eight 

Criteria for Managing Liability as a BFPP” on the following page.) 

A new purchaser must achieve and maintain BFPP status for as long 

as potential liability exists to remain protected from federal 

Superfund liability for the existing contamination at the site. 

Potential liability exists for as long as hazardous substances remain Once contaminated with coal tar and creosote, the 

on the property and/or the statute of limitations on cost recovery Reilly Tar & Chemical site in St. Louis Park, 

actions is in effect. Although a BFPP is not personally liable, the Minnesota now boasts a park, a residential 

development, and a pond that provides wildlife property itself could be subject to a lien as a result of EPA incurring habitats. costs to clean up the site.6

Ten Criteria for All Appropriate Inquiry 

• Inquiry by environmental professional 

• Interviews with past/present owners 

• Review of historical sources of information 

• Search for recorded cleanup liens 

• Review of federal, state and local records 

• Visual inspection 

• Specialized knowledge of BFPP 

• Relationship of purchase price to value of property 

• Commonly known/reasonably ascertainable 

information 

• Obviousness of presence of contamination 

Some of the criteria for obtaining BFPP status 

must be satisfied prior to acquiring a site. Other 

criteria for maintaining BFPP status are ongoing 

obligations that must be met after purchase of 

the site. One example of a threshold criterion 

that must be satisfied prior to purchase is that a 

BFPP must perform ‘all appropriate inquiries’ 

(“AAI”) concerning environmental conditions at 

the site. The Final Rule for AAI, which sets 

forth standards for satisfying the criterion, is 

effective on November 1, 2006. Information on 

how to comply with this regulation is available 

on EPA’s Web site at 

http://www.epa.gov/brownfields/regneg.htm. 

(See exhibit “Ten Criteria for All Appropriate 

Inquiry” on this page.) 

It is important to note that new purchasers could 

become liable for environmental contamination if they interfere with the existing remedy, exacerbate existing 

contamination, or cause a new release of hazardous substances. EPA is willing to discuss potential liability 

issues, including qualifications for BFPP status, with prospective purchasers and their lenders. Please note that 

EPA cannot give prospective purchasers legal advice. Legal advice must be sought from private legal counsel, 

but EPA can explain the available liability protections. 

6 See Question 8 below for more information regarding liens.

3 

Top 10 Questions to Ask When Buying a Superfund Site 

As previously stated, a purchaser who achieves and maintains BFPP status is not responsible for existing 

contamination, but may nonetheless want to voluntarily clean up a site, rather than wait for the potentially 

responsible party or the government to do it. 

When appropriate, EPA will enter into an agreement with a BFPP willing to perform a cleanup action at a site. 

EPA is currently developing a model work agreement for BFPPs. 

There are many reasons why a BFPP would want to perform the cleanup: 

• faster cleanup: a BFPP may be able to clean up a site more quickly 

• better coordination: a BFPP may be better able to coordinate cleanup activities into its reuse and/or 

redevelopment plans 

• purchasing incentives: a BFPP may be 

able to negotiate a lower purchase price Eight Criteria for Managing Liability as a BFPP from the seller by undertaking cleanup 

work that the seller would otherwise be • All disposal of hazardous substances occurred before responsible for acquisition. 

• The person made all appropriate inquiries about the • windfall lien settlements: a BFPP may property before acquisition. be able to settle a windfall lien (see • The person provided all legally required notices with Question 8) by agreeing to perform all or respect to discovery or release of any hazardous part of a necessary cleanup and/or substances at the facility. 

• The person exercises appropriate care with respect to 

hazardous substances found at the facility by taking • cost recovery: a BFPP may be entitled to 

reasonable steps to prevent releases. cost recovery from responsible parties 

• The person provides full cooperation and access to under appropriate circumstances 

EPA. 

• The person complies with land restrictions in

connection with the response action and does not 5. DO I NEED A DOCUMENT FROM EPA

impede the effectiveness of institutional controls. CONFIRMING I HAVE BFPP STATUS? • The person complies with requests for information

and subpoenas. 

• The person is not potentially liable or affiliated with a NO, THE BFPP PROVISION IS DESIGNED TO BE 

potentially responsible party (“PRP”). SELF-IMPLEMENTING which means that a 

prospective purchaser may achieve, and then 

after the purchase maintain, BFPP status 

without obtaining approval or oversight from 

EPA. In appropriate circumstances, however, EPA may issue a status/comfort letter to prospective purchasers 

or their lenders to describe: the cleanup status of a site; anticipated future cleanup actions, if any; the available 

liability protection provisions; the site-specific reasonable steps a purchaser should take with respect to the 

appropriate care criteria; and the status of any EPA liens. 

EPA strongly recommends that prospective purchasers contact the appropriate EPA Regional office prior to 

purchase of a federal Superfund site to discuss the cleanup status of the site and other site-related issues. For 

EPA Regional contact information, go to http://www.epa.gov/superfund/programs/recycle/contact.htm. In 

addition, EPA strongly encourages prospective purchasers to contact the state environmental protection agency 

where the site is located to discuss potential state issues such as liability and additional cleanup. 

4 

 

 

 

 

 

Top 10 Questions to Ask When Buying a Superfund Site
 

6. AS THE PROPERTY OWNER, WILL I BE RESPONSIBLE FOR ONGOING OR FUTURE 

CLEANUP ACTIONS AT THE SITE? 

NO, A PROPERTY OWNER WITH BFPP STATUS WILL GENERALLY NOT BE RESPONSIBLE FOR THE ONGOING OR 

7 FUTURE CLEANUP ACTIONS, BEYOND RESOLVING ANY APPLICABLE LIENS. However, certain responsibilities 

associated with BFPP status may involve actions to prevent or mitigate releases. For example, in certain 

circumstances, BFPPs may need to take reasonable steps to stop continuing releases, prevent threatened future 

releases, and prevent or limit human, environmental, or natural resource exposure to earlier hazardous substance 

releases. This could include actions such as erecting or maintaining perimeter fences, removing drums, or 

creating containment berms, to fulfill appropriate care obligations. For general information about appropriate 

care and reasonable steps to prevent releases, go to 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elem-ref.pdf. 

7. ARE THERE LIMITATIONS ON WHAT I CAN DO AT THE SITE, AND IF SO HOW CAN I FIND 

OUT WHETHER ANY PROPERTY RESTRICTIONS ARE IN EFFECT AND WHAT THEY ARE? 

THERE MAY BE LIMITS ON USES OF THE SITE OR PROPERTIES WITHIN THE SITE. The statutory criteria for 

maintaining BFPP status include not impeding the integrity or effectiveness of institutional controls (“ICs”) and 

complying with all land use restrictions. Accordingly, prospective purchasers must determine whether any 

temporary, permanent, or future use restrictions are or will be placed on 

the site during cleanup (EPA calls these use restrictions ‘institutional 

controls’) and how they may affect their plans for the site property. 

Prospective purchasers must also determine if engineered controls, such 

as a clay cap or monitoring wells, limit what they can do at the site 

property. 

Prospective purchasers can find out whether any restrictions apply to the 

site property by contacting EPA’s Regional office, the state 

environmental agency and/or the local government, and by talking to the 

current owner. Prospective purchasers can also find out this information 

by performing all appropriate inquiries as described in Question 4 above 

and at http://www.epa.gov/brownfields/regneg.htm. By learning whether 

any restrictions apply to the site property, and what they are, prospective 

purchasers can determine how their plans for the site property are 

affected. 

Enforcement of property restrictions established as part of a cleanup (e.g., restricting site property for 

commercial uses only) is normally overseen by the state or local government. EPA (or the state) may also 

conduct periodic reviews to examine how the cleanup is functioning (typically every five years) and whether it 

remains protective. 

To ensure that BFPPs maintain their liability protections, it is important that all the property restrictions are 

followed and that the BFPP’s use of the site does not adversely affect or impede the cleanup. In addition, 

BFPPs may be asked to implement appropriate property restrictions after they purchase the site property, so 

EPA encourages them to inquire about property restrictions before they purchase the site. A BFPP may 

purchase a site before EPA has made a final cleanup decision and, therefore, EPA may be unable to predict what 

property restrictions are appropriate and will need to be implemented in the future. 

7 See Question 8 for a discussion on liens. 

Davie Landfill in Broward County, Florida has 

been redeveloped into Vista View Park, which 

includes walking, horseback riding, and bike trails; 

a picnic area; and a catch-and-release fishing 

5 

 

 

 

Top 10 Questions to Ask When Buying a Superfund Site
 

8. DOES EPA USE LIENS THAT COULD AFFECT ME IF I ACQUIRE A SITE OR PROPERTY 

WITHIN A SITE AND HOW CAN I RESOLVE OR SETTLE AN EPA LIEN? 

EPA USES TWO TYPES OF LIENS THAT MAY AFFECT SITE PROPERTY: SUPERFUND LIENS AND WINDFALL LIENS. 

A “Superfund Lien” entitles EPA to recover cleanup costs that the Agency incurred from the property owner. A 

“Windfall Lien” is potentially applicable to a site property if the owner is a BFPP. The Windfall Lien is 

designed to prevent an entity from realizing an unfair windfall from the purchase of a property that has been 

cleaned up using taxpayer dollars. EPA’s potential cost recovery under a Windfall Lien is limited to the 

increase in fair market value of the property attributable to cleanup or the United States’ unrecovered response 

costs, whichever is less. BFPPs should contact their EPA Regional office regarding the existence of a lien or 

EPA’s future intentions to perfect a lien on the property. 

The MDI Site in Houston, Texas is located two miles east of downtown and is near an environmental justice community. EPA 

and the Department of Justice worked with the bankruptcy trustee to ensure that the purchaser of the site committed to perform 

the on-site cleanup work. This was the first settlement through which a BFPP agreed to perform the cleanup work at a 

Superfund site. 

Both of these liens can be released or waived upon satisfaction before the purchase of the site. The satisfaction 

amount may be negotiated with EPA and would be embodied in a settlement agreement. EPA may seek cash 

consideration, performance of work, or a combination of such consideration in connection with the lien releases 

and waivers. Because EPA liens affect the total value of the property, lien settlement negotiations may need to 

include EPA, the current property owner, and the BFPP. Often the liens can be resolved or settled concurrently 

because both the Superfund Lien and the Windfall Lien draw from the same available equity in a property. In 

addition, EPA may also issue a status/comfort letter to prospective purchasers or their lenders to describe the 

status of any EPA liens. 

EPA has issued guidance, a model settlement document, and a sample comfort/status letter on Windfall Liens 

that can be found on EPA’s Web site at 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/interim-windfall-lien.pdf. 

A FAQs fact sheet on Windfall Liens is available on EPA’s Web site at 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/interim-windfall-lien-faq.pdf. 

9. COULD I ENCOUNTER PROBLEMS WHEN I TRY TO GET FINANCING TO BUY SITE 

PROPERTY OR BORROW FOR IMPROVEMENTS AND HOW CAN EPA HELP? 

CHANGES TO THE FEDERAL SUPERFUND LAW ADDRESSED MANY LENDER CONCERNS, BUT PROSPECTIVE 

PURCHASERS MIGHT STILL EXPERIENCE PROBLEMS. In the past, lenders were reluctant to provide financing for 

the purchase of federal Superfund sites because of concerns about: 

6 

 

 

 

 

Top 10 Questions to Ask When Buying a Superfund Site
 

•	 lender liability 

•	 potential liability of the owner affecting the owner’s
 

ability to repay the loan and 

•	 the impact of the contamination on the value of the site 

property that secures the loan 

These concerns are diminishing for several reasons. A 1996 

amendment to the federal Superfund law protects lenders from 

federal Superfund liability when the lenders comply with certain 

statutory requirements. In particular, the lenders may not 

participate in the management of the facility. 

The Town of Londonderry, New Hampshire has 

Use of environmental insurance policies has increasingly	 experienced an upsurge in economic activity with
 

the redevelopment of the Tinkham Garage site. alleviated lenders’ concerns about financial risks at federal 

Superfund sites. The passage of time and increased reuse of 

brownfields and federal Superfund sites are demonstrating to lenders the significant financial value that these 

properties have and the potentially low risks of financing their purchase and redevelopment. 

In addition, the 2002 amendments to the federal Superfund law which provide for BFPP status for new buyers 

may provide assurance to lenders because borrowers will not be liable and their ability to repay the lender will 

not be affected. 

EPA has many tools to help alleviate lenders’ concerns about financing contaminated properties, including 

guidance documents, comfort/status letters, BFPP work agreements, and Ready for Reuse Determinations. 

EPA’s willingness to work with buyers and their lenders makes the acquisition of federal Superfund properties 

more feasible than ever before. 

10. WHAT CAN EPA DO TO HELP A PROSPECTIVE PURCHASER DECIDE, AND CONVINCE 

LENDERS, TENANTS, AND OTHERS, THAT BUYING AND RE-USING A SUPERFUND SITE IS 

A GOOD IDEA? 

EPA HAS TOOLS THAT CAN BE USED TO DEMONSTRATE THAT BUYING OR USING A FEDERAL SUPERFUND SITE 

CAN BE A GOOD OPPORTUNITY. Some of these tools include: 

•	 BFPP ‘Doing Work’ Agreements - EPA may enter into 

a settlement agreement with a BFPP who wishes to 

perform part or all of a cleanup. The agreement provides 

for EPA oversight and may satisfy part or all of any 

windfall lien. 

•	 Lien Settlements - EPA is willing to enter into 

negotiations and settlement agreements to resolve lien 

issues and facilitate reuse. 

•	 Status/Comfort Letters - EPA may issue status letters or 

comfort letters that address the following: 

o	 status of the site 

o	 future anticipated actions at the site 

o	 available liability protections 

7 

The Town of Arlington, Tennessee acquired the 

Arlington Blending & Packaging site in 2004 after 

EPA issued a comfort letter and Ready for Reuse 

Determination. Today the site is an active 

neighborhood park. 
 

 

 

Top 10 Questions to Ask When Buying a Superfund Site
 

o	 reasonable steps that a purchaser should take to stop any on-going releases and prevent future 

releases at sites where EPA has enough information about the site to make suggestions as to 

such steps and 

o	 the status of EPA liens 

•	 Ready for Reuse Determinations - EPA may also issue a Ready for Reuse Determination to affirm that 

the site’s conditions are protective of human health and the environment for specified uses. 

•	 Discussions - EPA Regional staff are often willing to talk with or meet with a prospective purchaser, 

sellers, lenders, and other stakeholders to discuss the issues critical to the successful purchase and reuse 

of a federal Superfund site. Providing examples of other federal Superfund sites that were successfully 

redeveloped and are now in reuse can also reassure local citizens and stakeholders of revitalization 

opportunities. 

•	 Partial Deletions – While total cleanup of a site may take many years, many sites on the National 

Priorities List include portions that have been cleaned up and may be available for productive use. 

These portions may be partially deleted from the National Priorities List if EPA makes a determination 

that no further response work is required, the state concurs, and necessary institutional controls are in 

place. Any person, including individuals, businesses, entities, states, local governments, and other 

Federal agencies, may submit a petition requesting a partial deletion. A partial deletion of a portion of a 

site from the National Priorities List can help to increase the site’s marketability. Please note: EPA 

Superfund liens may still apply to the deleted parcel. For more information on partial deletions visit 

http://www.epa.gov/superfund/action/postconstruction/deletion.htm. 

•	 Site Reuse Fact Sheets – The Superfund Redevelopment Initiative Web site at 

http://www.epa.gov/superfund/programs/recycle/ provides summary information about federal 

Superfund sites that have been reused. Detailed fact sheets for some sites are also available and may 

include data on economic impacts and environmental and social benefits resulting from the reuse of 

federal Superfund sites. 

Information about many of these tools can also be found on EPA’s Cleanup Enforcement Web site at 

http://www.epa.gov/compliance/cleanup/redevelop/landowner.html. 

Disclaimer: This document is provided solely as general information to highlight certain aspects of a more 

comprehensive program. It does not provide legal advice, have any legally binding effect, or expressly or 

implicitly create, expand, or limit any legal rights, obligations, responsibilities, expectations, or benefits for any 

person. This document is not intended as a substitute for reading the statute or the guidances described above. 

It is the prospective purchaser’s sole responsibility to ensure that its proposed use does not interfere with or 

impede the site’s remedy or protectiveness. EPA does not offer any guarantees or warranties as to the 

compatibility of a proposed use with the cleanup remedy. It is also the purchaser’s sole responsibility to 

maintain liability protection status as a bona fide prospective purchaser. 

8 

 

Appendix C 

CERCLA Liability and Local Government
 

Acquisitions and Other Activities
 
United States Office of Enforcement and March 2011 

Environmental Protection Agency Compliance Assurance EPA-330-F-11-003 

CERCLA Liability and Local 

Government Acquisitions 

and Other Activities 

Office of Site Remediation Enforcement 

Local governments can play an important role in facilitating the cleanup and redevelopment of 

properties contaminated by hazardous substances. In particular, by acquiring contaminated 

properties, local governments have an opportunity to evaluate and assess public safety needs and 

promote redevelopment projects that will protect and improve the health, environment, and 

economic well-being of their communities. 

One impediment to local government acquisition of contaminated property is concern about 

potential liability for the cleanup costs under the Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980, also known as “Superfund” or “CERCLA,” 42 U.S.C. 

§§ 9601-9675. 

This fact sheet addresses CERCLA liability issues for local governments and summarizes key 

statutory provisions and requirements. 1 It is intended to assist local governments by identifying 

CERCLA liability issues and protections that may be applicable to local governments as they 

consider involvement at contaminated properties. 

The U.S. Environmental Protection Agency (EPA) recommends that local governments refer to 

the statutory language of CERCLA, the regulations at 40 C.F.R. Part 300 (known as the 

“National Contingency Plan”), and relevant EPA guidance (referenced at the end of this 

document) for more detail. EPA’s Regional offices 

2 also may be able to provide information and 

assistance to local governments considering acquisition of contaminated properties. EPA also 

encourages local governments to consult with their state environmental protection agency and 

legal counsel prior to taking any action to acquire, cleanup, or redevelop contaminated property. 

What is CERCLA? 

CERCLA outlines EPA’s authority for cleaning up properties contaminated with hazardous 

substances regardless of whether the properties are in use or abandoned. Additionally, CERCLA 

establishes a strict liability system for determining who can be held liable for the costs of 

cleaning up contaminated properties. CERCLA also provides EPA with robust enforcement 

1 A local government also may have obligations and/or be potentially liable under other environmental statutes such 

as the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992 (RCRA) or state laws. 

2 For contact information, see http://www.epa.gov/aboutepa/postal.html#regional. 
authorities to compel cleanups and recover EPA’s response and enforcement costs incurred at 

these properties. Properties addressed under CERCLA authorities are commonly known as 

“Superfund sites.” 

CERCLA also includes authority for EPA to provide grant funding for the assessment and 

cleanup of brownfield sites. CERCLA § 101(39)(A) defines a brownfield site as “real property, 

the expansion, redevelopment, or reuse of which may be complicated by the presence or 

potential presence of a hazardous substance, pollutant, or contaminant.” Many of the properties 

that local governments may be interested in acquiring may qualify as brownfield sites. 

For more general information about, and an overview of, CERCLA, please see EPA’s website at 

http://www.epa.gov/superfund/policy/cercla.htm. 

What are the various ways local governments become involved at 

contaminated properties? 

Local governments may become involved with contaminated properties in a number of ways, 

many of which present opportunities to facilitate cleanup or redevelopment. The ways include: 

Providing incentives to promote redevelopment (i.e., zoning, tax increment financing, 

etc.); 

Responding to an emergency on the property; 
 

Transferring of tax liens; 
 

Collaborating with the current property owner;
 

Leasing of the property by the municipality;
 

Acquiring the property and “simultaneously” transferring it to a third party; 

Acquiring the property with subsequent transfer to a third party; 

Acquiring the property and managing it through a “land bank”; or 

Acquiring the property for long-term use. 

Can a local government be liable under CERCLA? 

Yes. CERCLA is a strict liability statute that holds potentially responsible parties (PRPs) jointly 

and severally liable, without regard to fault, for cleanup costs incurred in response to the release 

or threatened release of hazardous substances. Under CERCLA § 107, a person, including a 

local government, may be considered a PRP 3 if the person: 

Is the current owner or operator of the contaminated property;
 

Owned or operated the property at the time of the disposal of the hazardous substance;
 

Arranged for the hazardous substances to be disposed of or treated, or transported for
 

disposal or treatment; or 

Transported the hazardous substances to the property. 

3 According to CERCLA, federally recognized tribes are not included as PRPs. 

2 
A local government that falls into one of the classes of PRPs described above may be potentially 

liable under CERCLA. Fortunately, CERCLA includes liability exemptions, affirmative 

defenses, and protections that may apply to local governments. Additionally, EPA has 

enforcement discretion guidance and site-specific tools that may address concerns about 

potential CERCLA liability. 

Is a local government liable under CERCLA if it responds to an emergency on 

a contaminated property? 

Local units of government, especially fire, health, and public safety departments, are often the 

first responders to emergencies and other dangerous situations at contaminated properties in their 

communities. So as not to interfere with these activities, CERCLA § 107(d)(2) provides that 

state or local governments will not be liable for “costs or damages as a result of actions taken in 

response to an emergency created by a release or threatened release of a hazardous substance by 

or from property owned by another party.” Note: This protection does not apply in cases where 

the local government is grossly negligent or intentionally engages in misconduct. CERCLA § 

107(d)(2). Negligence and intentional misconduct are fact-specific determinations. 

In addition, CERCLA § 123 authorizes EPA to reimburse local governments for the costs of 

temporary emergency measures taken in response to releases within their jurisdiction. These 

temporary measures must be “necessary to prevent or mitigate injury to human health or the 

environment associated with the release or threatened release of any hazardous substance, 

pollutant, or contaminant.” This reimbursement is to give financial assistance to government 

entities that do not have a budget allocated for emergency response and cannot otherwise provide 

adequate response measure. The amount of the reimbursement may not exceed $25,000 for a 

single response. 

For more information on CERCLA § 123 reimbursements, please see EPA’s website at 

http://www.epa.gov/ceppo/web/content/lawsregs/lgrover.htm. 

What CERCLA liability protections are available to local governments if they 

acquire contaminated property? 

CERCLA contains liability exemptions, affirmative defenses, and protections which may apply 

to a local government when it: 

Acquires contaminated property involuntarily by virtue of its function as a sovereign, 

CERCLA § 101(20)(D);
 

Qualifies for a third party defense or innocent landowner liability protection, CERCLA 

§§ 107(b)(3), 101(35)(A); 

Qualifies as a bona fide prospective purchaser (BFPP) when it acquires the 

contaminated property, CERCLA §§ 101(40), 107(r)(1); or 

Is conducting or has completed a cleanup of a contaminated property in compliance 

with a state cleanup program, CERCLA § 128(b). 

3 
Each of these is discussed below in further detail. 

Key CERCLA Provisions 

● – Could apply to local 

governments 

○ – Could apply to local 

governments under 

certain circumstances 

Methods of Property Acquisition 

Tax Foreclosure Bankruptcy Escheat E

minent D

o

main 

PurchaseInheritance or Bequest Abandon

ment 

Gift/Donation 

Involuntary Acquisition 

§ 101(20)(D) 

● ● ● ○ ● 

Bona Fide Prospective 

Purchaser Protection 

§§ 101(40) and 107(r)(1) ● ● ● ● ● ● ● ●

Third Party and 

Innocent Landowner 

Defenses 

§§ 107(b)(3) and 

101(35)(A) 

● ● ○ ● 

Enforcement Bar 

§ 128(b) 

● ● ● ● ● ● ● ●

The method or type of property acquisition by a local government will play a critical role in the 

application of liability exemptions, affirmative defenses, or protections. Although most often 

applied in the purchase and gift/donation context, BFPP status is available for the majority of 

property acquisitions. Note: In cases where it is unclear whether the involuntary acquisition 

exemption, affirmative defenses, or liability protections are sufficient, EPA encourages the local 

government to achieve and maintain BFPP status to increase certainty that it will not be liable 

under CERCLA. 

4
 
What is the meaning of “involuntary acquisition”?

CERCLA § 101(20)(D) 4 provides that a unit of state or local government will not be considered 

an owner or operator of contaminated property (and thus is exempt from potential CERCLA 

liability as a PRP) if the state or local government acquired ownership or control involuntarily. 

This provision includes a non-exhaustive list of examples of involuntary acquisitions, including 

obtaining property through bankruptcy, tax delinquency, abandonment, or “other circumstances 

in which the government entity involuntarily acquires title by virtue of its function as sovereign.” 

However, it is important to note that this exemption will not apply to any state or local 

government that caused or contributed to the release or threatened release of a hazardous 

substance from the facility. 

For purposes of EPA enforcement, EPA considers an involuntary acquisition or transfer to 

include situations “in which the government’s interest in, and ultimate ownership of, a specific 

asset exists only because the conduct of a non-governmental party...gives rise to a statutory or 

common law right to property on behalf of the government.” 5 Moreover, EPA acknowledges 

that tax foreclosure and other acquisitions by government entities often require some affirmative 

or volitional act by the local government. 6 Therefore, a government entity does not have to be 

completely passive during the acquisition in order for the acquisition of property to be 

considered involuntary under CERCLA. 7 Instead, EPA considers an acquisition to be 

involuntary if the government’s interest in, and ultimate ownership of, the property exists only 

because the actions of a non-governmental party give rise to the government’s legal right to 

control or take title to the property. For example, although a local government might be required 

to engage in certain discretionary or volitional actions to acquire title to a property through tax 

delinquency foreclosure or abandonment per state statute, EPA would consider the acquisition 

involuntary. 8 

For more information on state and local government involuntary acquisition, please see EPA’s 

website at http://www.epa.gov/compliance/cleanup/revitalization/local-acquis.html. 

How does a local government become a bona fide prospective purchaser 

(BFPP)? 

A local government, whose potential liability is based solely on the fact that it knowingly 

purchased a contaminated property and is, therefore, considered the current owner or operator, 

will not be liable under CERCLA if it achieves and maintains BFPP status. BFPP status may be 

4 CERCLA § 101(35)(A)(ii) also discusses involuntary acquisitions for a unit of state or local government in the 

context of the innocent landowner defense pursuant to CERCLA § 101(35)(A). 

5 Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action 

(EPA/OSRE/OSWER, 10/20/1995) at 3. 

6 Id. at 4. 

7 Id. 

8 Id. 

5 
achieved even when the buyer has knowledge of the contamination on the property at the time of 

purchase. Moreover, EPA encourages local governments to achieve and maintain BFPP status in 

cases where it is unclear whether involuntary acquisition, affirmative defenses, or other liability 

protections may be sufficient to avoid CERCLA liability. 

CERCLA §§ 101(40) and 107(r)(1) provide that a BFPP is a person or tenant of a person who 

acquired the property after January 11, 2002 and meets the following threshold criteria: 

All Appropriate Inquiries (AAI) were performed prior to purchase of the property 

pursuant to CERCLA § 101(35)(B); 

All disposal of hazardous substances occurred before the party acquired the property; 

and 

The party has “no affiliation” with a liable or potentially liable party. 

CERCLA §§ 101(40)(C)-(G) provide additional criteria for maintaining BFPP status. These 

continuing obligations that must be met after acquisition of the property include: 

Complying with land use restrictions and not impeding the effectiveness of the 

institutional controls; 

Taking “reasonable steps” to prevent the release of hazardous substances. These 

obligations are site-specific, but may include preventing threatened future releases 

and/or limiting exposure to earlier hazardous substance releases. Institutional controls, 

discussed further below, may play a critical role in complying with reasonable steps; 

Providing full cooperation, assistance and access;
 

Complying with information requests and administrative subpoenas; and 
 

Providing legally-required notices.
 

To remain protected from CERCLA liability for the existing contamination while it owns the 

property, a local government must maintain its BFPP status for as long as the potential for 

liability exists. Potential liability exists for as long as contamination remains on the property 

and/or the statute of limitations on CERCLA cost recovery actions is not in effect. It is 

important to note that a local government may become liable for any new contamination that 

may occur, even if the statute of limitations has run on existing contamination. 

Although a BFPP is not liable for the cost of cleaning up the property, the property itself could 

be subject to a “windfall lien”

9 if EPA has spent money cleaning up the property after the BFPP 

acquires it and EPA’s cleanup efforts have increased the fair market value of the property. 

CERCLA § 107(r)(2). The windfall lien is limited to the lesser of EPA’s unrecovered response 

costs or the increase in fair market value attributable to EPA’s cleanup. EPA may be able to file 

a windfall lien on the property if: 

EPA spent money cleaning up the property before acquisition by a BFPP if certain 

requirements are met (i.e., where there are substantial unreimbursed costs); 

EPA’s response action results in a significant increase in the property’s fair market value; 

There are no viable, liable parties from whom EPA could recover its costs; and 

9 CERCLA contains two sections which discuss the ability of the federal government to impose liens. This fact 

sheet addresses the windfall provision of CERCLA § 107(r), but will not discuss liens provided under CERCLA § 

107(l). 

6 
A response action occurs while the property is owned by a person who is exempt (other 

than a BFPP) from CERCLA liability. 

Whether EPA will perfect a windfall lien and prevent a potential windfall in such instances will 

be determined by site-specific circumstances and the equities of the particular situation. 

For more information on AAI, please see EPA’s website at http://www.epa.gov/brownfields/ 

aai/index.htm. For more information on the BFPP liability protection and/or windfall liens, 

please see EPA’s website at http://www.epa.gov/compliance/cleanup/revitalization/bfpp.html. 

What are the requirements for the third party defense or innocent landowner 

defense? 

CERCLA § 107(b)(3) provides a “third party” affirmative defense to CERCLA liability for any 

owner, including local governments, that can prove, by the preponderance of the evidence, that 

the contamination was caused solely by the act or omission of a third party whose act or 

omission did not occur “in connection with a contractual relationship.” Moreover, an entity 

asserting the CERCLA § 107(b)(3) defense must show that: a) it exercised due care with respect 

to the contamination; and b) it took precautions against foreseeable acts or omissions, and the 

consequences thereof by the third party that caused the contamination. 

Congress enacted the Brownfields Amendments 10 and expanded the third party defense by 

creating exclusions to the definition of a contractual relationship. Previously, the deed 

transferring title between a PRP and the new landowner was a “contractual relationship” that 

prevented the new landowner from raising the traditional CERCLA § 107(b)(3) third party 

defense. To promote redevelopment and provide more certainty, Congress also clarified the 

“innocent landowner defense,” which requires an entity to meet the criteria set forth in CERCLA 

§ 101(35), in addition to the requirements of CERCLA § 107(b)(3). CERCLA § 101(35)(A) 

distinguishes three types of innocent landowners: 

Purchasers who acquire property without knowledge of contamination, CERCLA § 

101(35)(A)(i); 

Governments “which acquired the facility by escheat, or through any other involuntary 

transfers or acquisition, or through the exercise of eminent domain authority by 

purchase or condemnation,” CERCLA § 101(35)(A)(ii); and 

Inheritors of contaminated property, CERCLA § 101(35)(A)(iii). 

For more information on qualifying for the innocent landowner defense where the purchaser 

acquired property without knowledge of the contamination, please see EPA’s Interim Guidance 

Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective 

Purchasers, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA 

Liability (Common Elements Guidance) available at 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elem-guide.pdf. 

10 Small Business Liability Relief and Brownfields Revitalization Act (Pub. L. No. 107-118)(hereinafter the 

“Brownfields Amendments”). 

7
 
How do state response programs interact with CERCLA’s enforcement bar?

Many states have established state-specific response programs (for example, State Superfund, 

brownfields, and voluntary cleanup programs). These programs play a critical role in assessing 

and cleaning up the vast majority of our nation’s brownfields and other lower-risk sites. EPA 

supports state response programs through: 

Grant funding to establish and enhance state programs; and 

Non-binding Memoranda of Agreement with individual states that provide general 

enforcement assurances to encourage assessments and cleanups pursuant to a state 

response program. 

CERCLA § 128(b) protects local governments and other parties from EPA enforcement, subject 

to specific exceptions, when they comply with a state response program and are conducting or 

have completed a cleanup of an eligible response site, as defined by CERCLA § 101(41). This 

protection is known as the “enforcement bar.” EPA has entered into non-binding Memoranda of 

Agreement with over 20 states which clarify EPA enforcement intentions under CERCLA at 

sites addressed in compliance with state response programs. It is important to note that while 

CERCLA § 128(b) may prohibit EPA from taking an enforcement action; it does not preclude 

third party litigation. 

For more information about state voluntary cleanup programs and Memoranda of Agreement, 

please see EPA’s website at http://www.epa.gov/compliance/cleanup/revitalization/state.html. 

What should a local government do if it obtains contaminated property from 

a land bank or redevelopment authority? 

EPA recognizes the importance and increased use of land banks and redevelopment agencies as a 

tool to address abandoned or vacant properties, promote smart growth, improve existing land use 

practices, and support local community development. In an effort to make greater use of these 

tools, an increasing number of states and local governments are passing legislation creating land 

banks or redevelopment authorities to acquire, redevelop, and reuse abandoned properties. 

While many abandoned properties that are of interest to land banks and redevelopment 

authorities are not likely to be contaminated, local governments should be aware that 

contamination and potential CERCLA liability may exist. A local government may increase the 

likelihood that the land bank or redevelopment authority is eligible for CERCLA liability 

protection by ensuring that the land bank or redevelopment authority conducts AAI prior to 

acquiring the property. Not only is AAI a critical requirement for obtaining most CERCLA 

landowner liability protections, but it also aids local governments in making informed property 

acquisition decisions. When acquiring abandoned contaminated properties, EPA encourages 

local governments to obtain BFPP status prior to acquisition if it is unclear whether other 

exemptions, affirmative defenses, or liability protections may apply. 

8
 
How does CERCLA liability affect eligibility for federal brownfields grant 

funding? 

EPA brownfields grant money is available to 

eligible entities as defined by CERCLA § 104(k)(1). 

However, these funds cannot be used to pay 

response costs at a brownfield site for which the 

grantee is potentially liable under CERCLA § 107. 

If an applicant for brownfields grant money may be 

potentially liable at the site for which they are 

seeking funds, they must document that they qualify 

for one of CERCLA’s liability protections. 

Therefore, one benefit of being covered by a 

CERCLA liability protection is that it enables 

certain non-liable entities to be potentially eligible 

for federal brownfields grant funding. If a local 

government intends to protect itself against 

CERCLA liability and compete for federal 

brownfields grant funding, it is advisable for the 

local government to evaluate whether it is eligible 

for a grant or become eligible through a liability 

protection before acquiring a brownfield site. 

For more information about obtaining an EPA 

brownfields grant, grant guidelines, and discussions 

TYPES OF BROWNFIELDS FUNDING 

OPPORTUNITIES 

CERCLA §§ 104(k)(4) and (6) authorize 

EPA’s Brownfields Program to provide 

funding in a variety of ways: 

Assessment Grants 

Cleanup Grants 

Revolving Loan Fund Grants 

Job Training Grants 

Training, Research, and 

Technical Assistance Grants 

Targeted Brownfields 

Assessments 

Area-Wide Planning Pilot 

Program 

about the various types of grants that are available, please see EPA’s website at 

http://www.epa.gov/brownfields/grant_info/index.htm. 

What protections exist when municipal solid waste is disposed of at a 

contaminated property? 

Prior to the Brownfield Amendments, entities that disposed of municipal solid waste at 

contaminated properties argued that they should not be liable for the cleanup of contamination 

that was originally and primarily caused by industrial polluters. To address this issue, the 

Brownfield Amendments included CERCLA § 107(p) to create a qualified exemption from 

CERCLA liability for certain residential, small business, and non-profit generators of municipal 

waste at sites on CERCLA’s National Priorities List. However, this exemption does not apply to 

municipalities who owned or operated a site. 

For more information on the municipal solid waste exemption and EPA’s guidance on the 

exemption, please see EPA’s website at http://www.epa.gov/compliance/resources/ 

policies/cleanup/superfund/interim-msw-exempt.pdf. 

9
 
What steps might a local government take at a contaminated property to 

protect human health and the environment and ensure the integrity of a 

cleanup? 

When contamination remains on a property during or 

after cleanup activities, institutional controls may be 

used alone or in combination with engineered 

controls to ensure protection of human health and the 

environment. Generally, institutional controls are 

designed to limit land or resource use (e.g., 

prohibitions on residential use or extraction of ground 

water) and to ensure the integrity of engineered 

controls (e.g., restrictions on excavating soils on or in 

the vicinity of a landfill cap). 

As with engineered controls, institutional controls 

must be maintained, monitored, and evaluated for as 

long as contamination remains on the property at 

levels that do not allow for unrestricted use and 

unlimited exposure. 

WHAT IS AN 

INSTITUTIONAL CONTROL? 

An institutional control is a legal or 

administrative restriction on the 

use of, or access to, a contaminated 

property to protect: 

1) the health of both humans and 

the environment; and 

2) ongoing cleanup activities and 

to ensure viability of the 

engineered controls. 

There are four categories of institutional controls: 

Proprietary Controls (e.g., easement, real covenant, statutory covenant) 

Governmental Controls (e.g., zoning, building permit, land use ordinance) 

Enforcement and Permit Tools (e.g., consent decree, permit, order) 

Informational Devices (e.g., deed notice, government advisory, state registry) 

Whether or not a local government asserts BFPP status, it may play a key role in implementing, 

monitoring, and enforcing certain institutional controls – particularly for those it has the legal 

authority to implement or enforce. A local government also may work proactively with 

developers, prospective buyers and tenants, and other parties to ensure that institutional control 

requirements are understood and properly integrated into the planning and future reuse of the 

property. 

If institutional controls are already in place on a particular property, it is important for local 

governments to understand the obligations the institutional controls impose and to consider how 

those obligations might be viewed by future owners, developers and property users. In some 

situations, EPA or the state may be willing to modify existing institutional controls to facilitate 

the appropriate reuse of the property as long as the engineered controls component of the cleanup 

will not be compromised and remains protective of human health and the environment. 

For more information about institutional controls issues, please see EPA’s website at 

http://www.epa.gov/superfund/policy/ic/index.htm. 

10
 
CERCLA Liability and Local Government Acquisition of 

Contaminated Property: 

Key Documents 

Local 

Government 

Issue 

CERCLA 

Provision Relevant EPA Documents or Guidance (if any) 

Involuntary 

Acquisition 

§ 101(20)(D) • Policy on Interpreting CERCLA Provisions Addressing Lenders and 

Involuntary Acquisitions by Government Entities (EPA/OSRE, 6/30/1997) 

• Policy on CERCLA Enforcement Against Lenders and Government Entities 

that Acquire Property Involuntarily (EPA/DOJ, 9/22/2005) 

• Municipal Immunity from CERCLA Liability for Property Acquired 

through Involuntary State Action (EPA/OSRE/OSWER, 10/20/1995) 

• Fact Sheet: The Effect of Superfund on Involuntary Acquisitions of 

Contaminated Property by Government Entities (EPA/OSRE, 12/31/1995) 

Third Party 

and Innocent 

Landowner 

Defenses 

§§ 107(b)(3), 

101(35)(A)(ii) 

• Interim Guidance Regarding Criteria Landowners Must Meet in Order to 

Qualify for Bona Fide Prospective Purchasers, Contiguous Property Owner, 

or Innocent Landowner Limitations on CERCLA Liability ("Common 

Elements") (EPA/OSRE, 3/6/2003) 

Bona Fide 

Prospective 

Purchaser 

§ 101(40) and 

§ 107(r) 

• Interim Guidance Regarding Criteria Landowners Must Meet in Order to 

Qualify for Bona Fide Prospective Purchasers, Contiguous Property Owner, 

or Innocent Landowner Limitations on CERCLA Liability ("Common 

Elements") (EPA/OSRE, 3/6/2003) 

• Issuance of CERCLA Model Agreement and Order on Consent for Removal 

Action by a Bona Fide Prospective Purchaser (OSRE/USDOJ, 11/27/2006) 

• Enforcement Discretion Guidance Regarding the Applicability of the Bona 

Fide Prospective Purchaser Definition in CERCLA § 101(40) to Tenants 

(OSRE/OSWER, 1/19/2009) 

• Enforcement Discretion Guidance Regarding the Applicability of the Bona 

Fide Prospective Purchaser Definition in CERCLA Section 101(40) to 

Tenants: Frequently Asked Questions (OSRE, 11/1/2009) 

Windfall 

Liens 

§ 107(r) • Interim Enforcement Discretion Policy concerning Windfall Liens Under 

Section 107(r) of CERCLA (EPA/DOJ, 7/16/2003) 

• Windfall Lien Guidance: Frequently Asked Questions (OSRE, 4/1/2008) 

• Windfall Lien Administrative Procedures (OSRE, 1/8/2008) 

11
 
Local 

Government 

Issue 

CERCLA 

Provision Relevant EPA Documents or Guidance (if any) 

Brownfield 

Grants 

§ 104(k)(4) and 

(6) 

• Brownfields Assessment Pilot/Grants at 

http://epa.gov/brownfields/assessment_grants.htm 

• Revolving Loan Fund Pilot/Grants at http://epa.gov/brownfields/rlflst.htm 

• Cleanup Grants at http://epa.gov/brownfields/cleanup_grants.htm 

• Area-Wide Planning Pilot Program at 

http://www.epa.gov/brownfields/areawide_grants.htm 

• Brownfield Grant Guidelines Frequently Asked Questions at 

http://www.epa.gov/brownfields/proposal_guides/faqpguid.htm 

Institutional 

Controls 

§§ 101(40)(F), 

107(q)(1)(A)(V) 

• Institutional Controls: A Citizen's Guide to Understanding Institutional 

Controls at Superfund, Brownfields, Federal Facilities, Underground 

Storage Tank, and Resource Conservation and Recovery Act Cleanups 

(EPA/OSWER, 2/2005) 

• Institutional Controls: A Guide to Implementing, Maintaining, and 

Enforcing Institutional Controls at Contaminated Sites (EPA Interim Final 

Draft 11/2010) 

• Institutional Controls: A Site Manager's Guide to Identifying, Evaluating 

and Selecting Institutional Controls at Superfund and RCRA Corrective 

Action Cleanups (EPA/OSWER, 9/2000) 

State 

Voluntary 

Cleanups and 

Memoranda 

§§ 101(41), 

128 

• To see state-specific voluntary cleanup programs Memoranda of 

Agreement, please see 

http://www.epa.gov/brownfields/state_tribal/moa_mou.htm 

of Agreement 

Contact Information 

If you have any questions about this fact sheet, please contact Cecilia De Robertis of EPA’s 

Office of Site Remediation Enforcement at 202-564-5132 or derobertis.cecilia@epa.gov. 

Disclaimer: This document is provided solely as general information to highlight certain 

aspects of a more comprehensive program. It does not provide legal advice, have any legally 

binding effect, or expressly or implicitly create, expand, or limit any legal rights, obligations, 

responsibilities, expectations, or benefits for any person. This document is not intended as a 

substitute for reading the statute or the guidance documents described in this document. It is the 

local government’s sole responsibility to ensure that it obtains and retains liability protections. 

EPA does not offer any guarantees or warranties for or related to acquisition of a contaminated 

property or formerly contaminated property. It is also the local government’s sole responsibility 

to maintain liability protection status as a contiguous property owner, bona fide prospective 

purchaser, or innocent land owner. 

12
 
Appendix D 

Brownfields Enforcement and Land Revitalization 

Policy and Guidance Documents 
 

 

 

Appendix D 

Brownfields Enforcement and Land Revitalization 

Policy and Guidance Documents
 

The following documents are available on the cleanup enforcement website at 

http://www.epa.gov/compliance/cleanup/revitalization/index.html. 

ALL APPROPRIATE INQUIRIES 

Standards and Practices for All Appropriate Inquiries; Final Rule, November 1, 2005 

Final rule detailing the standards and practices for all appropriate inquiries (AAI). The rule establishes specific 

regulatory requirements and standards for conducting AAI into the previous ownership and uses of a property for the 

purposes of meeting the AAI provisions necessary to qualify for certain landowner liability protections under 

Superfund. The standards and practices also will be applicable to persons conducting site characterization and 

assessments with the use of grants awarded by EPA. 

To access online: http://www.epa.gov/brownfields/aai/index.htm. 

BONA FIDE PROSPECTIVE PURCHASER (BFPP) 

Enforcement Discretion Guidance Regarding the Applicability of the Bona Fide Prospective 

Purchaser Definition in CERCLA 101(40) to Tenants, January 14, 2009 

Provides guidance on how EPA intends to exercise its enforcement discretion with regard to the bona fide 

prospective purchaser provision. Specifically, it recognizes the important role that leasehold interests play in 

facilitating the cleanup and reuse of brownfields and other contaminated properties. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/bfpp-tenantmem.pdf 

Interim Guidance Regarding Criteria Landowners Must Meet in Order to Quality for Bona Fide Prospective 

Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability 

(“Common Elements”), March 6, 2003 

Provides general information regarding the common elements of the landowner liability protections contained in the 

2002 Brownfields Amendments to Superfund. These common elements include the requirements of “all appropriate 

inquiry” (AAI), demonstrating no affiliation with a liable party, and continuing obligations. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elemguide.pdf 

“Common Elements” Guidance Reference Sheet, March 6, 2003 

Highlights the main points made in EPA’s March 2003 “Common Elements” guidance document concerning the 

conditional liability provided to bona fide prospective purchasers, contiguous property owners, and innocent 

landowners by the 2002 Brownfield Amendments. The document focuses on the shared factors required to qualify 

for the above Superfund liability protections. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elemref.pdf 

D-1 
 

 

 

 

 

 

 

Issuance of CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide 

Prospective Purchaser, November 27, 2006 

Provides a model agreement and order on consent for those bona fide prospective purchasers (BFPP) who are 

required to perform a removal action. This model addresses those situations where there is a federal interest or 

where the work is complex or significant in extent, such as where EPA will oversee the removal action or where the 

removal work will exceed the “reasonable steps to prevent releases” obligation upon which BFPP status depends. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/bfpp-ra-mem.pdf 

Bona Fide Prospective Purchases and the New Amendments to CERCLA, May 31, 2002 

Describes when EPA will consider providing a bona fide prospective purchaser (BFPP) with a liability limitation 

despite having knowledge of contamination pursuant to changes made to the Superfund statute by the 2002 

Brownfield Amendments. The Amendments list certain requirements that must be met to achieve BFPP status, dispense with the prior need for Prospective Purchaser Agreements (PPA) (except in limited circumstances), and 

provide for EPA’s recovery of any windfall that a purchaser may receive. 

To access online: http://www.epa.gov/compliance/resources/ policies/cleanup/superfund/bonf-pp-cerclamem.pdf 

BROWNFIELDS GRANTS 

Regional Determinations Regarding Which Sites are Not “Eligible Response Sites” under CERCLA 

Section 101(41)(C)(i), as Added by the Small Business Liability Relief and Brownfields Revitalization 

Act, March 6, 2003 

Provides background information on the definition of an eligible response site, how the regions make a 

determination of whether a site fits this definition, and what the implications of this determination are. This 

document also provides the regions with guidance for making these determinations in conjunction with future site 

assessment decisions and for sites with past site assessment determinations. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/reg-determ-smallbus-mem.pdf 

COMFORT LETTERS 

Interim Enforcement Discretion Policy Concerning “Windfall Liens” Under Section 107(r) of CERCLA, July 

16, 2003 

Discusses EPA and the Department of Justice’s (DOJ) interim policy implementation of the new CERCLA 107(r) 

windfall lien provision contained in the 2002 Brownfields Amendments. This document lists the factors that EPA 

will use to determine whether to file a lien, in addition to discussing how EPA will settle the liens and the possibility 

of EPA issuing comfort letters to or making agreements with bona fide prospective purchaser (BFPPs). 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/interim-windfalllien.pdf 

Interim Guidance Regarding Criteria Landowners Must Meet in Order to Quality for Bona Fide Prospective 

Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability 

(“Common Elements”), March 6, 2003 

Provides general information regarding the common elements of the landowner liability protections contained in the 

2002 Brownfields Amendments to Superfund. These common elements guidance includes a discussion of the 

reasonable steps letter. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elemguide.pdf 

D-2 
 

 

 

 

 

 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elemref.pdf 

Comfort/Status Letters for RCRA Brownfields Properties, February 5, 2001 

Addresses the use of comfort/status letters at Resource Conservation and Recovery Act (RCRA) properties, where 

the letters may facilitate the cleanup and reuse of brownfield sites, where there exists a real probability or perception 

that EPA may initiate a cleanup, or where there is no other adequate mechanism to assuage a party’s concerns. This 

document also includes four sample letters. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/rcra/comfort-rcra-brwnmem.pdf 

Policy on the Issuance of Comfort/Status Letters, November 8, 1996 

Discusses EPA’s policy on the use of comfort/status letters to provide the recipient party with any releasable 

information that EPA has pertaining to a property, as well as interpret what the information means and the likelihood 

or current plans for EPA to undertake any Superfund action. A letter is used in order to facilitate the cleanup and 

redevelopment of a brownfield site if there is a realistic perception or probability of incurring liability or if there is 

no other mechanism available to address the recipient’s concerns. This document also contains four sample 

comfort/status letters. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/comfort-letmem.pdf 

CONTAMINATED AQUIFERS 

Final Policy Toward Owners of Property Containing Contaminated Aquifers, May 24, 1995 

Details EPA’s position concerning owners of property that contains an aquifer that has become contaminated as a 

result of subsurface migration. In certain circumstances, EPA will not take enforcement action against a landowner 

whose property has become contaminated through subsurface migration through no fault of their own, their agent, or 

their employee. In addition, EPA may consider de minimis settlements which would protect the landowner from 

contribution suits. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/contamin-aquirpt.pdf 

CONTIGUOUS PROPERTY OWNERS 

Memorandum transmitting Model CERCLA Section 107(q)(3) Contiguous Property Owner Assurance 

Letter, November 9, 2009 

This memorandum discusses and transmits a model contiguous property owner assurance letter to be used in 

accordance with a January 2004 interim guidance regarding contiguous property owners. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/cpo-assure-mod-ltrmem.pdf 

Contiguous Property Owner Guidance Reference Sheet, February 5, 2004 

The reference sheet summarizes the important points and requirements of the January 13, 2004 guidance document 

“Interim Enforcement Discretion Guidance Regarding Contiguous Property Owners,” which addresses liability 

limitations. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/contig-propfaq.pdf 

D-3 
 

 

 

Interim Enforcement Discretion Guidance Regarding Contiguous Property Owners, January 13, 2004 

Addresses the addition of liability protection to contiguous property owners to Superfund by the 2002 Brownfields 

Amendments. The document discusses the criteria property owners need to meet, how the Amendments apply to 

current and former owners, the relationship between the Amendments and EPA’s Residential Homeowner Policy 

and Contaminated Aquifers Policy, and mechanisms that EPA may use to resolve landowner liability concerns. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/contig-prop.pdf 

Interim Guidance Regarding Criteria Landowners Must Meet in Order to Quality for Bona Fide Prospective 

Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability 

(“Common Elements”), March 6, 2003 

Provides general information regarding the common elements of the landowner liability protections contained in the 

2002 Brownfields Amendments to Superfund. These common elements include the requirements of “all appropriate 

inquiry” (AAI), demonstrating no affiliation with a liable party, and continuing obligations. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elemguide.pdf 

“Common Elements” Guidance Reference Sheet, March 6, 2003 

Highlights the main points made in EPA’s March 2003 “Common Elements” guidance document concerning the 

conditional liability provided to bona fide prospective purchasers, contiguous property owners, and innocent 

landowners by the 2002 Brownfield Amendments. The document focuses on the shared factors required to qualify 

for the above Superfund liability protections. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elemref.pdf 

DE MICROMIS 

Revised Settlement Policy and Contribution Waiver Language Regarding Exempt De Micromis and NonExempt De Micromis Parties, November 6, 2002 

Provides a revision to EPA and DOJ’s policy regarding settlements with de micromis parties at Superfund sites in 

light of the codification of this policy in the 2002 Brownfields Amendments. This document also revises the model 

contribution waiver language that has been used in CERCLA agreements to waive private contribution claims 

against parties that contributed only very small amounts of waste. In addition, this document contains five attachments of model language. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/wv-exmptdmicro-mem.pdf 

ENVIRONMENTALLY RESPONSIBLE, REDEVELOPMENT & REUSE 

Environmentally Responsible, Redevelopment & Reuse (“ER3”) Frequently Asked Questions and Answers, 

December 31, 2005 

Provides a list of frequently asked questions and answers regarding EPA’s Environmentally Responsible, 

Redevelopment and Reuse (ER3) Initiative. This program seeks to encourage redevelopment in a sustainable way 

that prevents future environmental hazards through incentives, assistance, and education. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/er3-faqs-05.pdf 

D-4 
 

 

INNOCENT LANDOWNERS 

Interim Guidance Regarding Criteria Landowners Must Meet in Order to Quality for Bona Fide Prospective 

Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability 

(“Common Elements”), March 6, 2003 

Provides general information regarding the common elements of the landowner liability protections contained in the 

2002 Brownfields Amendments to Superfund. These common elements include the requirements of “all appropriate 

inquiry” (AAI), demonstrating no affiliation with a liable party, and continuing obligations. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elemguide.pdf

 “Common Elements” Guidance Reference Sheet, March 6, 2003 

Highlights the main points made in EPA’s March 2003 “Common Elements” guidance document concerning the 

conditional liability provided to bona fide prospective purchasers, contiguous property owners, and innocent 

landowners by the 2002 Brownfield Amendments. The document focuses on the shared factors required to qualify 

for the above Superfund liability protections. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elemref.pdf 

INVOLUNTARY ACQUISITION 

CERCLA Liability and Local Government Acquisitions and Other Activities, March 2011 

This fact sheet is intended to be a resource for local governments concerned about incurring potential CERCLA 

liability as a result of activities to facilitate cleanup and redevelopment of contaminated properties. Among other 

topics, this document addresses involuntary acquisition issues. 

To access online: http://www.epa.gov/oecaerth/cleanup/revitalization/local-acquis.html. 

Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action, 

October 20, 1995 

Sets forth EPA and DOJ policy regarding the government’s enforcement of Superfund against lenders and against 

governmental entities that acquire property involuntarily. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/immunity-cerclamem.pdf 

Policy on CERCLA Enforcement Against Lenders and Government Entities that Acquire Property 

Involuntarily, updated version of September 22, 1995 memorandum, October 23, 1995 

Provides EPA and DOJ’s policy to adhere to the 1992 “Lender Liability Rule” as official enforcement policy in 

order to appropriately contend with those lenders and governmental entities who have acquired contaminated property involuntarily. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/cercla-enfinvolmem.pdf 

D-5 
 

 

 

 

Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by 

Government Entities, June 30, 1997 

Sets forth EPA’s policy on lender and governmental entity involuntary acquisition of contaminated property in light 

of the amendments to Superfund as a result of the passage of the Asset Conservation, Lender Liability, and Deposit 

Insurance Protection Act of 1996. In addition, this document discusses how these amendments affect EPA’s 

application of the Lender Liability Rule. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/lendr-aquismem.pdf 

The Effect of Superfund on Involuntary Acquisitions of Contaminated Property by Government Entities, 

December 31, 1995 

Sets forth EPA’s policy on Superfund enforcement against government entities that involuntarily acquire 

contaminated property. Also describes some types of government actions that EPA believes qualify for a liability 

exemption or a defense to Superfund liability. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/fs-involacquprtyrpt.pdf 

MUNICIPAL SOLID WASTE 

Interim Guidance on the Municipal Solid Waste Exemption Under CERCLA Section 107(p), August 20, 

2003 

Discusses the qualified liability exemption added to Superfund by the 2002 Brownfields Amendments and provided 

to certain residential, small business and non-profit generators of municipal solid waste (MSW) at sites on the 

National Priorities List (NPL). This document discusses the criteria to qualify for this exemption, the provisions in 

the Amendments meant to deter litigation against exempt parties, and the interaction between this exemption and 

existing policies. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/interim-mswexempt.pdf 

PROSPECTIVE PURCHASER AGREEMENTS AND PROSPECTIVE LESSEE AGREEMENTS 

Prospective Purchaser Agreements and Other Tools to Facilitate Cleanup and Reuse of RCRA Sites, April 8, 

2003 

Discusses three useful tools for EPA to overcome obstacles in cleanup and reuse of Resource Conservation and 

Recovery Act (RCRA) sites: 

• Prospective Purchaser Agreements (PPA), 

• the February 2003 “Final Guidance on Corrective Action Activities at RCRA Facilities,” and 

• comfort/status letters. This document also includes the factors used by EPA to evaluate a request for a PPA. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/rcra/memoppa.pdf 

Guidance on Agreements with Prospective Purchasers of Contaminated Property, May 24, 1995 

Provides guidance to prospective purchasers of contaminated Superfund property, specifically concerning the 

expanded circumstances by which purchasers can enter into covenants not to sue with EPA. This document also 

provides a model agreement. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/prosper-contmem.pdf 

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READY FOR REUSE DETERMINATION 

Guidance for Preparing Superfund Ready for Reuse (RfR) Determinations, February 12, 2004 

Provides guidance to EPA employees in preparing Ready for Reuse Determinations (RfR) in order to encourage the 

reuse of Superfund sites by informing the real estate market of the status of the site subject to the determination. RfR 

is an environmental status report that documents a technical determination by EPA, in consultation with the States, 

Tribes, and local governments, that all or a portion of a Superfund site can support specified types of uses and 

remain protective of human health and the environment. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/rfr-deter-mpt.pdf 

RESIDENTIAL PROPERTIES 

Policy Towards Owners of Residential Property at Superfund Sites, July 3, 1991 

Sets forth EPA’s policy to not require an owner of residential property to undertake response actions or pay cleanup 

costs, unless the owner has caused the contamination. This policy does not apply when the owner fails to cooperate 

with EPA or a state’s response actions, meet CERCLA obligations, or uses the property inconsistently with a 

residential use depiction. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/policy-ownerrpt.pdf 

SUPPLEMENTAL ENVIRONMENTAL PROJECTS 

Brownfields Sites and Supplemental Environmental Projects (SEPs), November 30, 2006 

Provides background information on the use of supplemental environmental projects (SEPs), in addition to questions 

and answers on the complementary role of SEPs at brownfield sites. This document supersedes the 1998 guidance 

document “Using Supplemental Environmental Projects to Facilitate Brownfields Redevelopment.” 

To access online: 

http://www.epa.gov/compliance/resources/publications/cleanup/brownfields/brownfield-seps.pdf 

Transmittal of “Supplemental Environmental Projects: Green Building on Contaminated Properties,” July 

24, 2004 

Contains a fact sheet on supplemental environmental projects to promote redevelopment on contaminated properties. 

EPA issued this fact sheet to improve the environmental performance of redevelopment that follows clean up at any 

contaminated property. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/brownfields/sep-redev-fs.pdf 

WINDFALL LIENS 

Interim Enforcement Discretion Policy Concerning “Windfall Liens” Under Section 107(r) of CERCLA, July 

16, 2003 

Discusses EPA and the Department of Justice’s (DOJ) interim policy implementation of the new CERCLA 107(r) 

windfall lien provision contained in the 2002 Brownfields Amendments. This document lists the factors that EPA 

will use to determine whether to file a lien, in addition to discussing how EPA will settle the liens and the possibility 

of EPA issuing comfort letters to or making agreements with bona fide prospective purchaser (BFPPs). 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/interim-windfalllien.pdf 

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“Windfall Liens” Guidance Frequently Asked Questions, July 16, 2003 

Provides questions and answers regarding Superfund’s windfall lien section, including what properties it applies to, 

the factors that EPA uses to determine whether EPA will file a windfall lien, and how the windfall lien interacts with 

a § 107(l) lien. 

To access online: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/interim-windfalllien-faq.pdf 

D-8 
Appendix E 

Contact Information 
 

Appendix E 

Contact Information 

HEADQUARTERS 

U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, N.W., Washington, 

DC 20460-0001 

Office of Site Remediation Enforcement: 

http://www.epa.gov/compliance/cleanup/revitalization/index.html 

Office of Brownfields and Land Revitalization: 

http://www.epa.gov/brownfields/ 

Office of Superfund Remediation and Technology Innovation: 

http://www.epa.gov/superfund/partners/osrti/index.htm 

Office of Resource Conservation and Recovery 

http://www.epa.gov/osw/hazard/index.htm 

Office of Underground Storage Tanks: 

http://www.epa.gov/oust/ 

Federal Facilities Restoration and Reuse Office 

http://www.epa.gov/fedfac/ 

REGIONAL CONTACTS 

Regional Brownfields Coordinators: http://epa.gov/brownfields/corcntct.htm 

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