Revitalizing 

Contaminated Sites:
	

The Revitalization Handbook 

Addressing Liability Concerns 

May 2008
	

U.S. Environmental Protection Agency
	

Office of Site Remediation Enforcement
	
Cover photo capturing revitalized area provided by the Office of Superfund 

Remediation and Technology Innovation, Office of Solid Waste and 

Emergency Response, U.S. EPA. The Davie Landfill is now the Vista View 

Park, which includes walking trails, bike trails, horse trails, picnic shelters, 

and a catch-and-release fishing pond. Visit http://www.epa.gov/superfund/ 

programs/recycle/index.html for more information on Superfund 

Redevelopment. 

EPA Pub. No. 330-K-08-002 

Office of Site Remediation Enforcement 

Office of Enforcement and Compliance Assurance 

U.S. Environmental Protection Agency 

May 2008 
Table of Contents
 

Preface ................................................................................ 1
 

Purpose and Use of This Handbook .................................... 3
 

I.	 Overview of CERCLA and RCRA ........................................... 5
 

A. CERCLA ............................................................................ 5
 

1. General Information .................................................... 5
 

2. CERCLA’s Liability Scheme ....................................... 6
 

3.	 Traditional CERCLA Liability Protections ................... 7
 

4.	 EPA’s Brownfields Program and the Brownfields 

Amendments ............................................................... 8
 

B. RCRA .............................................................................. 10
 

II.	 Statutory and Enforcement Tools for the Cleanup, 

Reuse, and Revitalization of Contaminated Sites ............. 13
 

A.	 Owners and Purchasers of Contaminated Property .... 14
 

1.	 Innocent or “Unknowing” Purchasers ...................... 14
 

2.	 Bona Fide Prospective Purchasers ......................... 15
 

3.	 Owners of Property Impacted by Contamination 

from an Offsite Source (Contiguous Property 

Owners) ..................................................................... 17
 

4.	 Residential Property Owners .................................... 20
 

5.	 Specific EPA Tools for Owners (E.g., 

Prospective Purchasers) of Contaminated 

Property ...................................................................... 21
 

i. Common Elements Guidance ............................. 21
 

ii. Prospective Purchaser Agreements .................... 23
 

iii. Comfort/Status Letters ......................................... 25
 

iv.	 Windfall Lien Guidance, Comfort Letters, and 

Settlements .......................................................... 28
 

B.	 Lenders and Local Governments ................................. 30
 

1.	 CERCLA Liability Protections for Lenders 

and Local Governments ........................................... 30
 

i. Lenders ................................................................ 30
 

ii. Local Governments .............................................. 33
 

2.	 Underground Storage Tanks (UST) Lender 

Liability Rule ............................................................. 34
 

III. Other Considerations for Entities Seeking to Clean 

Up, Reuse, and Revitalize Contaminated Property ........... 37
 

A. Long-Term Stewardship ................................................ 37
 

B. State Response Programs ............................................ 40
 

1. Voluntary Cleanup Programs .................................... 40
 

2. Memoranda of Agreement ........................................ 41
 

3.	 Eligible Response Sites ........................................... 42
 

C.	 Supplemental Environmental Projects (SEPs) ............ 43
 

i 
Table of Contents (cont’d)
 

D. OECA Guiding Principles ............................................... 43
 

1. Environmental Justice .............................................. 44
 

2. Public Participation ................................................... 45
 

3. Financial Assurance ................................................. 46
 

E.	 Initiatives and Programs ................................................ 47
 

1.	 ER3 - The Environmentally Responsible 

Redevelopment and Reuse Initiative ....................... 48 

2.	 Brownfields Grants and State/Tribal Funding .......... 49
 

3.	 The Superfund Redevelopment Initiative ................. 50
 

4.	 The RCRA Brownfields Prevention Initiative ............ 51
 

Appendix A. The “Common Elements Guidance” 

Appendix B. Brownfields Enforcement and Land Revitalization 

Policy and Guidance Documents 

Appendix C.	 Online Resources to Cleanup 

Enforcement, Brownfields, and Land 

Revitalization Information and Documents 

Appendix D. Brownfields Contacts 

Table of Contents For Handbook Text Boxes 

Elements of the RCRA Corrective Action Enforcement 

Program .................................................................................... 11 

All Appropriate Inquiries ........................................................... 17 

Threshold Criteria for EPA’s Contaminated Aquifer 

Guidance .................................................................................. 18 

Threshold Criteria for Residential Property Owners 

Under EPA Guidance ............................................................... 21 

Evaluation Criteria for Superfund Comfort/Status Letters ...... 26 

Private Tools ............................................................................. 27 

“Participation in Management” Defined .................................. 31
 

Examples of Engineering Controls ......................................... 38
 

Examples of Institutional Controls .......................................... 39
 

Grants and Funding Web site ................................................. 49
 

ii 
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 Superfund (also known as the Comprehensive Environmental 

Response, Compensation, and Liability Act, or CERCLA), 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 categories of 

potentially liable parties as a result of the Brownfields Amendments and other provisions of the hazardous waste cleanup 

laws. OSRE has played, and continues to play, a key role in the 

reuse and revitalization of contaminated sites, including 

brownfield sites, by providing such guidance and developing 

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

Over the years, OSRE has highlighted these efforts through a 

series of handbooks, most recently the Brownfields 

Handbook: How to Manage Federal Environmental 

Liability Risks (2002). This 2008 edition of the handbook, 

1 
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 the Agency’s Web 

site (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. 

2 
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. §§ 9601-9675 

(CERCLA, commonly known as Superfund) and the Resource 

Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992 

(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. In particular, if the party intends to purchase the 

property, it should consider whether it needs to conduct certain 

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 about cleanup and liability protection. 

Some parties will find that they can proceed directly to their 

reuse activities. Others may want to pursue private mechanisms such as indemnification or insurance tools (see Private 

Tools text box on page 27), or work at the state level and 

make use of existing state tools, programs, or incentives such 

as the state voluntary cleanup program. If contamination on 

the property warrants EPA’s attention under CERCLA or 

RCRA, the party should first determine if EPA or the state is 

3 
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 hazardous waste, 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. 

Though many prospective purchasers, developers, and lenders report hesitation about getting involved with brownfield properties because they fear that they might be held liable under CERCLA or 

RCRA, the vast majority of brownfield properties will never require 

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 the primary obstacles to 

the redevelopment and reuse of brownfields. EPA hopes that this 

handbook will assist in eliminating or reducing any such fears. 

4 
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. §§ 9601-9675. CERCLA, 

commonly referred to as Superfund, authorizes the federal government to assess and/or clean up contaminated sites and provides authority for emergency response to hazardous materials 

incidents. 

CERCLA provides the federal government with a source of 

funds, the Hazardous Substance Trust Fund (the Fund), and 

the legal authority to respond to actual and threatened releases 

of hazardous substances, pollutants and contaminants. 

CERCLA also 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. A removal action generally is a short-term 

and/or emergency action intended to stabilize or clean up an 

incident or site which poses an imminent threat to human health 

or the environment. CERCLA § 101(23). A remedial action 

generally addresses long-term threats to human health and the 

environment caused by more persistent contamination sources. 

CERCLA § 101(24). Fund-financed remedial responses 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. 

5 
2.	 CERCLA’s Liability Scheme 

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

caused the contamination, rather than the general public, pay for 

cleanups. To be held liable for the costs or performance of a cleanup 

under CERCLA, a party must be a “potentially responsible party” 

(PRP) as described in CERCLA § 107(a), which includes: 

(1)	 The 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”); 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. 

6 
Additionally, EPA has adopted an “enforcement first” policy throughout the Superfund cleanup process to compel those responsible for 

hazardous waste sites to take the lead in cleanup, thus conserving 

the resources of the Fund. 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 the Agency spends Fund monies to 

finance a removal or remedial action, EPA may seek reimbursement 

from responsible parties. 

3. Traditional CERCLA Liability Protections 

CERCLA includes several defenses to liability or liability protections. 

The traditional defenses -- those found in the statute prior to the 

Brownfields Amendments -- include an act of God, an act of war, or 

what is commonly known as the third-party or “innocent landowner” 

defense. See CERCLA § 107(b). 

A party may qualify as an innocent landowner if it meets the criteria 

set forth in CERCLA §§ 107(b)(3) and 101(35). CERCLA 

§101(35)(A) distinguishes between three types of innocent landowners: 

(1) Purchasers who acquire property without knowledge of the 

contamination; 

(2) Governments who acquire contaminated property by escheat, 

other involuntary transfers or acquisitions, or the exercise of 

eminent domain authority by purchase or condemnation; and 

(3) Inheritors of contaminated property. 

CERCLA also excludes from the definition of owner/operator a unit 

of state or local government that acquired ownership of the property 

involuntarily. See CERCLA § 101(20)(D). Discussed below are the 

7 
liability protections addressed in the Brownfields Amendments, such 

as the bona fide prospective purchaser protection. 

4.	 EPA’s Brownfields Program and the 

Brownfields Amendments 

There are many different types of 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 contaminated properties may be 

“brownfields”-- properties that are unused or underutilized because 

of fears about actual or possible contamination from past uses. 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 “RCRA brownfields” -- RCRA facilities where reuse or redevelopment is slowed due to real or perceived 

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

EPA launched the Brownfields Initiative in the mid-1990’s and developed tools within the Superfund program and the enforcement 

office to help further the Initiative’s goals of empowering states, communities, and other stakeholders in redevelopment to assess, safely 

clean up, and sustainably reuse brownfields, and to prevent future 

brownfield sites. 

Congress codified many of these practices, policies, and guidances 

that had been adopted to promote the redevelopment and revitalization of brownfields 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 

8 
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 site-specific brownfields grant 

program, 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 it 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 liability protections for landowners who acquire property and meet certain criteria. 

The three landowner liability protections addressed in the Brownfields 

Amendments are: 

•	 Bona fide prospective purchasers (BFPPs); 

•	 Contiguous property owners (CPOs); and 

•	 Innocent landowners (ILOs) (specifically innocent or unknowing purchasers). 

The BFPP liability protection applies to an entity that purchases property after January 11, 2002, even with knowledge of contamination 

at the site, so long as the entity complies with certain pre- and postpurchase obligations. 

The CPO provision protects owners of contaminated property where 

the contamination originated from a contiguous or similarly-situated 

property not owned by the entity asserting CPO status. This liability 

protection also has pre- and post-purchase obligations, and notably, 

unlike the BFPP liability protection, the person cannot have knowledge of the contamination at the time of purchase. 

9 
The ILO provision, as discussed above, excludes from CERCLA 

liability unknowing purchasers of contaminated property where the 

contamination was caused by a third party, the unknowing purchaser 

made all appropriate inquiry but did not discover the contamination, 

and the purchaser meets certain statutory conditions. The Brownfields 

Amendments clarified the all appropriate inquiry aspect of this protection. This liability protection also has pre- and post-purchase obligations. 

For more information on these liability protections and related cleanup 

enforcement policy and guidance, please see Section II. 

More information on the Superfund enforcement program is available on EPA’s Web site at http://www.epa.gov/compliance/cleanup/ 

superfund/index.html. Information on the Superfund program is available at http://www.epa.gov/superfund. 

B. RCRA 

In 1976, Congress enacted the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k, which authorizes EPA 

to establish programs to regulate solid waste (Subtitle D), hazardous 

waste (Subtitle C), and underground storage tanks (Subtitle I). 

RCRA’s goals include: 

•	 Protecting human health and the environment from the potential hazards of waste disposal; 

•	 Conserving energy and natural resources; 

•	 Reducing the amount of waste generated; and 

•	 Ensuring that wastes are managed in an environmentally sound 

manner. 

10 
Congress gave EPA the authority through RCRA to control hazardous waste from “cradle to grave.” The regulatory program includes 

procedures to facilitate the proper identification and classification of 

hazardous waste. The program also includes standards for facilities 

that generate, transport, treat, store or dispose of hazardous waste, 

and requires that certain persons managing waste obtain a permit. 

Unlike CERCLA, RCRA does not contain a bona fide prospective 

purchaser or similar liability protection, as the Brownfields Amendments only addressed CERCLA. 

Since waste management at RCRA facilities may result in spills or 

releases into the environment, Subtitle C of the statute also includes 

provisions governing the cleanup of contaminated soil, groundwater, 

and air resulting from such management, also known as “corrective 

action.” As a condition of a RCRA permit, owners/operators are 

required to clean up contamination caused by the mismanagement of 

wastes. 

Elements of the RCRA Corrective 

Action Enforcement Program 

• Conduct investigations; 

• Conduct a thorough cleanup of the 

hazardous release; and 

• Monitor the cleanup to make sure it complies 

with applicable state and federal 

requirements. 

11 
States are an integral part of the RCRA program. Under Subtitle C, EPA reviews state programs that consist of requirements 

for the generation, transportation, treatment, storage, and disposal of hazardous wastes for facilities within that state. If the 

state program is deemed to be at least as stringent as the federal 

requirements, EPA authorizes that state to administer the state 

program in lieu of the federal program and facilities must then 

comply with the authorized state requirements rather than the 

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. Many are also authorized to implement additional parts of the RCRA program, such 

as corrective action. More information on the RCRA state authorization program is available on EPA’s Web site at 

www.epa.gov/epaoswer/hazwaste/state. More information on 

the RCRA cleanup enforcement program is available on EPA’s 

Web site at http://www.epa.gov/compliance/cleanup/rcra/ 

index.html. 

12 
II. Statutory and Enforcement
 

Tools 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 the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601- 

9675 (CERCLA, commonly known as Superfund) and the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901- 

6992 (RCRA) Corrective Action and underground storage tank 

programs, as well as aspects of the Oil Pollution Act (OPA). In 

this capacity, OSRE began to develop a comprehensive approach 

in the early 1990s to defining liability issues and providing appropriate liability relief under these statutes to assist with the 

redevelopment and revitalization of contaminated property. More 

specifically, OSRE began developing guidance documents to 

provide liability clarity, if not liability relief, to those who were 

interested in redeveloping and revitalizing contaminated sites. 

Partly in response to EPA’s efforts, Congress enacted the Small 

Business Liability Relief and Brownfields Revitalization Act of 

2002 (Public Law 107-118) (the Brownfields Amendments), 

amending the Superfund statute, to clarify landowner liability 

concerns and provide funding for grants for the assessment and 

cleanup of contaminated property. 

OSRE continues to promote site cleanup by potentially responsible parties (PRPs) and private parties and revitalization through 

the issuance of enforcement discretion guidance documents, 

model enforcement documents, frequently asked questions, fact 

sheets, and other documents that provide liability certainty or 

relief to potential developers and owners of contaminated land. 

All of these documents, along with all current Superfund en13 
forcement and brownfield policy and guidance documents, are available on EPA’s Web site at http://www.epa.gov/compliance/resources/ 

policies/cleanup/. Those enforcement discretion documents that are 

relevant to revitalization are summarized in Appendix B and are available on the CD accompanying this handbook. 

More information on the Superfund enforcement program is available on EPA’s Web site at http://www.epa.gov/compliance/cleanup/ 

superfund/index.html. Information on the Superfund program is available at http://www.epa.gov/superfund. 

The following is a discussion of certain categories of parties that 

may be concerned about CERCLA liability, and the statutory protections and EPA tools that may be available to address such concerns. 

A.	 Owners and Purchasers of Contaminated Property 

As discussed in the previous chapter, owners of contaminated property are liable under CERCLA for any costs associated with addressing the contamination. The following are statutory liability protections for owners and prospective purchasers of contaminated property, and associated EPA tools. 

1.	 Innocent or “Unknowing” Purchasers 

Entities that acquire property and had no knowledge of the contamination at the time of purchase may be eligible for CERCLA’s thirdparty defense for certain purchasers of contaminated property. 

CERCLA §§ 107(b)(3), 101(35)(A)(i). This defense, added to 

CERCLA in the Superfund Amendments and Reauthorization Act of 

1986 (Public Law 99-499), provides entities with an affirmative defense to liability if they conducted all appropriate inquiries prior to 

purchase and complied with other pre- and post-purchase require14 
ments. The 2002 Brownfields Amendments partially amended the 

innocent purchaser defense by elaborating on the all appropriate inquiry requirement. See the “All Appropriate Inquiries” text box on 

page 17. 

The innocent purchaser defense may provide liability protection to 

some owners of contaminated property -- especially those that purchased property prior to January 1, 2002, and are therefore ineligible 

for the bona fide prospective purchaser protection -- but generally 

most post-2002 prospective purchasers will not rely on this defense 

because of the requirement that the purchaser have no knowledge of 

contamination at the site. 

Several of EPA’s guidance documents discuss the innocent purchaser 

third-party defense, including the Common Elements guidance, discussed below in Section II.A.5 beginning on page 21. 

2. Bona Fide Prospective Purchasers 

The 2002 Brownfields Amendments created a new liability protection for a bona fide prospective purchaser (BFPP). Prior to 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 prior to 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. 

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

the CERCLA liability landscape. 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). 

15 
Unlike the innocent purchaser defense, persons may now 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. 

BFPPs must meet the threshold criteria of performing “all appropriate inquiry” prior to acquiring the property, and demonstrating “no 

affiliation” with a liable party. BFPPs must also satisfy the following 

obligations which are ongoing: 

• 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; 

• Complying with information requests and administrative subpoenas; and 

• Providing legally required notices. 

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. For more discussion of windfall liens, please refer to Section II.A.5.iv on page 28. 

16 
All Appropriate Inquiries 

All Appropriate Inquiry (AAI) is required under CERCLA 

§ 101(35)(B) and is the first step that BFPPs, CPOs and 

innocent purchasers must undertake to achieve the protected status. 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”) 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. 

3.	 Owners of Property Impacted by Contamination from an Offsite Source (Contiguous Property Owners) 

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 groundwater contamination. Protection from liability for contiguous landowners can 

be found in EPA guidance prior to the Brownfields Amendments, as 

well as in those Amendments. 

In May 1995, OSRE developed the Final Policy Toward Owners 

of Property Containing Contaminated Aquifers in response to this 

concern. Not only did EPA state 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. 17 
Threshold Criteria for EPA’s
 

Contaminated Aquifer Guidance
 

A landowner is protected by this policy if all 

of the following criteria are met: 

• The hazardous substances contained in the aquifer are 

present solely as the result of subsurface migration 

from a source or sources outside the landowner’s 

property; 

• The landowner did not cause, contribute to, or make 

the contamination worse through any act or omission 

on his part; 

• The person responsible for contaminating the aquifer is 

not an agent or employee of the landowner, and was 

not in a direct or indirect contractual relationship with 

the landowner (exclusive of conveyance of title); and 

• The landowner is not considered a liable party under 

CERCLA for any other reason such as contributing to 

the contamination as a generator or transporter. 

This policy may not apply in cases where: 

• The property contains a groundwater well that may 

influence the migration of contamination in the 

affected aquifer; or 

•	 The landowner acquires the property, directly or 

indirectly, from a person who caused the original 

release. 

18 
The policy identifies certain exceptions as they apply to particular 

landowners including, among others, whether a well on the property 

may affect the migration of contaminants, or the existence of a contractual relationship between the landowner and the person causing 

the off-site contamination. In addition, the policy required that, to be 

covered by the policy, the landowner must not be liable based on 

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

In addition, 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 meet the threshold criteria of performing “all appropriate inquiry” prior to acquiring 

the property, and demonstrating that it is not affiliated with a liable 

party. Persons who know, or have reason to know, prior to 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 enforcement discretion 

derived from 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). 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 Resi19 
dential 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. 

4. 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, a residential owner’s knowledge of the contamination was deemed irrelevant. The residential owner policy applies to 

residents as well as their lessees, so long as the activities 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 after acquisition 

are consistent with the policy. 

Residential property owners that purchase contaminated property 

after January 2002, can take advantage of the statutory BFPP protection. The Brownfields Amendments addressed residential property owners by clarifying the type of pre-purchase investigation (i.e., 

all appropriate inquiry) 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 satisfy all appropriate inquiry for a residential purchaser. CERCLA § 101(40)(B)(iii). 

20 
 

Threshold Criteria for Residential Property
 

Owners Under EPA Guidance
 

An owner of residential property located on a
 

CERCLA site is protected if the owner:
 

• Has not and does not engage in activities that lead to a 

release or threat of release of hazardous substances, 

resulting in EPA taking a response action at the site; 

•	 Cooperates fully with EPA by providing access and 

information when requested and does not interfere with 

the activities that either EPA or a state 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 the Agency’s response action. 

5.	 Specific EPA Tools for Owners (E.g., Prospective 

Purchasers) of Contaminated Property 

i.	 Common Elements Guidance 

In March 2003, EPA issued its “Common Elements” guidance for 

the three property owner classes -- BFPP, CPO and innocent purchaser -- 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 high21 
lights 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 for the Common Elements guidance. Included with the Common Elements 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 purchasers must meet to assert these 

liability protections. 

The first threshold requirement is that the landowner conduct “all 

appropriate inquiries” (AAI) prior to purchasing the property. 

CERCLA §§ 101(40)(B), 107(q)(1)(A)(viii), 101(35)(A)(i), (B)(i). 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 purchaser protection, 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 person does not have an employment, 

agency, or contractual relationship. CERCLA §§ 107(b)(3), 

101(35)(A). 

Second, the Common Elements guidance discusses the common 

ongoing obligations for each type of landowner liability protection 

identified as follows: 

22 
• 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. 

Prospective purchasers or owners of contaminated property may 

want to use the Common Elements guidance to clarify the different 

liability protections that may be available, and their requirements. 

ii. Prospective Purchaser Agreements 

EPA has long recognized the value of redeveloping contaminated 

land and the need to provide liability relief to encourage prospective 

purchasers of such land. 

Long before the BFPP liability protection was available, EPA developed tools for prospective purchasers of contaminated property, including prospective purchaser agreements (PPAs). PPAs are agreements between a liable party and EPA whereby EPA provides the 

party with liability relief in exchange for payment and/or cleanup 

work. The first EPA policy dealing with prospective purchasers of 

contaminated property was published in June 1989 and titled 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. Models attached to the 1989 guidance were 

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

After the Agency gained experience with developing and issuing 

PPAs, it expanded the circumstances under which it would consider 

23 
a PPA and issued guidance titled Guidance on Agreements with 

Prospective Purchasers of Contaminated Property (May 24, 1995). 

This guidance, and the criteria contained therein, allows EPA greater 

flexibility in considering agreements with covenants not to sue. Such 

agreements encourage the reuse or redevelopment of contaminated 

property that would have substantial benefits to the community (e.g. 

through job creation or productive use of abandoned property), but 

also would be safe, consistent with remediation, and provide direct 

benefits to EPA. Attached to the 1995 guidance is a model prospective purchaser agreement. 

EPA further enhanced and expedited the PPA process in its October 

1, 1999 guidance, Expediting Requests for Prospective Purchaser 

Agreements, and continued to build on the success achieved in issuing PPAs by clarifying threshold criteria and providing a common 

framework of analysis for entering into PPAs in its January 10, 2001 

guidance, Support of Regional Efforts to Negotiate Prospective 

Purchaser Agreements (PPAs) at Superfund Sites and Clarification of PPA Guidance. 

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 of 

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

EPA stated that in most circumstances, PPAs will no longer be needed 

for a party to enjoy liability relief under CERCLA as a present owner. 

There will continue to be, however, limited circumstances under which 

EPA will consider entering into a PPA, such as: 

•	 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; 

24 
•	 Unique, site-specific circumstances when a significant 

public interest will be served. 

Despite the liability relief assurances to BFPPs which the abovereferenced guidance documents provide, many prospective purchasers of contaminated property wanted further protection from EPA 

for cleanup work performed by them under EPA supervision. As a 

result of this need and to further encourage reuse and redevelopment on contaminated sites, EPA, jointly with the Department of 

Justice (DOJ), issued a model administrative order titled Issuance 

of CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser, for use as 

an agreement with a BFPP who intends to perform removal work at 

its property. 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 to prevent releases” which 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 is also provided. The model is for use at sites of federal interest where the 

work is more significant and complex than other contaminated sites. 

iii. Comfort/Status Letters 

Under certain circumstances, a prospective purchaser can proceed 

in the cleanup and redevelopment of a contaminated site based on a 

“comfort/status” letter issued by EPA. 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. 

The “comfort” comes from realizing what EPA knows about the 

25 
property and what its intentions are in terms of a response. Comfort/ 

status letters are not “no action” assurances, that is, they are not 

assurances by the Agency that it will not take an enforcement action 

at a particular site. 

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 the realistic perception or probability of 

incurring CERCLA liability; and 

•	 There is no other mechanism available to 

adequately address the party’s concerns. 

• 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. 

26 
Private 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 shield another from liability. Indemnification 

provisions provide prospective buyers, lenders, 

insurers, and developers with a means of assigning 

responsibility for cleanup costs, and encourage 

negotiations between 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, however, many 

factors affect their utility including the types of 

coverage available, the dollar limits on claims, the 

policy time limits, site assessment requirements, and 

costs for 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. 

27 
• RCRA Comfort/Status Letters 

RCRATreatment, Storage, and Disposal (TSD) facilities also 

offer unique challenges in terms of cleanup and reuse, but 

may also provide opportunities for revitalization. Recognizing 

that analogous situations existed at RCRA facilities as at 

Superfund sites, EPA developed guidance for issuing comfort/ 

status letters for RCRA 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 use of RCRA comfort/status letters was reiterated and 

highlighted in the April 8, 2003 guidance Prospective Purchaser Agreements and Other Tools to Facilitate Cleanup 

and Reuse of RCRA Sites. That guidance also recognizes 

that RCRA PPAs as well as the February 23, 2003 Final 

Guidance on Completion of Corrective Action Activities 

at RCRA Facilities were valuable tools to help revitalize RCRA 

sites. The guidance provides examples where RCRA PPAs 

have been successfully used and identifies certain factors that 

should be considered before issuing a RCRA PPA. 

iv.	 Windfall Lien Guidance, Comfort Letters, and 

Settlements 

The Brownfields Amendments also acknowledged the possibility of 

a windfall lien for BFPPs who may benefit in the purchase of a 

contaminated property where the fair market value of the property is 

increased due to a cleanup using Superfund money. That is, the 

United States, after spending Superfund money for cleanup at a prop28 
erty, 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 is a new lien provision 

that does not supplant the lien provision found in CERCLA § 107(l). 

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. In 

addition to explaining how EPA intends to use the new windfall lien, 

and when EPA will seek to enforce or will not seek to enforce, there 

are two attachments to the guidance: a sample “comfort letter” that 

explains to the recipient whether EPA believes there is a possible 

windfall lien applicable to the property, and a model settlement document, whereby a party to whom the windfall lien provision applies 

may settle with EPA in exchange for release of the windfall lien both 

now and in the future. 

The windfall lien, unlike the lien under CERCLA § 107(l), has no 

applicable statute of limitations and is most likely to be filed and recorded only after a BFPP comes into possession of the property. 

Additionally, the model settlement document for releasing the windfall lien does not provide a covenant not to sue. 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 after acquisition by a BFPP and the EPA administrative 

procedures that should accompany filing a windfall lien notice. 

29 
 

B.	 Lenders and Local Governments 

1.	 CERCLA Liability Protections for Lenders and 

Local Governments 

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. 

EPA initially tried to address the concerns of lenders and municipalities through the Lender Liability Rule promulgated in 1992. However, a federal court ruling vacated the Lender Liability Rule on the 

grounds 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, American 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. 

i. 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. But lenders were concerned 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 (Lender Liability Act). Section 2502 of the Lender Liability Act amended 

30 
 

CERCLA’s secured creditor exemption contained in CERCLA 

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

CERCLA Lender Liability Rule, CERCLA §§ 101(20)(E)-(G) elaborate 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 

“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; 

•	 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 

•	 All, or substantially all, of the operational (as opposed to 

financial or administrative) functions of the facility other 

than environmental compliance. 

Continued next page... 

31 
“Participation in Management” Defined (cont’d) 

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 prior to foreclosure is not an “owner or 

operator” if the lender: 

•	 Sells, releases (in the case of a lease finance 

transaction), or liquidates the facility; 

•	 Maintains business activities or winds up operations; 

•	 Undertakes CERCLA § 107(d)(1) or 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. 

32 
Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (1997) and subsequent 

fact sheets. EPA’s subsequent lender policy explains that when interpreting the amended secured creditor exemption, EPA will treat 

the Lender Liability Rule and its preamble as authoritative guidance. 

ii. Local Governments 

Section 2504 of the Lender Liability Act validates 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). CERCLA § 101(20)(D). There is also a third-party 

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). 

EPA’s 1995 enforcement policy on involuntary acquisition by lenders 

and local governments was followed with the guidance memorandum, Municipal Immunity from CERCLA Liability for Property 

Acquired through Involuntary State Action (October 20, 1995). 

These two policy memoranda clarified some of the issues surrounding involuntary municipal acquisition of properties. EPA provided 

further clarification on these issues in a fact sheet, The Effect of 

Superfund on Involuntary Acquisitions of Contaminated Property by Government Entities issued in December 1995. EPA continues to follow as guidance the Lender Liability Rule and the two 

1995 guidance documents and subsequent fact sheets when addressing 

local government liability. 

State or local government entities that acquire property after the enactment of the 2002 Brownfields Amendments and that are concerned about potential contamination may want to seek the advice of 

33 
counsel before taking title to ensure that they will have a 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 prior to purchase and comply with the other BFPP requirements. Conducting proper AAI prior to purchase is also important 

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

2.	 Underground Storage Tanks (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 Tanks (UST) Lender Liability Rule 

(40 C.F.R. § 280.200-.300) is an example of how 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. 

34 
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 

Web site at http://www.epa.gov/oust/fedlaws/280_i.pdf. 

35 
36 
III. 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 and 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 “engineering” 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 “engineering” 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. 

37 
Examples of Engineering Controls 

•	 Landfill soil caps 

• Impermeable liners 

•	 Other containment covers 

•	 Underground slurry walls 

• Fences 

• Bioremediation 

•	 Groundwater pump-and-treat and monitoring 

systems 

Legal or “institutional” controls are non-engineered instruments, such 

as administrative and/or legal controls, 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. 

Informational devices, such as signs, state registries and deed notices, are commonly used informational, non-enforceable tools. 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 institutional controls guidance is available on the EPA institutional controls 

Web page at http://www.epa.gov/superfund/policy/ic/index.htm. 

38 
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 onsite 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 

39 
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. 

EPA, under the Brownfields program, 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, when 

a release has been detected or discovered at an 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 underground storage tanks, 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 Web site at http://www.epa.gov/LANDREVITALIZATION/ 

ltstf_report/what is_longterm_stewardship.htm. 

B. State Response Programs 

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.” 

40 
Voluntary cleanup programs (VCPs) are typically the state authority 

used to address brownfield and other lower-risk sites. Links to state 

VCPs can be found on EPA’s Web site at http://www.epa.gov/ 

brownfields/state_tribal.htm#links. 

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 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 128: 

•	 CERCLA § 128(a) addresses grant funding and Memoranda 

of Agreements (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 sites addressed in compliance with such 

programs; 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. 

2.	 Memoranda of Agreement 

Since 1995, EPA has encouraged the use of 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 

41 
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 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 Web site at http://www.epa.gov/oswer/ 

onecleanupprogram/. 

Copies of a specific MOA or MOU, and additional information about 

state and tribal response programs are available from EPA’s Web 

site at http://www.epa.gov/swerosps/bf/html-doc/statemoa.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 in certain 

circumstances, and that 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.” 

42 
C.	 Supplemental Environmental Projects 

(SEPs) 

Supplemental Environmental Projects (SEPs) may play a key role in 

revitalizing contaminated sites. SEPs are environmentally beneficial 

projects undertaken by a party, in a settlement of an environmental 

enforcement action, but which the violator is not otherwise legally 

required to perform. SEPs are critical to site revitalization because 

they are one of only a few tools EPA can use to enhance the environment of those communities that were directly put at risk by the 

violator. The successful use of SEPs is even more important because many sites are in environmental justice communities. 

As stated in the November 2006 Brownfield Sites and Supplemental Environmental Projects (SEPs) fact sheet, EPA does not approve SEPs that require assessment and/or cleanup of brownfield 

sites because appropriations law prohibits SEP activities that are 

funded by Congress. Congress provides funds for assessment and 

cleanup activities to EPA’s brownfields program. However, EPA 

does approve SEP activities that complement brownfield site activities, such as: 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 of a SEP, please refer to U.S. EPA 

Supplemental Environmental Projects Policy (“U.S. EPA SEP 

Policy”) (May 1, 1998). 

D. 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 the Agency’s mission. Key among these guiding principles 

are: 

43 
•	 the recognition and addressing of environmental justice issues; 

•	 the requirement of public participation in the Agency’s work; 

and 

•	 financial assurance to ensure the costs of cleanup are 

addressed. 

1.	 Environmental Justice 

EPA recognizes that minority and/or low-income communities 

frequently may be exposed disproportionately to environmental harms 

and risks. As a result, the Agency works to protect these and other 

communities burdened by adverse human health and environmental 

effects of its programs and has incorporated environmental justice 

as a priority throughout the Agency. 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, including the 

brownfields program. 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. 

EPA’s Office of Enforcement and Compliance Assurance (OECA) 

is committed to improving environmental performance through compliance with environmental requirements, preventing pollution, promoting environmental stewardship, and by incorporating environmental 

justice across the spectrum of our programs, policies, and activities. 

When working with local environmental justice communities, private 

parties should address the following environmental justice issues: 

• Meaningfully involve the community in the planning, cleanup 

and revitalization process; 

•	 Review the cumulative effects of multiple sources of 

contamination in close proximity; 

44 
•	 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, cleanup and revitalize 

brownfields; and 

•	 Take steps to limit the displacement, equity loss and cultural 

loss of the local community. 

2. Public Participation 

Citizens are an essential component of the Superfund cleanup and 

RCRA permitting processes and for the revitalization of these sites 

and brownfield sites. The 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 the 

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. 

45 
“The public” in this case refers to not only private citizens, but also 

representatives of consumer, environmental, and minority associations; trade, industrial, agricultural, and labor organizations; public 

health, scientific, and professional societies; civic associations; public officials; and governmental and educational associations. 

Considered in this broad sense, public participation can mean any 

stakeholder activity carried out to increase the public’s ability to understand and influence the Superfund cleanup and RCRA permitting 

processes and the revitalization of contaminated sites. 

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 the 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. 

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. 

46 
Financial assurance requirements can play an important role in promoting the revitalization of contaminated sites. Where the financial 

resources are available for cleanup and 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. 

Given the importance of financial assurance requirements and concerns that entities were not providing adequate financial assurance 

in accordance with their obligations, financial responsibility was selected as a national enforcement and compliance priority for the fiscal year (FY) 2007-2008 period. The goal of the financial responsibility priority is to ensure that EPA optimizes its financial safeguards 

under the existing financial assurance requirements 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 Web site at 

http://cfpub.epa.gov/compliance/data/planning/priorities/financialresp/ 

resources/. 

E. 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 initia47 
tives or programs to address certain revitalization challenges. Four 

of those initiatives -- the Environmentally Responsible Redevelopment and Reuse (ER3) Initiative, brownfields grants and state/tribal 

funding, the Superfund Redevelopment Initiative (SRI), and the RCRA 

Brownfields Prevention Initiative -- are described below. 

1.	 ER3 - The Environmentally Responsible Redevelopment and Reuse Initiative 

OSRE formally launched its Environmentally Responsible Redevelopment and Reuse (ER3) Initiative in the fall of 2004 at the National 

Brownfields Conference in St. Louis, MO. The genesis for ER3 

was the recognition by former Administrator Christine Todd Whitman 

that the “built” environment has a tremendous impact on the natural 

environment and that every office within EPA should work to reduce 

that impact. OSRE realized that it could reduce the impact of redevelopment by encouraging sustainable redevelopment of contaminated sites by offering enforcement and liability relief incentives to 

developers and other parties. Historically, under the liability schemes 

found in both Superfund and RCRA, developers faced enforcement 

and liability concerns if they purchased or operated contaminated 

land for redevelopment. To some extent, these concerns were addressed, at least for Superfund sites, by the 2002 Brownfields Amendments. ER3 was designed to provide extra relief as an enforcement 

incentive not only to develop, but to develop in a sustainable manner. 

For more information on ER3, please visit the ER3 Web site at 

http://www.epa.gov/compliance/cleanup/revitalization/er3/index.html. 

ER3 is composed of three interconnected principles. First, OSRE 

will provide an extra layer of liability relief incentives through a variety of tools available to it (e.g. prospective purchaser agreements 

(PPAs), comfort letters, etc.). That is, OSRE will provide comfort 

regarding the statutory requirements of CERCLA or RCRA. In return for this “extra” comfort, developers will be required to develop 

48 
sustainably. However, OSRE recognizes that many builders do not 

know how to build with sustainable principles. So as the second 

component, the ER3 team created a national network of outside partners who have this expertise. Finally, the third component is joint 

outreach and education on sustainable development principles by the 

OSRE ER3 team, other EPA offices, and the ER3 partners. Information on the ER3 partners is available on EPA’s Web site at http:// 

www.epa.gov/compliance/cleanup/revitalization/er3/partner/ 

index.html#partners. 

In March 2006, OECAAssistant Administrator Granta Nakayama 

issued a memorandum to EPA Regions calling for ER3 pilot projects. 

To date, there have been two pilots and the ER3 team is in the process of developing others. For information on ER3 pilot projects, see 

EPA’s Web site at http://www.epa.gov/compliance/cleanup/ 

revitalization/er3/pilot.html. 

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). Regarding site cleanup, the brownfield grant program provides direct funding for brownfields assessment, cleanup, and revolving loans (that is, 

establishment of a revolving loan fund for eligible entities to make 

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 

49 
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.” See 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. Still other sites are excluded unless EPA makes a 

property-specific determination for funding. 

CERCLA § 104(k)(4)(B) provides 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. 

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. See CERCLA § 128(a). 

3. The Superfund Redevelopment Initiative 

EPA’s Superfund Redevelopment Initiative 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, the Agency 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, the Agency 

and its partners have an effective process and the necessary tools 

and information needed to fully explore future uses, before the cleanup 

remedy is implemented. This gives the Agency the best chance of 

50 
making its remedies consistent with the likely future use of a site. In 

turn, EPA gives communities the best opportunity to productively use 

sites following cleanup. 

As part of the Superfund Redevelopment Initiative, EPA has developed a series of tools to aid in the redevelopment of Superfund sites. 

One principal tool is the Ready for Reuse (RfR) Determination document, which the Agency creates to provide potential users of 

Superfund sites with an environmental status report. This documents 

a technical determination by EPA, in consultation with states, tribes, 

and local governments, that all or a portion of a real estate property 

at a site can support specified types of uses and remain protective of 

human health and the environment. For more information on RfR 

Determinations, please refer to http://www.epa.gov/superfund/ 

programs/recycle/policy/reuse.html. 

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 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. 

4.	 The 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 

51 
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 Web site at http://www.epa.gov/ 

swerosps/rcrabf/. 

The Initiative links EPA’s brownfields program with EPA’s RCRA 

Corrective Action Program and other Agency 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: 

• 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 to 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. 

52 
APPENDICES 

Appendix A 

The “Common Elements Guidance” 

Issued March 6, 2003 

The following contains the text of a policy issued by the U.S. 

Environmental Protection Agency (EPA). Formatting (margins, 

page numbering, etc.) may be different than the original hard 

copy to make the document more easily readable. This text is a 

courtesy copy of the official policy. If any discrepancies are 

found, the file copy (hard copy original) which resides at the 

U.S. EPA provides the official policy and is available on the 

Agency’s Web site at http://www.epa.gov/compliance/resources/ 

policies/cleanup/superfund/common-elem-guide.pdf. 

U.S. Environmental Protection Agency 

Washington, D.C. 20460 

Office of Enforcement and Compliance Assurance 

March 6, 2003 

MEMORANDUM 

Subject: 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”) 

From: Susan E. Bromm, Director 

Office of Site Remediation Enforcement 

To:	 Director, Office of Site Remediation and Restoration, Reg. I 

Director, Emergency and Remedial Response Division, Reg. II 

Director, Hazardous Site Cleanup Division, Reg. III 

Director, Waste Management Division, Reg. IV 

Directors, Superfund Division, Regs. V, VI, VII and IX 

Assistant Regional Administrator, Office of Ecosystems Protection and Remediation, Reg. VIII 

Director, Office of Environmental Cleanup, Reg. X 

Director, Office of Environmental Stewardship, Reg. I 

Director, Environmental Accountability Division, Reg. IV 

Regional Counsel, Regs. II, III, V, VI, VII, IX, and X 

Assistant Regional Administrator, Office of Enforcement, Compliance, and Environmental Justice, Reg. VIII A-1 
I. INTRODUCTION 

The Small Business Liability Relief and Brownfields Revitalization Act, 

(“Brownfields Amendments”), Pub. L. No. 107-118, enacted in January 2002, 

amended the Comprehensive Environmental Response, Compensation and 

Liability Act (“CERCLA”), to provide important liability limitations for landowners that qualify as: (1) bona fide prospective purchasers, (2) contiguous 

property owners, or (3) innocent landowners (hereinafter, “landowner liability protections” or “landowner provisions”). 

To meet the statutory criteria for a landowner liability protection, a landowner must meet certain threshold criteria and satisfy certain continuing 

obligations.1 Many of the conditions are the same or similar under the three 

landowner provisions (“common elements”). This memorandum is intended 

to provide Environmental Protection Agency personnel with some general 

guidance on the common element of the landowner liability protections. 

Specifically, this memorandum first discusses the threshold criteria of performing “all appropriate inquiry” and demonstrating no “affiliation” with a 

liable party. The memorandum then discusses the continuing obligations: 

• 	 Compliance with land use restrictions and not impeding the 

effectiveness or integrity of institutional controls;
 

• 	 Taking “reasonable steps” with respect to hazardous substances 

affecting a landowner’s property; 

• 	 Providing cooperation, assistance and access; 

• 	 Complying with information requests and administrative
 

subpoenas; and
 

• 	 Providing legally required notices. 

A chart summarizing the common elements applicable to bona fide prospective purchasers, contiguous property owners, and innocent landowners is 

attached to this memorandum (Attachment A). In addition, two documents 

relating to reasonable steps are attached to this memorandum: (1) a “Questions and Answers” document (Attachment B); and (2) a sample site-specifics Comfort/Status Letter (Attachment C). 

This memorandum addresses only some of the criteria a landowner must 

meet in order to qualify under the statute as a bona fide prospective pur1 See CERCLA §§ 101(40)(B)-(H), 107(q)(1)(A), 101(35)(A)-(B). 

A-2 
chaser, contiguous property owner, or innocent landowner (i.e., the common elements described above). Other criteria (e.g. the criterion that a 

contiguous property owner “did not cause, contribute, or consent to the 

release or threatened release,” found in CERCLA § 107(q)(1)(A)(i), and the 

criterion that a bona fide prospective purchaser and innocent landowner 

purchase the property after all disposal of hazardous substances at the 

facility, found in CERCLA §§ 101(40)(A), 101(35)(A)), are not addressed in 

this memorandum. In addition, this guidance does not address obligations 

landowners may have under state statutory or common law. 

This memorandum is an interim guidance issued in the exercise of EPA’s 

enforcement discretion. As EPA gains more experience implementing the 

Brownfields Amendments, the Agency may revise this guidance. EPA welcomes comments on this guidance and its implementation. Comments may 

be submitted to the contacts identified at the end of this memorandum. 

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 

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). 

A-3 
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 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 guid3 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 purchase, as 

long as he meets the criteria set forth in CERCLA § 101(40). 

A-4 
ance 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 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). 

4 CERCLA §§101(40), 107(q)(1)(B), 101(35). 

A-5 
 

 

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. 

5 The bona fide prospective purchaser provision provides, in pertinent part: 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 provides provisions, in pertinent part: NOT 

CONSIDERED TO BE AN OWNER OR OPERATOR -- ...(ii) the person is not -- (I) potentially 

liable, or affiliated with any oterh 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). 

A-6 
The innocent landowner provision does not contain this “affiliation” language. In order 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, 

A-7 
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 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 

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). 

A-8 
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 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 disrupA-9 
tion 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. 

2. Reasonable Steps 

a. Overview 

Congress, in enacting the landowner liability protections, included the condition that bona fide prospective purchasers, contiguous property owners, 

A-10
 
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, 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. 

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). 

A-11
 
 

8 

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 

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 

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). 

A-12 
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 

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 

a 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 fromone 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 athe 

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. 

A-13
 
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 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. 

12The 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). 

13As noted earlier, section 107(r)(2) provides EPA with a windfall lien on the property. 

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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. 

1.	 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 facilA-15 
ity 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). 

2.	 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. 

3.	 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 

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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 sitespecific experiences and 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). 

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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 

A-18
 
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 √√√

No affiliation demonstration √√∗

Compliance with land use 

restrictions and institutional 

controls √√√

Taking reasonable steps √√√

Cooperation, assistance, 

access √√√

Compliance with information 

requests and administrative 

subpoenas 

√√∗ ∗

Providing legally required 

notices √√∗ ∗ ∗

∗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). 

∗ ∗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. 

∗ ∗ ∗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. 

A-19
 
 

Attachment B
 

Resonable 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 sitespecific, 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.1 

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 

1 The Brownfields Amendments did not alter CERCLA § 114(a), which provides: 

“[n]othing in this chapter shall be construed or interpreted as preempting any Sate 

from imposing any additional liability or requirements with respect to the release 

of hazardous substances within such State.” 

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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. 

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); NewYork 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, 

A-21
 
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 onsite 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 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. 

A-22
 
 

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 

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. 

A-23
 
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? 

A-24
 
 

A8: Generally, where the property owner is the first to discover the contamination, she should 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 EPAApproved 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. 

A-25
 
Attachment C
 

Sample Federal Superfund Interest
 

Resonslbe 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 requestor]: 

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 

A-26
 
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 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] A-27 

Appendix B 

Brownfields Enforcement 

and Land Revitalization Policy and 

Guidance Documents 

The following documents, in alphabetical order, are available on the 

cleanup enforcement Web site and contained within the Superfund, 

Brownfields, and RCRA Cleanup policy and guidance document 

databases, all accessible from the Information Resources section of 

the cleanup enforcement Web site at http://www.epa.gov/compliance/ 

resources/policies/cleanup/index.html. 

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-cercla-mem.pdf 

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 

B-1 
 

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-brwn-mem.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-elem-ref.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-prop-faq.pdf 

B-2 
 

 

Environmentally Responsible, Redevelopement & 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 

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-aqui-rpt.pdf 

Guidance for Preparing Superfund Ready for Reuse 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-cmpt.pdf 

B-3 
 

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-cont-mem.pdf 

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-windfall-lien.pdf 

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 

B-4 
 

 

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-msw-exempt.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-elem-guide.pdf 

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 

B-5 
 

 

 

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-cercla-mem.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-enfinvol-mem.pdf 

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-aquis-mem.pdf 

B-6 
 

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-let-mem.pdf 

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-owner-rpt.pdf 

Prospective PurchaserAgreements 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/swerosps/rcrabf/pdf/memoppa.pdf 

B-7 
 

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-small-bus-mem.pdf 

Revised Settlement Policy and Contribution Waiver Language Regarding Exempt De Micromis and Non-Exempt 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-exmpt-dmicro-mem.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 

B-8 
 

Standards and Practices forAll 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/swerosps/bf/aai/aai_final_rule.pdf 

The Effect of Superfund on InvoluntaryAcquisitions 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-involacquprty-rpt.pdf 

“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-windfall-lien-faq.pdf 

B-9 

Appendix C 

Online Resources to Cleanup 

Enforcement, Brownfields,
 

and Land Revitalization 

Information and Documents 

I. Superfund Redevelopment Program 

Superfund Redevelopment Web site 

This Web site acts as a central resource for the Superfund Redevelopment program, providing basic information about the program, 

as well as information about individual Superfund sites. This Web 

site also provides links to necessary redevelopment tools and policy 

and guidance documents to facilitate the cleanup process. 

http://www.epa.gov/superfund/programs/recycle/index.htm 

Superfund Redevelopment Tools 

The Web site provides an overview and acesss to the wide array of 

tools, resources, and services that Superfund Redevelopment has 

identified and made available for a broad range of audiences - to 

help in better understanding the status and characteristics of a site 

as well as to explore opportunities for redevelopment. 

http://epa.gov/superfund/programs/recycle/tools/index.html 

“Reusing Superfund Sites” (PDF) - October 2006 

This report provides an overview of the Superfund Redevelopment 

Initiative (SRI), a coordinated national effort to facilitate the return 

of the country’s most hazardous sites to productive use. This report details the successful attempt of communities to reclaim and 

reuse thousands of acres of idle land in partnership with SRI. 

http://epa.gov/superfund/programs/recycle/pdf/reusingsites.pdf 

C-1 
Superfund Reuse Policy and Guidance Web site 

Web site provides access to EPA policy on tools for the redevelopment of Superfund sites, including incorporating future land use considerations into the discussion of appropriate contamination remedies 

and in making Ready for Reuse (RfR) determinations. 

http://www.epa.gov/superfund/programs/recycle/policy/reuse.html 

Community Reinvestment Act Fact Sheet 

This fact sheet discusses the interaction between the 1977 Community Reinvestment Act (CRA) and environmental cleanup or redevelopment. The CRA requires banks, thrifts, and other lenders to make 

capital available in low- and moderate-income urban neighborhoods. 

In 1995, Congress revised the regulations so that lenders subject to 

the CRA can now claim community development loan credits for loans 

made to help finance environmental cleanup or redevelopment when 

it is part of a revitalization effort in low- and moderate-income community. 

http://www.epa.gov/swerosps/bf/html-doc/cra.htm 

II. Brownfields and Land Revitalization 

Brownfields and Land Revitalization Web site 

Web site contains information about EPA’s brownfields program including the Brownfields Law, EPA brownfields grants, technical tools 

and resources as well as information on brownfields projects across 

the country. 

http://www.epa.gov/swerosps/bf/index.html 

C-2 
Interim Approaches for Regional Relations with State Voluntary 

Cleanup Programs - November 14, 1996 

Sets forth the baseline criteria which EPA will employ to evaluate the 

adequacy of a state’s application for funding of a Voluntary Cleanup 

Program (VCP). These criteria will also be used during negotiation of 

Memoranda of Agreements (MOAs) which can constitute a planning 

mechanism for division of labor at sites between EPA and the states. 

http://www.epa.gov/swerosps/bf/html-doc/vcp.htm 

Technical Approaches to Characterizing and Redeveloping 

Brownfields Sites: Municipal Landfills and Illegal Dumps (PDF) -

January 2002 

Provides guidance to decision-makers, such as city planners, private 

sector developers, and others, to achieve a better understanding of the 

common technical issues involved in assessing and cleaning up 

brownfield sites. 

http://www.epa.gov/ORD/NRMRL/pubs/625r02002/625r02002.pdf 

Anatomy of Brownfields Redevelopment - October 2006 

Provides an overview of the brownfield redevelopment process. In 

addition, this document discusses the brownfields real estate redevelopment process, along with key challenges, critical participants, and 

example redevelopment scenarios. 

http://www.epa.gov/swerosps/bf/anat_bf_redev_101106.pdf 

C-3 
All Appropriate Inquiries Web site 

Web site Provides a link to the final rule establishing specific regulatory requirements for conducting all appropriate inquiries (AAI) into 

previous ownership, uses, and environmental conditions of a property for the purposes of qualifying for certain landowner liability protections under CERCLA. The final rule went into effect on November 

1, 2006. Parties may also comply with the final rule by following the 

standards set forth in the ASTM E1527-05 Phase I Environmental Site 

Assessment Process. 

http://www.epa.gov/swerosps/bf/regneg.htm 

Brownfields Federal Programs Guide (2005 Edition) - August 2005 

The guide outlines the technical and financial federal resources that 

can be leveraged for brownfields cleanup and redevelopment. This 

document also offers tips on how to successfully apply for these 

resources. 

http://www.epa.gov/swerosps/bf/partners/2005_fpg.pdf 

III. RCRA Brownfields Prevention Initiative 

RCRA Brownfields Prevention Initiative Web site 

Web site provides descriptions, official documents and links concerning the RCRA Brownfields Prevention Initiative, a program 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. 

http://www.epa.gov/swerosps/rcrabf/index.html 

C-4 
Results-Based Approaches to Corrective Action Guidance Web page -

September 2000 

Web site Provides guidance to EPA, State regulators, and owner/operators of how to incorporate results-based approaches where appropriate in their cleanups. Results-based approaches are intended to 

help identify releases and risks, and increase efficiency of facility 

cleanup. These approaches encourage technical and administrative 

innovation to achieve environmentally protective cleanups on a facility-specific basis 

http://www.epa.gov/correctiveaction/resource/guidance/gen_ca/ 

results.htm 

Results-Based Approach and Tailored Oversight Guidance (for 

Facilities Subject to Corrective Action Under Subtitle C of the 

Resource Conservation and RecoveryAct) 

Provides guidance to help State and EPA regulators, owners and operators of facilities subject to RCRA corrective action, and members of 

the public better understand EPA’s results-based strategy for RCRA 

corrective action. 

http://www.epa.gov/correctiveaction/resource/guidance/gen_ca/ 

reslt-bse.pdf 

IV. Underground Storage Tanks 

Underground Storage Tanks Web site 

Web site providing information relevant to the federal underground 

storage tank (UST) program. This site includes questions and answers 

about the UST Program, in addition to acting as a gateway to other 

helpful sites 

http://www.epa.gov/OUST/index.htm 

C-5 
Underground Storage Tanks—Lender Liability; 

Final Rule - September 7, 1995 

Final rule that limits the regulatory obligations of lending institutions 

and other persons who hold a security interest in a petroleum underground storage tank (UST) or in real estate containing a petroleum 

UST, or that acquire title or deed to a petroleum UST or facility or 

property on which an UST is located. This final rule specifies conditions under which these security interest holders may be exempted 

from a RCRA corrective action, technical, and financial responsibility 

regulatory requirements that apply to an UST owner and operator. This 

rule should result in additional capital availability for UST owners, 

many of whom are small businesses, and will assist them in meeting 

environmental requirements by improving their facilities. 

http://www.epa.gov/OUST/fedlaws/sept0795.htm 

V. Office of Solid Waste 

Office of Solid Waste Web site 

Web site provides information regarding the Office of Solid Waste’s 

(OSW) regulation of wastes under RCRA. This site also serves as a 

gateway to additional helpful sites regarding solid waste. 

http://www.epa.gov/epaoswer/osw/index.htm 

RCRA Public Participation Manual (1996 Edition) - 1996 

Serves as a “users manual” that explains how public participation works 

in the RCRA permitting process (including corrective action), and how 

citizens, regulators, and industry can cooperate to make it work better. 

It also describes a wide assortment of activities to enhance public 

participation, and includes several appendices that provide lists of 

contacts, sources of information, and examples of public participation 

tools and activities. 

http://www.epa.gov/epaoswer/hazwaste/permit/pubpart/manual.htm 

C-6 
V. Other Non-EPA Sources 

National Association of Local Government Environmental 

Professionals (NALGEP) 

Web site for the National Association of Local Government Environmental Professionals (NALGEP), a not-for-profit organization representing local government personnel responsible for ensuring environmental compliance and developing and implementing environmental 

policies and programs. 

http://www.nalgep.org/default.cfm 

International City/County Management Association (ICMA) 

Web site for the International City/County Management Association 

(ICMA), a non-profit organization that provides technical and management assistance, training, and information resources in the areas of 

performance measurement, ethics education and training, community 

and economic development, environmental management, technology, 

and other topics to its members and the broader local government 

community. ICMA cosponsors the bi-annual Brownfields conference 

with EPA. 

http://icma.org/main/sc.asp 

U.S. Green Building Council 

Web site for the U.S. Green Building Council (USGBC), a non-profit 

organization committed to expanding sustainable building practices. 

http://www.usgbc.org/ 

C-7 

Appendix D 

Brownfields Contacts 

Headquarters 

US Environmental Protection Agency 

1200 Pennsylvania Ave., NW 

Washington, DC 20460-0001 

Office of Site Remediation Enforcement 

Erin Smith 

Phone: 202-564-2038 

smith.erin@epa.gov 

Matt Sander 

Phone: 202-564-7233 

sander.matthew@epa.gov 

Office of Brownfields and Land Revitalization 

Danita Bowling 

Phone: 202-566-2025 

bowling.danita@epa.gov 

Office of Emergency and Remedial Response 

Melissa Friedland 

Phone: 703-603-8864 

friedland.melissa@epa.gov 

Office of Solid Waste (RCRA) 

Sara Rasmussen 

Phone: 703-308-8399 

rasmussen.sara@epa.gov 

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Regional Contacts 

Region 1 – CT, ME, MA, NH, RI, VT 

U.S. Environmental Protection Agency 

Region 1 

One Congress Street 

Suite 1100 

Boston, MA 02114-2023 

Diane Kelley – Brownfields 

Phone: 617-918-1424 

kelley.diane@epa.gov 

Rona Gregory – Reuse attorney 

Phone: 617-918-1096 

gregory.rona@epa.gov 

Edgar Davis – RCRA reuse 

Phone: 617-918-1379 

davis.edgar@epa.gov 

Region 2 – NJ, NY, PR, VI 

U.S. Environmental Protection Agency 

Region 2 

290 Broadway 

18th Floor 

New York, NY10007 

Ramon Torres - Brownfields 

Phone: 212-637-4309 

torres.ramon@epa.gov 

D-2
 
Michael Mintzer – Reuse attorney 

Phone: 212-637-3168 

mintzer.michael@epa.gov 

Deborah Schwenk – Reuse attorney 

Phone: 212-637-3149 

schwenk.deborah@epa.gov 

Michael Poetzsch – RCRA reuse 

Phone: 212-637-4147 

poetzsch.michael@epa.gov 

Region 3 - DE, DC, MD, PA, VA, WA 

U.S. Environmental Protection Agency 

Region 3 

1650 Arch Street 

Philadelphia, Pennsylvania 19103 

Tom Stolle - Brownfields 

Phone: 215-814-3129 

stolle.tom@epa.gov 

Chris Minshall – Reuse attorney 

Phone: 215-814-2473 

minshall.chris@epa.gov 

Deborah Goldblum – RCRA Reuse 

Phone: 215-814-3432 

goldblum.deborah@epa.gov 

Russ Fish – RCRA Reuse 

Phone: 215-8143226 

fish.russell@epa.gov 

D-3 
Region 4 – AL, FL, GA, KY, MS, NC, SC, TN 

U.S. Environmental Protection Agency 

Region 4 

Sam Nunn Atlanta Federal Center 

61 Forsyth Street 

Atlanta, GA 30303 

Michael Norman - Brownfields 

Phone: 404-562-8792 

michael.norman@epa.gov 

Karen Singer – Reuse attorney 

Phone: 404-562-9540 

singer.karen@epa.gov 

Amy McLaughlin – RCRA reuse 

Phone: 404-562-8776 

mclaughlin.amy@epa.gov 

Region 5 – IL, IN, MI, MN, OH, WI 

U.S. Environmental Protection Agency 

Region 5 

77 West Jackson Boulevard 

Chicago, Illinois 60604-3507 

Deborah Orr - Brownfields 

Phone: 312-886-7576 

orr.deborah@epa.gov 

Terry Stanuch – Reuse attorney 

Phone: 312-886-8044 

stanuch.terry@epa.gov 

D-4 
Ann Wentz – RCRA reuse 

Phone: 312-886-8097 

wentz.ann@epa.gov 

Gary Victorine – RCRA reuse 

Phone: 312-886-1479 

victorine.gary@epa.gov 

Region 6 – AR, LA, MN, OK, TX 

U.S. Environmental Protection Agency 

First Interstate Bank Tower at Fountain Place 

1445 Ross Avenue, Suite 1200 

Dallas, Texas 75202-2733 

Monica Smith - Brownfields 

Phone: 214-665-6780 

smith.monica@epa.gov 

Barbara Nann – Reuse attorney 

Phone: 214-665-2157 

nann.barbara@epa.gov 

Jeanne Schulz – RCRA reuse 

Phone: 214-665-7254 

schulz.jeanne@epa.gov 

Region 7 – IA, KS, MOK NE 

U.S. Environmental Protection Agency 

Region 7 

901 N. 5th Street 

Kansas City, Kansas 66101 

D-5 
Susan Klein - Brownfields 

Phone: 913-551-7786 

klein.susan@epa.gov 

Robert Richards – Reuse attorney 

Phone: 913-551-7502 

richards.robert@epa.gov 

Stephanie Doolan – RCRA reuse 

Phone: 913-551-7719 

doolan.stephanie@epa.gov 

Deborah Kennedy – RCRA reuse 

Phone: 913-551-7628 

kennedy.deborah@epa.gov 

Region 8 – CO, MT, ND, SD, UT, WY 

U.S. Environmental Protection Agency 

Region 8 

1595 Wynkoop Street 

Denver, Colorado 80202-1129 

Dan Heffernan - Brownfields 

Phone: 303-312-7074 

heffernan.dan@epa.gov 

Michael Gleason – Reuse attorney 

Phone: 303-312-6898 

gleason.michael@epa.gov 

Matt Cohn – Reuse attorney 

Phone: 303-312-6853 

cohn.matthew@epa.gov 

D-6
 
Bill Rothenmeyer – RCRA reuse 

Phone: 303-312-6045 

rothenmeyer.william@epa.gov 

Region 9 – AZ, CA, HO, NV, AS, GU 

US EPA Region 9 

75 Hawthorne Street, SFD 1-1 

San Francisco, California 94105 

Carolyn Douglas - Brownfields 

Phone: 415-972-3092 

douglas.carolyn@epamail.epa.gov 

Marie Rongone – Reuse attorney 

Phone: 415-972-3891 

rongone.marie@epa.gov 

Steve Armann – RCRA reuse 

Phone: 415-972-3352 

armann.steve@epa.gov 

Region 10 – AK, ID, OR, WA 

U.S. Environmental Protection Agency 

Region 10 

1200 Sixth Avenue 

Seattle, Washington 98101 

Susan Morales - Brownfields 

Phone: 206-553-7299 

morales.susan@epa.gov 

D-7 
Kelly Cole – Reuse attorney 

Phone: 206-553-1506 

cole.kelly@epa.gov 

Mike Slater – RCRA reuse 

Phone: 503-326-5872 

slater.mike@epa.gov 

D-8