Brownfields Handbook:

How to Manage Federal

Environmental Liability Risks

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EPA 330-B-01-001 Enforcement and 

November 2002 Compliance 

http://www.epa.gov/compliance/about/offices/osre.html Assurance 
Brownfields Handbook: 

How to Manage Federal 

Environmental Liability Risks 
This page is intentionally blank. 
TABLE OF CONTENTS 

The Purpose and Use of This Handbook ....................................................... 9�

Introduction to Brownfields ........................................................................... 11�

Superfund Redevelopment Initiative ................................................................. 13

RCRA Brownfields Prevention Initiative ............................................................ 15

USTfields Initiative ............................................................................................ 15

New Legislation ................................................................................................ 16

Statutory and Regulatory Provisions ............................................................ 19�

CERCLA ............................................................................................................ 19

Contiguous Property Owners, Bona Fide Prospective Purchasers, and

Innocent Landowners .................................................................................... 21

Secured Creditor Exemption ......................................................................... 25

Limitation of Fiduciary Liability ...................................................................... 27

Protection of Government Entities That Acquire

Property Involuntarily ..................................................................................... 29

De Minimis Waste Contributor Settlements, Ability to Pay, and the De

Micromis Exemption ..................................................................................... 31

Service Station Dealer Exemption................................................................. 33

Municipal Solid Waste Exemption.................................................................. 35

Brownfields Grants, State and Tribal Funding................................................ 37

Limitations on EPA CERCLA Enforcement and Cost Recovery Authority..... 39

RCRA..................................................................................................................43

Underground Storage Tanks - Lender Liability Rule........................................45

Standards Applicable to Owners and Operators of Closed and Closing

Hazardous Waste Management Facilities: Post-Closure Permit

Requirements and Closure Process .............................................................. 47

Hazardous Waste Identification Rule for Contaminated Media

(HWIR-Media) Rule ........................................................................................ 49

Corrective Action Management Unit (CAMU) CFR Amendments................. 51

EPA Policies and Guidances..................................................................... 53�

Policy Towards Owners of Residential Property at Superfund Sites ................. 55

Policy Towards Owners of Property Containing Contaminated Aquifers ........... 57

Policy on Interpreting CERCLA Provisions Addressing Lenders and

Involuntary Acquisitions by Government Entities ............................................. 59

Policy on the Issuance of EPA Comfort/Status Letters ..................................... 61

Interim Approaches for Regional Relations with State Voluntary

Cleanup Programs ............................................................................................. 63

Revised Settlement Policy and Contribution Waiver Language

Regarding Exempt De Micromis Parties ........................................................... 65

Guidance on Enforcement Approaches for Expediting

RCRA Corrective Action .................................................................................... 67

Coordination between RCRA Corrective Action and Closure and

CERCLA Site Activities ...................................................................................... 71

Comfort/Status Letters for RCRA Brownfield Properties .................................. 73
Appendices 

Appendix A - Related Policies and Guidances ................................................... 75

Appendix B - Fact Sheets .................................................................................. 95

Appendix C - Report on U.S. EPA’s Prospective Purchaser Agreements and

Comfort/Status Letters ............................................................... 183

Appendix D -Sample Comfort/Status Letters .................................................. 189

Appendix E -EPA Brownfield Contacts ............................................................ 199
Preface�

S ince the announcement of the Environmental Protection 

Agency’s (EPA) Brownfields Action Agenda in January 

1995, the Brownfields program has empowered states, tribes, 

communities, and other stakeholders to work together to assess, 

safely clean up and sustainably reuse contaminated property as 

well as prevent future brownfields. Through the brownfields 

pilot programs, more than $3.5 billion has been leveraged in 

public and private cleanups, over 3,000 properties have been 

assessed for contamination, and over $2.5 million in loans have 

been made for cleanup and reuse. In addition, EPA has entered 

into more than 150 prospective purchaser agreements and 

issued more than 1,000 comfort letters to facilitate the cleanup 

and reuse of property. 

The Office of Site Remediation Enforcement (OSRE) plays a 

key role in the success of the program through the development 

of tools that clarify and address barriers to timely cleanup and 

reuse posed by federal environmental liability. In November 

1998, EPA issued The Handbook of Tools for Managing Federal Superfund Liability Risks at Brownfields and Other Sites. 

The handbook provided a compilation of tools and a discussion 

of how to use them in evaluating the benefits of reusing a 

brownfield property. 

EPA’s Brownfields program continues to evolve. Until 1998, 

brownfields were associated primarily with Superfund liability 

and cleanup issues. As more properties were assessed through 

the pilot program, stakeholders raised concerns about environmental liabilities under the RCRA (Resource Conservation and 

Recovery Act), mirroring the Superfund experience. 

This updated edition of the handbook summarizes the tools 

available that clarify and address barriers to cleanup and reuse 

posed by RCRA. In addition, the handbook also summarizes 

the new tools and initiatives that the Agency has undertaken 

since 1995. These include the Superfund Redevelopment 
Initiative (SRI), USTfields, RCRA reforms, and improvements�

to the prospective purchaser agreement process. The new�

handbook also updates the list of related policies and guidance�

documents and EPA contacts. All of the other tools described�

in the 1998 edition remain unchanged.�

An electronic copy of the handbook may be found at�

www.epa.gov/Compliance/about/offices/osre.html. For addi-�

tional information regarding the handbook, please contact�

Elisabeth Freed at (202) 564-5117. For property-specific�

Superfund or RCRA discussions, please refer to the regional�

contact list provided in Appendix F.�

I want to acknowledge key staff - Elisabeth Freed, Lori�

Boughton, Ilana Saltzbart, Myron Eng, Shannon Kendall and�

Tessa Hendrickson - who devoted their time and creativity to�

produce this Handbook. We look forward to continuing our�

progress and commitment to removing the barriers to timely�

cleanup and reuse of all types of contaminated property.�

Barry N. Breen, Director�

Office of Site Remediation Enforcement�

8 
Purpose and Use of This Handbook 

T his handbook summarizes the statutory and regulatory 

provisions of CERCLA and RCRA, and the policy 

and guidance documents most useful in managing environmental cleanup liability risks associated with brownfields and 

other sites. 

The handbook also summarizes related documents and provides copies of relevant fact sheets and other documents, and 

lists EPA headquarters and regional contacts for cleanup and 

reuse issues. Designed for use by parties involved in the 

assessment, cleanup, and reuse of brownfields, this handbook 

provides a basic description of the purpose, applicability, and 

provisions of each tool. To gain a more complete understanding of any tool described in this handbook, please refer to 

the relevant reference documents listed in Appendix A, search 

any of EPA’s web sites listed in the Helpful Web Sites box (see 

box on page 10), or call the office number listed with the 

referenced document. The websites also provide the latest 

information and updates. 

Before developing a brownfield property, a party should collect 

and consider information on past uses and potential contamination. The party should next identify which level of government 

to consult about cleanup and liability protection, if needed. 

Most parties will find that they can proceed directly to their 

reuse activities. Others may want to pursue private mechanisms 

such as indemnification or insurance or work at the state level 

and make use of existing state tools (see box on page 14). If the 

contamination on the property warrants EPA’s attention under 

CERCLA or RCRA, the party should first determine if EPA or 

the state is taking or plans to take action at the property. After 

determining where the property fits in the federal or state 

cleanup pipeline, parties should find this handbook helpful in 

deciding which tool or tools are most appropriate to help them 

manage their federal CERCLA or RCRA liability risks. 

9 
Helpful Web Sites 

The following web sites 

contain additional information about issues addressed in this handbook: 

•Office of Site Remediation 

Enforcement: 

www.epa.gov/compliance/ 

about/offices/osre.html 

•Brownfields: 

www.epa.gov/brownfields 

•Office of Solid Waste: 

www.epa.gov/osw 

•Superfund: 

www.epa.gov/superfund 

•Superfund Redevelopment 

Initiative: 

www.epa.gov/superfund/ 

programs/recycle 

•Federal Register: 

www.archives.govfederal 

_register/index.html 

•Code of Federal Regulations: 

www.access.gpo.gov/nara/ 

cfr 

•U.S. Code: 

uscode.house.gov 

Both CERCLA and RCRA 

are designed to protect human 

health and the environment 

from the dangers of hazardous 

waste. These two programs, 

however, take fundamentally 

different approaches to addressing 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, is relevant primarily 

when mismanagement has 

already occurred. 

Many prospective purchasers, 

developers, and lenders have 

avoided getting involved with 

brownfield properties because 

they fear that they too might 

be held liable under CERCLA 

or RCRA someday. The vast 

majority of brownfield properties will never require EPA’s 

attention under CERCLA, 

RCRA, or any other federal 

law. Accordingly, parties’ 

fears of potential liability, 

rather than their actual incurrence of liability, are the 

primary obstacles to the 

redevelopment and reuse of 

brownfields. EPA hopes that 

the remaining sections of this 

handbook will assist in eliminating or reducing these fears. 

10 
Introduction to Brownfields 

I

n the United States, real property is one of the most valuable 

economic assets. While this country puts most real property 

into productive use, some properties lie abandoned or idled. 

These properties, called “brownfields,” may remain unused or 

underutilized because of actual contamination from past commercial or industrial use or because people fear the property’s 

previous use may have left contamination. This fear may result 

in relatively clean property remaining idle because parties, who 

otherwise would redevelop brownfields, may search out unused 

property, or “greenfields,” to avoid the costs associated with the 

cleanup of contamination. 

The Environmental Protection Agency (“EPA” or “Agency”) 

believes that the cleanup of contaminated property, including 

brownfields, and the clarification of federal environmental 

cleanup liability, are the foundation for sustainable reuse of 

previously used property. By fostering the cleanup and 

appropriate reuse of brownfields, EPA fulfills its mission to 

protect human health and the environment as well as to conserve greenfields from development that leads to environmental degradation. 

EPA recognizes that some private parties believe federal environmental laws and policies have created roadblocks to reusing 

property. The federal environmental laws that most affect the 

cleanup and reuse of brownfields are CERCLA (often referred 

to as Superfund) and RCRA. The cleanup provisions of these 

Statutory Definition of “Brownfields” 

The Small Business Liability Relief and Brownfields 

Revitalization Act of 2002 defines a ‘brownfield site’ 

as “real property, the expansion, redevelopment, or reuse 

of which may be complicated by the presence or potential presence of a hazardous waste substance, pollutant, 

or contaminant.” 

11 
laws require EPA to focus its 

attention first on cleaning up 

the nation’s most toxic waste 

sites in order to protect human 

health and the environment. 

Under CERCLA or RCRA, 

the current owner or operator 

of a contaminated property 

may be held responsible for 

the cleanup. Although 

potential liability is a valid 

and serious concern for 

landowners, it is important to 

keep this concern within 

context. For example, in 1995, 

the Office of Technology 

Assessment estimated that 

450,000 brownfields existed 

nationwide. A more recent 

report from the January 2000 

U.S. Conference of Mayors 

provides a national tally of 

600,000. Only about 8% of 

all brownfields are considered 

for Superfund’s National 

Priorities List (NPL) (a list of 

the nation’s worst hazardous 

waste sites) with less than 1% 

actually placed. Therefore, at 

least 99% of all the potential 

brownfield properties across 

the country will not require 

federal EPA action. Although 

the existence and applicability of federal environmental 

cleanup laws and regulaThe Local Nature 

of Reuse Projects 

By its very nature, property 

reuse is a local activity. 

Parties with the greatest 

stake in the economic and 

environmental benefits of a 

reuse project are the 

owner(s), surrounding 

property owners, local citizens, developer(s), local 

government, and state government. Because of their 

stake in the project, these 

parties are generally in the 

best position to plan, implement, and oversee required 

cleanup and reuse activities. 

There are many issues that 

affect property reuse; 

federal environmental 

cleanup liability is only 

one. After a party has a 

clear understanding of its 

federal environmental 

cleanup liability risks and 

the ways it can minimize 

them, that party may work 

primarily or exclusively 

with state government, 

local government, and 

community interests in addressing non-federal issues 

and planning and implementing its reuse project. 

12 
tions could have an impact 

on development, the reality 

is that EPA has taken action 

at very few brownfield 

properties. 

The relatively small number 

of these brownfield sites on 

the NPL is just one fact 

illustrating that federal environmental cleanup liability 

risks associated with 

brownfields are not nearly as 

large as one might imagine. 

Even for risks that could be 

significant, both Congress and 

EPA have developed mechanisms that can help parties 

minimize and manage the 

risks of reusing brownfields. 

The fact that private parties, 

states, tribes, municipalities, 

communities, and federal 

agencies collaborate to effectively clean up and reuse 

property indicates that these 

tools are working. Evidence 

of growth and interest in 

brownfields reuse is demonstrated by several initiatives 

EPA has recently undertaken. 

Superfund Redevelopment 

Initiative (SRI), RCRA 

Brownfields Prevention 

Initiative, and USTfields are 

three such efforts to more 

broadly integrate brownfields 

approaches into remedial 

cleanup programs. 

New Initiatives 

Superfund 

Redevelopment Initiative 

In an effort to help communities return Superfund sites to 

productive use, EPA launched 

SRI. The goal of SRI is to 

make sure that the Agency 

and its partners have the 

necessary tools to fully explore and implement land use 

opportunities at every site. 

This coordinated program 

uses a wide variety of tools, 

such as facilitation services, 

that bring liable parties, 

community groups, and local 

government leaders together 

to determine the future use of 

a Superfund site once it is 

clean. The site-specific nature 

of Superfund remedy decisions allow EPA regional staff 

to work with stakeholders to 

determine the best cleanup 

approach to ensure successful 

reuse. 

A cornerstone of SRI is the 

pilot program. Since the 

summer of 1999, EPA an13 
nounced 50 pilots that would 

receive national recognition 

through the development of 

reuse plans; use of local 

government and Agency 

cooperative agreements; 

workshops that bring together 

pilot participants to exchange 

information and share ideas; 

and a partnership conference 

where pilot participants meet 

with private organizations to 

develop alliances. 

SRI has created a climate 

where liable parties, local 

governments, communities, 

developers, and others are 

rethinking the value of 

Superfund sites. They are 

now more likely to consider 

these sites for a variety of new 

uses - from golf courses and 

parks to national retail stores 

and transportation hubs. To 

date, 260 NPL sites are now, 

Private Tools 

Although not addressed in this handbook, various private 

tools can be used to manage environmental liability risks 

associated with brownfields and other properties. These 

tools may include the following: 

•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. 

14 
or soon will be, in reuse; onsite businesses employ over 

15,000 people with an annual 

income of half a billion 

dollars; and over 60,000 acres 

have some ecological or 

recreational reuse. 

RCRA Brownfields 

Prevention Initiative 

The first brownfields assessment pilots highlighted the 

need to address environmental 

issues beyond the Superfund 

context. In June 1998, EPA 

announced the RCRA 

Brownfields Prevention 

Initiative. The objective of 

the Initiative is to prevent 

future Superfund sites or 

brownfields by using 

brownfields tools to clean up 

and provide long-term sustainable reuse of RCRA 

facilities. Through the Initiative, EPA is exploring opportunities within the existing 

statutory and regulatory 

framework to facilitate the 

reuse of RCRA sites. The 

goal is to foster a 

“brownfields” culture in 

RCRA cleanup programs by 

working together across EPA, 

states, tribes, industry, and 

communities to tap the redevelopment potential of RCRA 

sites. To date, the Initiative 

components include outreach 

workshops; industry and 

community stakeholder 

dialogue sessions to identify 

reuse impediments; 

informational documents; and, 

nine pilots. 

USTfields Initiative 

The Office of Underground 

Storage Tanks (OUST) defines USTfields as “abandoned or underused industrial 

and commercial properties 

where redevelopment is 

complicated by real or perceived environmental contamination from federallyregulated underground storage 

tanks (USTs).” Of the estimated 450,000 to 600,000 

brownfields sites in the United 

States, approximately 100,000 

to 200,000 contain abandoned 

USTs or are impacted by 

petroleum tank leaks. The 

Brownfields program, however, is unable to devote funds 

toward USTfields because 

CERCLA prohibits the use of 

Trust Fund money on most 

petroleum sites. 

The USTfields Initiative plans 

to use the same kind of prob15 
lem-solving methods implemented by the Brownfields program. This new program will provide 50 grants to states and 

tribes for community pilot projects. EPA will allot each pilot up 

to $100,000 to assess and/or clean up sites to ready them for 

reuse. The pilots are intended to supplement or coordinate with 

existing EPA cleanup and redevelopment pilots, such as 

brownfields assessment pilots. The USTfields pilots must 

involve corrective action with respect to petroleum releases 

from underground storage tanks and address the future reuse of 

sites. OUST believes the Initiative will demonstrate how to 

effectively assess and clean up petroleum-impacted sites and 

foster reuse using limited resources. 

New Legislation 

The Small Business Liability Relief and Brownfields Revitalization Act, P.L. 107-118 ("SBLRBRA"or “the Act”) signed 

into law by the President on January 11, 2002, creates new 

exemptions from Superfund liability, authorizes brownfields 

revitalization funding, and provides assistance to state and local 

site clean-up programs. 

The SBLRBRA consists of two titles. Title I addresses liability 

exemptions for parties who generate and transport small quantities of hazardous substances and certain generators of municipal solid waste. Title I also provides for expedited settlements 

with certain parties that can demonstrate a limited or inability 

to pay their share of response costs. The Title II amendments 

focus on facilitating the responsible cleanup and re-use of 

contaminated properties. The amendments provide specific 

statutory authority for the U.S. Environmental Protection 

Agency’s (EPA or Agency) brownfields program and authorize 

appropriations to fund brownfields grants and grants for state 

and tribal response programs. Title II also provides conditional 

exemptions from CERCLA liability for contiguous property 

16 
clarifies the pre-existing innocent landowner defense. Finally, 

the amendments place certain limits on EPA’s use of its enforcement and cost recovery authorities at low-risk sites where 

a person is conducting a response action in compliance with a 

state program. 

The complete text of SBLRBRA may be found at http:// 

www.epa.gov/brownfields/html-doc/hr2869.htm. A summary 

of SBLRBRA may be found at http://www.epa.gov/swerosps/ 

bf/html-doc/2869sum.htm. A summary of the liability provisions may be found in Appendix B. 

17 
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18
Statutory and Regulatory Provisions 

CERCLA 

As a result of several well-publicized hazardous waste disposal 

disasters in the 1970’s, Congress passed the Comprehensive 

Environmental Response, Compensation, and Liability Act 

(CERCLA) in 1980. CERCLA, also known as Superfund, 

authorizes EPA to respond to environmental emergencies 

involving hazardous wastes or pollutants and contaminants, 

initiate investigations and cleanups, and take enforcement 

action against responsible parties. To provide money for 

these activities, Congress established a trust fund that was 

financed by taxes on the manufacture and import of chemicals 

and petroleum. 

EPA may exercise its response authority through removal or 

remedial actions. Removal actions are implemented when 

there is an immediate threat to human health and the environment. EPA has used removal actions to avert fires and explosions, prevent exposure to acute toxicity, and protect drinking 

water supplies. Removal actions typically take less than 

twelve months to implement and cost less than two million 

dollars. Remedial actions address long-term threats to human 

health and the environment caused by more persistent contamination sources. Consequently, they usually take much longer 

to complete and cost considerably more to implement than 

removal actions. 

Congress designed CERCLA to ensure that those who caused 

the pollution, rather than the general public, pay for the 

cleanup. In order to be held liable for the costs or performance 

of cleanup under CERCLA, a party must fall within one of four 

categories found in CERCLA section 107(a) (see box). Using 

CERCLA’s polluter pays liability scheme, EPA has ensured the 

successful cleanup of many of the nation’s worst hazardous 

waste sites by those responsible for the contamination – the 

Potentially Responsible Parties (PRPs). 

19 
Despite its broad categories of 

liable parties, CERCLA also 

provides various forms of 

liability protection which 

extend to all lawsuits brought 

under CERCLA, whether 

initiated by EPA or by a 

private party. A party who 

satisfies the statutory provisions can avoid lawsuits 

brought by EPA seeking 

cleanup costs or a response 

action. Additionally, the party 

would be protected from third 

parties who are trying to 

recoup money they expended 

in cleaning up a site. 

CERCLA’s Four 

Liability Categories 

• Current owner or operator 

of the facility; 

• Owner or operator of the 

facility at the time of 

disposal of hazardous 

substances; 

• Person who generated or 

arranged for the disposal 

or treatment of hazardous 

substances; or 

• Transporter of the 

hazardous substances, if 

this person selected the 

disposal or treatment site. 

CERCLA’s Liability Scheme 

Under CERCLA, liability for cleanup is strict and joint 

and several, as well as retroactive. The implications of 

these features are as follows: 

• Strict -A party may be held liable 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, 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. 

20 
Statutory and Regulatory Provisions 

Contiguous Property Owners, Bona 

Fide Prospective Purchasers, and 

Innocent Landowners 

The SBLRBRA creates two new conditional exemptions from 

CERCLA “owner/operator” liability for contiguous property 

owners and bona fide prospective purchasers (BFPP). Again, 

these exemptions embody aspects of pre-existing EPA policies. 

The new law also modified the existing innocent landowner 

defense by clarifying the meaning of “all appropriate 

inquiries.” All three provisions embody some common 

elements for persons to maintain non-liable status while also 

including unique provisions and requirements. 

Section 221 of the Act adds new § 107(q) which exempts from 

owner or operator liability persons that own land contaminated 

solely by a release from contiguous, or similarly situated 

property owned by someone else. In the case of a contiguous 

property owner, the owner must not have known or had reason 

to know of the contamination at the time of purchase and must 

not have caused or contributed to the contamination. The 

section also modifies what constitutes appropriate care/ 

reasonable steps for contiguous property owners by clarifying 

that the requirement does not obligate a contiguous property 

owner to conduct groundwater investigations or remediate 

groundwater contamination except in accordance with EPA’s 

pre-existing policy. 

The new law generally provides greater protections for 

contiguous property owners than EPA’s existing policy on 

owners of contaminated aquifers. The new law does not limit 

21 
the exemption to properties contaminated by groundwater but 

may also apply to soil contamination resulting from 

neighboring properties. The Act also grants EPA the authority 

to provide assurances that the Agency will not take action 

against a person and protection from third party suits. As in 

EPA’s Contaminated Aquifer Policy, a person who purchases 

with knowledge of the contamination cannot claim the 

exemption; however, the new law notes that a party who does 

not qualify for the exemption for this reason may still qualify 

as a BFPP. 

The most notable aspect of the BFPP provision is that for the 

first time Congress has limited the CERCLA liability of a party 

who purchases real property with knowledge of the 

contamination. The caveats to this exemption, in addition to 

the common elements, include a requirement that all disposal 

takes place prior to the date of purchase, that the person does 

not impede a response action, and that the property may be 

subject to a “windfall lien”. The windfall lien provision 

provides for a lien on the property of a BFPP if EPA has 

unrecovered response costs and the response action increased 

the fair market value of the property. The lien arises as of the 

date the response cost was incurred and the amount cannot 

exceed the increase in fair market value attributed to the 

response action. 

EPA’s policy on prospective purchaser agreements (PPAs) 

proved one of the most successful and high profile 

administrative liability reforms prior to enactment of the new 

law. Immediately after passage, EPA was asked repeatedly 

whether the Agency would continue to issue PPAs. Many 

people suggested that EPA needs to continue the practice, 

despite the fact that the legislation provides an exemption and 

confronts an ongoing complaint, from some of these same 

people, that EPA should not be involved in private real estate 

transactions. 

22 
To address this issue, on May 31, 2002, EPA’s Office of Site 

Remediation Enforcement issued new guidance entitled Bona 

Fide Prospective Purchasers and the New Amendments to 

CERCLA (also found at http://epa.gov/compliance/resources/ 

policies/cleanup/superfund/bonf-pp-cercla-mem.pdf). This 

guidance states that “EPA believes that, in most cases, the 

Brownfields Amendments make PPAs from the federal 

government unnecessary.” Therefore, in the majority of cases 

EPA intends for the law to be self-implementing. However, the 

guidance does recognize the following two exceptions where 

EPA may enter into an agreement with the purchaser: 1) there 

is likely to be a significant windfall lien needing resolution; 

and 2) the transaction will provide significant public benefits 

and a PPA is needed to ensure the transaction will take place. 

The contiguous property owner exemption, the definition of 

what constitutes a BFPP, and the innocent landowner defense 

found in CERCLA Section 107(b)(3) and the definition of 

“contractual relationship” in Section 101(35), all contain the 

following common obligations which persons seeking these 

exemptions must meet: 

C conduct “all appropriate inquiry” prior to purchase of the 

property; 

C not be potentially liable or affiliated with any person 

potentially liable; 

C exercise appropriate care by taking reasonable steps to “stop 

any continuing release; prevent any threatened future 

release; and prevent or limit any human, environmental, or 

natural resource exposure to any previously released 

hazardous substance;” 

C provide full cooperation, assistance, and access to persons 

undertaking a response action or natural resource 

restoration; 

C comply with all governmental information requests 

C comply with land use restrictions and not impede the 

performance of institutional controls; and 

C provide all legally required notices regarding releases of 

hazardous substances 23 
At time of publication, EPA is considering whether to produce 

general guidance on these “common elements.” EPA has heard 

from stakeholders that they need clarification of these 

requirements to ensure they take appropriate actions to avoid 

liability. EPA would like to ensure national consistency and 

provide direction where needed. However, requirements such 

as what constitutes appropriate care/reasonable steps will 

greatly depend on site specific circumstances. 

Changes to CERCLA Section 101(35)(B) now define “all 

appropriate inquiries” for purposes of all three provisions. 

First, the Act directs EPA to promulgate regulations based on 

statutory criteria within two years of date of enactment, 

establishing standards for all appropriate inquiry. For 

purchases prior to issuance of these regulations, the Act utilizes 

two standards based on date of purchase. For purchases prior 

to May 31, 1997, the Act sets forth a narrative standard, 

directing courts to consider such factors as, inter alia, 

specialized knowledge of the defendant, the obviousness of the 

contamination, and relationship of purchase price to property 

value. For purchases after May 31, 1997, the Act states that 

procedures set forth in the American Society for Testing and 

Materials, Standard Practice for Environmental Site 

Assessment: Phase 1 Environmental Site Assessment Process, 

Standard E1527-97 shall satisfy the requirement. The section 

also provides that for purchasers of property for residential use 

or similar use by a nongovernmental or noncommercial entity a 

facility inspection and title search shall fulfill the requirements. 

24 
Statutory and Regulatory Provisions 

Secured Creditor Exemption 

CERCLA Section 101(20)(A) contains a secured creditor 

exemption that eliminates owner/operator liability for lenders 

who hold indicia of ownership in a CERCLA facility primarily 

to protect their security interest in that facility, provided they 

do not participate in the management of the facility. 

Before 1996, CERCLA did not define the key terms used in 

this provision. As a result, lenders often hesitated to loan 

money to owners and developers of contaminated property for 

fear of exposing themselves to potential CERCLA liability. In 

1992, EPA issued the “CERCLA Lender Liability Rule” to 

clarify the secured creditor exemption. After the Rule was 

invalidated by a court in 1994, Congress incorporated many 

sections of the Rule into the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996. That Act 

amended CERCLA’s secured creditor exemption to clarify the 

situations in which lenders will and will not be protected from 

CERCLA liability. The amended exemption appears at 

CERCLA Section 101(20)(E)-(G). 

Other Considerations 

The 1996 amendment also protects lenders from contribution 

actions and government enforcement actions. Regardless of 

CERCLA’s secured creditor exemption from owner/operator 

liability, a lender may be liable under CERCLA as a generator 

or transporter if it meets the requirements outlined in CERCLA 

Section 107 (a)(3) or (4). In June 1997, EPA issued a lender 

policy that further clarifies the liability of lenders under 

CERCLA (see page 59). Statutory and Regulatory Provisions 

25 
“Participation in Management” Defined 

A lender “participates in manage- • Provides financial or other 

ment” (and will not qualify for the advice in an effort to prevent or 

exemption) if the lender: cure default; and, 

• Exercises decision-making • Restructures or renegotiates the 

control over environmental terms of the security interest; 

compliance related to the provided the actions do not rise 

facility, and in doing so, to the level of participating in 

undertakes responsibility for management.

hazardous substance handling After foreclosure, a lender who did

or disposal practices; or not participate in management

• Exercises control at a level prior to foreclosure is not an 

similar to that of a manager of “owner or operator” if the lender: 

the facility, and in doing so, • Sells, releases (in the case of a assumes or manifests

responsibility with respect to lease finance transaction), or

liquidates the facility; 

1. Day-to-day decisionmaking on environmental • Maintains business activities or 

compliance, or winds up operations; 

2. All, or substantially all, of • Undertakes a response action 

the operational (as opposed under CERCLA section 

to financial or 107(d)(1) or under the direction 

administrative) functions of of an on-scene coordinator; or, 

the facility other than • Takes any other measure to

environmental compliance. preserve, protect, or prepare the

The term “participate in manage- facility for sale or disposition;

ment” does not include certain provided the lender seeks to

divest itself of the facility activities such as when the lender: at the earliest practicable,

• Inspects the facility; commercially reasonable time, 

on commercially reasonable 

• Requiries a response action or terms. EPA considers this test 

other lawful means to address to be met if the lender, within 

a release or threatened release; 12 months after foreclosure, 

• Conducts a response action lists the property with a broker 

under CERCLA section or advertises it for sale in an 

107(d)(1) or under the direction appropriate publication. 

of an on-scene coordinator; 

26 
Statutory and Regulatory Provisions 

Limitation of Fiduciary Liability 

A “fiduciary” is a person who acts for the benefit of another 

party. Common examples include trustees, executors, and 

administrators. CERCLA Section 107(n), added by the Asset 

Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996, protects fiduciaries from personal liability in 

certain situations, provides a liability limit for those fiduciaries 

who are found liable, and describes situations in which fiduciaries will and will not receive this statutory protection. 

CERCLA’s fiduciary provision, however, does not protect the 

assets of the trust or estate administered by the fiduciary. 

27 
Fiduciary Liability 

For actions taken in a fi- trustee, executor, or adduciary capacity, liability ministrator, among other 

under any CERCLA pro- things. It does not include 

vision is limited to assets a person who: 

held in the fiduciary ca-

• Acts as a fiduciary with pacity. A fiduciary will respect to a for-profit trust or not be liable in its per- other for-profit fiduciary

sonal capacity for certain estate, unless the trust or 

actions such as: estate was created: 

• Undertaking or requiring ° Because of the incapacity 

another person to undertake of a natural person, or 

any lawful means of ° As part of, or to facilitate, 

addressing a hazardous an estate plan. 

substance; • Acquires ownership or 

• Enforcing environmental control of a facility for the 

compliance terms of the purpose of avoiding liability 

fiduciary agreement; or of that person or another 

• Administering a facility that person. 

was contaminated before Nothing in the fiduciary

the fiduciary relationship subsection applies to a began. person who: 

The liability limitation 

and “safe harbor” de- • Acts in a beneficiary or nonfiduciary capacity, directly or scribed above do not limit indirectly, and benefits from

the liability of a fiduciary the trust or fiduciary 

whose negligence causes relationship; or 

or contributes to a release • Is a beneficiary and fiduciary

or threatened release. with respect to the same

fiduciary estate and, as a

The term “fiduciary” fiduciary, receives benefits

means a person acting for exceeding customary or 

the benefit of another reasonable compensation. 

party as a bona fide 

28 
Statutory and Regulatory Provisions 

Protection of Government Entities 

That Acquire Property Involuntarily 

CERCLA sections 101(20)(D) and 101(35)(A) protect federal, 

state, and local government entities from owner/operator 

liability if they involuntarily acquire contaminated property 

while performing their governmental duties. If a unit of state 

or local government makes an involuntary acquisition, it is 

exempt from owner/operator liability under CERCLA. Additionally, a state, local, or federal government entity that makes 

an involuntary acquisition will have a third-party defense to 

owner/operator liability under CERCLA if: 

• The contamination occurred before the government entity acquired the 

property; 

• The government entity exercised due care with respect to the 

contamination (e.g., did not cause, contribute to, or exacerbate the 

contamination); and 

• The government entity took precautions against certain acts of the party 

that caused the contamination and against the consequences of those 

acts. 

Regulations set forth at 40 CFR 300.1105, and validated by 

the 1996 Asset Conservation, Lender Liability, and Deposit 

Insurance Protection Act, provide some examples of involuntary acquisitions. 

As the following examples indicate, a government entity need 

not act completely passive in order to acquire property involuntarily. Often government entities must take some sort of 

discretionary, volitional action before they can acquire property 

following circumstances such as abandonment, bankruptcy, or 

tax delinquency. In these cases, the “involuntary” status of the 

acquisition is not jeopardized. 

29 
Acceptable Involuntary Acquisitions 

EPA considers an acquisition to be “involuntary” if the 

government’s interest in, and ultimate ownership of, the property exists only because the conduct of a non-governmental 

party gives rise to the government’s legal right to control or 

take title to the property. 

Involuntary acquisitions by government entities include the 

following: 

• Acquisitions made by a government entity functioning as a sovereign 

(such as acquisitions following abandonment or tax delinquency); 

• Acquisitions made by a government entity acting as a conservator or 

receiver pursuant to a clear and direct statutory mandate or regulatory 

authority (such as acquisitions of the security interests or properties 

of failed private lending or depository institutions); 

• Acquisitions made by a government entity through foreclosure and 

its equivalents while administering a governmental loan, loan 

guarantee, or loan insurance program; and 

• Acquisitions made by a government entity pursuant to seizure or 

forfeiture authority. 

Other Considerations 

A government entity will not have a CERCLA liability exemption or defense if it has caused or contributed to the release or 

threatened release of contamination. As a result, acquiring 

property involuntarily does not unconditionally or permanently 

insulate a government entity from CERCLA liability. Furthermore, the liability exemption and defense described above 

do not shield government entities from liability as generators or 

transporters of hazardous substances under CERCLA section 

107(a)(3) or (4). 

In June 1997, EPA issued a policy that further clarifies the 

CERCLA liability of government entities that involuntarily 

acquire property (see page 59 and fact sheet on page 125). 

30 
Statutory and Regulatory Provisions 

De Minimis Waste Contributor 

Settlements , Ability to Pay, and the 

De Micromis Exemption 

At a CERCLA site, some parties may have contributed only 

minimal amounts of hazardous substances compared to the 

amounts contributed by other parties. Under CERCLA section 

122(g), these contributors of small amounts may enter into de 

minimis waste contributor settlements with EPA. Such a 

settlement provides the waste contributor with a covenant not 

to sue and contribution protection from the United States. As a 

result, the settling party is protected from legal actions brought 

by EPA or other parties at the site. In exchange for the settlement, the de minimis party agrees to provide funds, based on 

its share of total waste contribution, toward cleanup, or to 

undertake some of the actual work. 

Section 102(b) of SBLRBRA amended Section 122(g) of 

CERCLA and grants EPA the authority to enter into expedited 

settlements with persons who demonstrate an inability or 

limited ability to pay response costs. The Act directs EPA to 

consider whether the person can pay response costs and still 

maintain basic business operations, which includes consideration of financial condition and ability to raise revenues. The 

SBLRBRA also requires EPA to provide a written determination of ineligibility to a potentially responsible party that 

requests a settlement under any provision in Section122(g). 

Any determination regarding eligibility is not subject to judicial review. 

Section 102(a) of SBLRBRA also added new §107(o) to 

CERCLA and exempts generators and transporters of de 

micromis quantities of hazardous substances from response 

31 
cost liability.

1 The new law requires a person seeking the 

exemption to demonstrate that “the total amount of the material 

containing hazardous substances they contributed was less than 

110 gallons of liquid materials and 200 pounds of solid 

materials” and that “all or part of disposal, treatment, or 

transport occurred before April 1, 2001.” This exemption is 

subject to the following exceptions: 1) if the materials 

contribute significantly, either on their own or in the aggregate, 

to the cost of the response action or natural resource to the cost 

of the response action or natural resource restoration; 2) if the 

person fails to comply with an information request; 3) if the 

person impedes a response action or natural resource 

restoration; or 4) if the person has been convicted of a criminal 

violation for conduct to which the exemption would apply. 

The Act provides significant protection for generators and 

transporters of de micromis amounts of hazardous substances 

at NPL sites where disposal, treatment or transport occurred 

after April 1, 2001. While EPA is not directed to provide 

contribution protection to these parties, the Act includes 

substantial disincentives for litigation by private party 

plaintiffs. First, the exemption shifts the burden of proof to 

private party plaintiffs to show that the exemption does not 

apply. Second, the new law makes private party plaintiffs liable 

for the defendant’s costs and fees if a court finds the defendant 

to be exempt under this provision. These provisions should 

force potentially responsible parties seeking contribution for 

response costs to exercise greater diligence in respect to whom 

they drag into court. 

The complete text of SBLRBRAmay be found at http:// 

www.epa.gov/brownfields/html-doc/hr2869.htm 

1. § 102(a), 115 Stat. 2356 (to be codified at 42 U.S.C. § 9607(o))(subsequent 

citations are to 42 U.S.C.). 

32 
Service Station Dealers Exemption 

The Superfund law includes a liability exemption for service 

station dealers who accept used oil for recycling. The 

exemption is meant to encourage service station dealers to 

accept used motor oil for recycling from do-it-yourself 

recyclers, i.e., people who change the oil in their own cars, 

trucks, and appliances. A dealer may be eligible for the 

exemption if the recycled oil is not mixed with any other 

hazardous substance and is managed in compliance with Solid 

Waste Disposal Act regulations. 

As long as a small quantity of used oil was removed from the 

engine of a "light duty motor vehicle" or house appliances by 

the owner, and the owner presents it to the dealer for delivery 

to an oil recycling facility, the dealer can presume that the used 

oil is not mixed with other hazardous substances. The mixing 

of the used oil with other hazardous substances is what would 

trigger Superfund liability. 

Superfund defines a service station dealer as persons who own 

or operate retail establishments that sell, repair, or service 

motor vehicles and accept recycled oil from light vehicle and 

household appliance owners for recycling. 

33 
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34
Statutory and Regulatory Provisions

Municipal Solid Waste 

Section 102(a) o f SBLRBRA also added §107(p) to CERCLA 

which exempts certain generators of municipal solid waste 

(MSW) from Superfund response cost liability at NPL sites. 

The persons covered by this exemption are owners, operators, 

and lessees of residential property; small businesses; and 

certain non-profit organizations. This exemption is subject to 

all but one of the same exceptions as found in the de micromis 

exemption. The new law defines MSW in the following two 

ways: 1) as waste generated by a household; and 2) as waste 

generated by a commercial, industrial, or institutional entity 

which is essentially the same as waste generated by a 

household, is collected as part of normal MSW collection, and 

contains no greater amounts of hazardous substances than that 

contained in the waste of a typical single family household. 

Similar to the de micromis exemption, the MSW exemption has 

burden of proof and fee shifting provisions to discourage 

litigation against exempt parties. However, the burden of proof 

provision in the MSW exemption is a bit more complicated 

because it differs based on time of disposal and applies in some 

cases to both private and governmental plaintiffs. Furthermore, 

the statute sets forth a complete bar to private party actions 

against owners, operators, or lessees of residential property 

which generated MSW. As with the de micromis exemption, 

the cost and fee shifting provision only applies to 

nongovernmental entities. 

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36
Statutory and Regulatory Provisions

Brownfields Grants, State and Tribal 

Funding 

In addition to the contiguous property owner, bona fide 

prospective purchaser, and innocent landowner provisions, Title 

II for the first time provides explicit statutory authority for 

EPA’s brownfields program. Title II also authorizes EPA to 

provide grants to states and tribes to develop response 

programs. While this article focuses on the liability provisions 

these aspects of the new law are certainly worth mentioning. 

Generally, brownfields are considered properties which have 

real or perceived contamination that discourages redevelopment 

or reuse due to the potential liability of those persons 

associated with the site. Since 1995, EPA has maintained a 

successful brownfields program aimed at promoting the 

cleanup and redevelopment of brownfield properties. The 

brownfields program has provided numerous grants and assistance 

to states and communities for brownfields assessments, 

revolving loan funds for brownfields cleanup, and job training 

and development. The program has also worked to identify 

“Showcase Communities” that serve as national models for 

successful brownfields assessments, cleanups, and 

redevelopment. 

The new law recognizes EPA’s efforts and expands the existing 

program. The Act authorizes annual appropriations of $200 

million for the brownfields grant program for fiscal years 2002 

through 2006. EPA will use appropriations to provide brownfield 

characterization and assessment grants, to capitalize revolving 

loan funds, and for the first time to provide direct grants for 

brownfields cleanup. The Act also provides an 

37 
expanded list of persons eligible for these funds that include 

states, local governments, state chartered redevelopment 

agencies, tribes, land clearance authorities, and for certain 

funds nonprofits and other private entities. The Act provides 

ranking criteria for grant distribution and directs EPA to 

provide guidance for grant applicants. EPA published guidance 

in the Federal Register on October 24, 2002 (Volume 67, 

Number 207, pp. 65348-65350) available on line at http:// 

www.epa.gov/fedreg. Fact sheets titled “Eligibility for 

Brownfields Funding” and “Summary of Brownfields Grant 

Guidelines” may be found in Appendix B. 

Title II also authorizes $50 million annually from 2002 through 

2006 to provide assistance for state and tribal response 

programs, to capitalize a revolving loan fund for brownfield 

remediation, or purchase insurance or create a risk sharing 

pool, an indemnity pool, or insurance mechanism to help fund 

response actions. To receive grants state and tribal programs 

must meet or be working towards several criteria or the state or 

tribe must have a memorandum of agreement for voluntary 

response programs with EPA. States receiving funds must also 

maintain and update annually a public record of sites going 

through a state’s response program. 

38 
Statutory and Regulatory Provisions

Limitations on the EPA CERCLA 

Enforcement and Cost Recovery 

Authority 

Section 231 of SBLRBRA amends CERCLA by adding a new 

Section 128. Section 128(b) sets forth limitations on EPA’s 

enforcement authority under Section 106(a) and cost recovery 

authority under Section 107(a). These limitations apply to 

actions against persons who have conducted or are conducting 

response actions at “eligible response sites” in compliance with 

a “State program that specifically governs response actions for 

the protection of public health and the environment.” The 

limitations only apply to response actions commenced after 

February 15, 2001 and in states that maintain a public record of 

sites being addressed under a state program in the upcoming 

year and those addressed in the preceding year. Additionally, 

these limitations are subject to specified exceptions. 

The definition of an “eligible response site” is found in new 

CERCLA Section 101(41). The definition includes 

“brownfield sites” as defined in Section 101(39)(A) and (B). 

The definition of a brownfield site is very broad in that it 

essentially captures any real property with real or perceived 

contamination and, generally, excludes facilities: 

C subject to a planned or ongoing CERCLA removal; 

listed or proposed for listing on the national priorities list; 

C subject to a unilateral administrative order, court order, 

administrativeorder on consent, or consent decree under 

CERCLA; 

C subject of a unilateral administrative order, court order, 

administrative order on consent, consent decree, or permit under 

the Resource Conservation & Recovery Act (RCRA, 42 U.S.C. 

Section 6901 et seq.), the Clean Water Act (CWA, 33 U.S.C. 

Section 1251 et seq.), the Toxic Substances Control Act (TSCA, 

15 U.S.C. Section 2601 et seq.), or the Safe Drinking Water Act 

(SDWA, 42 U.S.C. Section 300f et seq.); 

39 
C subject to corrective action under RCRA §§ 3004(u) or 3008(h), 

to which a corrective action permit or order has been issued or 

modified requiring the implementation of corrective measures; 

C a land disposal unit with closure notification submitted and a 

closure plan or permit;on land subject to the custody, jurisdiction, 

or Ccontrol of a department, agency, or instrumentality of the 

United States, except for land held in trust by the United States for 

an Indian Tribe; 

C a portion of a facility contaminated by PCBs subject to 

remediation under TSCA; or 

C a portion of a facility receiving assistance from the Leaking 

Underground Storage Tank Trust Fund (LUST Fund sites). 

For purposes of the definition of an eligible response site, 

LUST Fund sites are included. EPA may include sites 

excluded under the fourth, fifth, sixth, and eighth bullets on a 

site-by-site basis. The definition of eligible response site 

contains an additional exclusion for sites at which EPA has 

conducted a PA or SI and after consulting with the State has 

determined that the site achieves a preliminary score sufficient 

for, or otherwise qualifies for, listing on the NPL. 

The limitations on EPA’s authority in Section 128(b)(1) are 

subject to a number of statutory exceptions. EPA is not 

prohibited from taking action if the state requests EPA 

assistance; contamination has migrated across state lines or 

onto federal property; after considering response actions 

already taken, a release or threatened release poses an 

imminent and substantial endangerment requiring additional 

response actions; or new information indicates that conditions 

or contamination at the site may present a threat. If EPA 

intends to take an action that may be prohibited under § 

128(b)(1), it must notify the state and wait forty-eight hours for 

a reply, unless one of these exceptions applies, in which case 

EPA must still notify the state but may act immediately. 

Additionally, the new law does not prohibit EPA from seeking 

to recover costs incurred prior to 

40 
date of enactment or during a period during which the 

limitations did not apply. 

EPA has decided not to issue guidance on these new limits on 

EPA authority. Congress provided a fairly detailed statutory 

structure. Also, this provision appears to embody EPA’s 

current practice of generally not getting involved at sites being 

cleaned up under a state program. Some EPA regional 

personnel have communicated with their respective states 

regarding how they anticipate handling the notification 

requirements and state requests for assistance, if necessary. 

41 
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42
Statutory and Regulatory Provisions

RCRA 

Congress enacted the Resource Conservation and Recovery Act 

(RCRA) in 1976 to protect human health and the environment 

from the potential hazards of waste disposal; to conserve 

energy and natural resources; to reduce the amount of waste 

generated; and to ensure that wastes are managed in an environmentally sound manner. RCRA is actually a combination of 

the first federal solid waste statutes with subsequent amendments to address hazardous waste and underground storage 

tanks (USTs). These three distinct yet interrelated programs 

exist as part of RCRA. Subtitle D is the solid waste program 

and its focus is on the management of household garbage and 

non-hazardous industrial solid waste. Subtitle C is the hazardous waste program and its focus is on the management of 

hazardous waste from the time it is generated until its ultimate 

disposal. Subtitle I is the underground storage tank program 

and its mission is to prevent and clean up releases of petroleum 

or hazardous substances from tanks. 

States are an integral part of all three of RCRA’s programs. 

The states oversee most of the Subtitle D solid waste program 

whereby they issue permits and ensure compliance with its 

requirements. “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 acceptable, 

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. However, after authorization, 

both the state and EPA have the authority to enforce those 

requirements.” 

Past and present activities at RCRA facilities have sometimes 

resulted in releases of hazardous wastes into the soil, ground 

43 
water, surface water, and air. 

Subtitle C of RCRA requires 

the investigation and cleanup 

of these hazardous waste 

releases at RCRA facilities. 

This program is known as 

corrective action. The 

facilities that fall under the 

corrective action program 

are generally active ones that 

are permitted or are seeking 

a permit to treat, store, or 

dispose of hazardous waste. 

As a condition of the operating permit, owners/operators 

are required to clean up 

hazardous wastes that are or 

have been released through 

current or past activities. It 

is, therefore, usually the 

current owner and operator 

of a facility that is held responsible for cleaning up 

any contamination. However, 

other parties may be held 

responsible under certain 

conditions. 

RCRACleanup Reforms 

In order to expedite the 

cleanup at hazardous waste 

sites regulated by RCRA, 

EPA launched a set of administrative reforms in 1999 and 

2001, known as the RCRA 

Cleanup Reforms. EPA 

developed the reforms as a 

comprehensive way to address 

the key impediments to 

cleanups, maximize program 

flexibility, and spur progress 

toward a set of ambitious 

national cleanup goals. The 

reforms include methods to 

enhance public access to 

cleanup information and 

improve opportunity for 

public involvement in the 

cleanup process; focus the 

program more effectively on 

achievement of environmental 

results; pilot innovative 

approaches; and capitalize on 

the redevelopment potential of 

RCRA facilities to expedite 

cleanup. (See Appendix B) 

The RCRA Corrective Action enforcement program 

requires owners and operators of RCRA facilities to: 

• conduct investigations 

• conduct a thorough cleanup of the hazardous release 

• monitor the cleanup to make sure it complies with applicable 

state and federal requirements 

44 
Statutory and Regulatory Provisions

Underground Storage Tanks -

Lender Liability Rule 

(40 CFR Parts 280 and 281) 

September 7, 1995 

Subtitle I of RCRA contains a “security interest exemption” 

that provides secured creditors (“lenders”) an explicit statutory 

exemption from corrective action for releases from petroleum 

USTs. Because the statute is unclear about the scope of the 

exemption coverage, EPA issued the UST Lender Liability 

Rule which specifies the conditions under which certain secured lenders may be exempted. 

Both prior to and after foreclosure of a facility, a lender is 

eligible for an exemption from compliance with all Subtitle 

I requirements as an UST “owner” and “operator” if the 

lender: 1) holds an ownership interest in an UST, or in a property in which the UST is located, to protect its security interest 

(a lender typically holds property as collateral as part of the 

loan transaction); 2) does not engage in petroleum production, 

refining, and marketing; and 3) does not participate in the 

management or operation of the UST. A lender also must 

empty its UST(s) within 60 days after foreclosure and either 

temporarily or permanently close the UST(s) unless there 

is a current operator at the site who can comply with UST 

regulations. 

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46
Statutory and Regulatory Provisions

Standards Applicable to Owners

and Operators of Closed and

Closing Hazardous Waste

Management Facilities: PostClosure Permit Requirements and

Closure Process

(40 CFR Parts 264, 265, 270, and 271)

October 22, 1998 

Under Subtitle C of RCRA, an owner/operator is required to 

obtain a permit to operate a hazardous waste treatment, storage, 

or disposal facility (TSDF). RCRA regulations specify the 

requirements that must be met when closing hazardous waste 

land disposal units (“units”). There are two ways to close units 

under RCRA. The units may either be clean closed by removal 

or decontamination of waste or they may be closed by leaving 

waste in place with post-closure care. If the facility operates 

under a permit, the permit should already contain a closure plan 

and include any post-closure requirements. If the facility does 

not have a permit, then a post-closure permit is needed only if 

waste will be left in place. 

This rule, known as the Closure/Post-Closure Rule, amends 

RCRA’s closure and post-closure care requirements by expanding regulatory options available to EPA and authorized state 

programs. These options remove impediments to cleanup at 

hazardous waste facilities in two areas. First, regulators may 

either issue a post-closure permit to a facility or impose the 

47 
same requirements in an enforceable document issued under an 

alternate non-permit authority. Second, EPA and authorized 

states may use corrective action requirements to address these 

units. The corrective action program, as discussed in the rule, 

allows EPA and authorized states to clean up under RCRA, 

CERCLA, or state authority authorized for this rule. 

48 
Statutory and Regulatory Provisions 

Hazardous Waste Identification

Rule for Contaminated Media

(HWIR-Media) Rule

(40 CFR Part 260 et seq)

November 30, 1998 

EPA issued new RCRA 

requirements for hazardous remediation waste that 

is treated, stored, or 

disposed of during 

cleanup actions. This 

rule, known as the HWIRMedia rule, streamlines 

the RCRA permit requirements for cleanup activities through the use of 

remedial action plans 

(RAPs). It also eliminates 

the requirement for 

facility-wide corrective 

action at sites that are only 

required to obtain a permit 

because of the cleanup 

activities and discusses 

the use of a “staging pile” 

for temporary cleanup 

waste storage. 

HWIR Media Rule: 

• Makes permits for treating, 

storing, and disposing of 

hazardous remediation wastes 

faster and easier to obtain; 

• Provides that obtaining these 

permits will not subject the 

owner and/or operator to 

facility-wide corrective action; 

• Creates a new kind of unit 

called a “staging pile” that 

allows more flexibility to 

temporarily store remedia-tion 

waste during cleanup; 

• Excludes dredging materials 

from RCRA Subtitle C 

(hazardous waste management requirements) if they are 

managed under an appropriate 

permit under the Marine 

Protection, Re-search and 

Protection Act or the Clean 

Water Act; and, 

• Makes it faster and easier for 

states to receive author-ization 

when they update 

their RCRA programs to 

incorporate Federal RCRA 

regulation revisions. 

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50
Statutory and Regulatory Provisions 

Corrective Action Management 

Unit (CAMU) CFR Amendments 

Use of CAMUs was authorized in 1993 for the purpose of onsite treatment, storage, and disposal of hazardous wastes 

managed for implementing cleanup. When cleanup wastes are 

managed within a CAMU, they do not trigger certain Resource 

Conservation and Recovery Act requirements that apply to 

wastes generated by industrial processes. This gives the site 

cleanup manager much more flexibility to consider a broader 

range of cleanup options tailored to site- and waste-specific 

conditions, and has led to faster and more aggressive cleanups 

at individual sites. 

The CAMU amendments are intended to provide minimum 

standards for operation of CAMUs. They address concerns of 

some stakeholders that management discretion under the 

original rule might lead to mistakes or abuse. EPA believes the 

amendments protect human health and the environment without undoing the benefits of the CAMU rule, and make the 

corrective action process is more consistent nationally, more 

explicit, and more predictable in its results. 

The final CAMU amendments for the management of remediation wastes were signed by the Administrator on December 21, 

2001. They establish standards governing: (1) the types of 

wastes that may be managed in a CAMU; (2) the design 

standards that apply to CAMUs; (3) the treatment requirements 

for wastes placed in CAMUs; (4) information submission 

requirements for CAMU applications; (5) responses to releases 

from CAMUs; and (6) public participation requirements for 

CAMU decisions. 

51 
In addition, this rule “grandfathers” certain categories of 

CAMUs and creates new requirements for CAMUs used only 

for treatment or storage. States currently authorized for the 

CAMU rule are granted “interim authorization by rule.” Expedited authorization is provided for states authorized for corrective action, but not the CAMU rule. 

In response to comments, the Agency modified staging pile 

rules to allow physical treatment in staging piles, expanding the 

universe of CAMU-eligible wastes to include buried tanks 

containing wastes, and giving Regional Administrators discretion to choose a leaching test other than the Toxicity Characteristic Leaching Procedure (TCLP) to assess treatment. It also 

adds a new provision allowing off-site placement of hazardous 

CAMU-eligible waste in hazardous waste landfills, if they are 

treated to meet modified CAMU treatment standards. States 

that are already authorized for the 1993 CAMU Rule have 60 

days to notify EPA that they intend to use the revised Corrective Action Management Unit Standards rule as guidance. 

52 
EPA Policies and Guidances 

Issuing a policy or guidance document is the strongest 

statement that EPA may make, short of issuing regulations, 

regarding the manner in which EPA will generally approach the 

handling and evaluating of a regulated entity. Although courts 

are not required to consider EPA’s administrative policies or 

guidance documents, they have recognized EPA’s technical 

expertise and have previously given deference to EPA’s administration of the laws over which the Agency has jurisdiction. 

When a site, circumstance, or party fall within the defined 

criteria of an EPA policy or guidance document, individuals 

should find satisfaction in the fact that EPA will act in a manner consistent with that policy. In many cases, EPA’s statement 

of policy not to pursue a particular party will provide adequate 

protection and comfort to an eligible party so that additional 

documentation from EPA is not needed. In other cases, the 

potential for liability may motivate a party either to enter into 

an agreement with EPA that provides protection from 

CERCLA or RCRA actions brought by EPA or other parties, or 

to seek written comfort from EPA. 

The policy and guidance documents summarized in this section 

describe the different options to manage CERCLA and RCRA 

liability risks. Because the documents focus on issues at nonfederally-owned properties, parties interested in property 

currently or formerly owned by the federal government should 

consult the relevant documents listed in Appendix A. 

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54
EPA Policies and Guidances 

Policy Towards Owners of 

Residential Property at 

Superfund Sites 

July 3, 1991 

Owners of residential property located on a CERCLA site have 

raised concerns that they would be responsible for performance 

of a response action or payment of cleanup costs because they 

fell within the definition of “owner” under CERCLA. Additionally, these owners were concerned that they might be 

unable to sell their properties given the uncertainty of EPA 

taking action against them or the new owners. EPA issued its 

policy toward residential property owners to clarify when it 

would not require these owners to perform or pay for cleanup. 

The policy states that EPA, in the exercise of its enforcement 

discretion, will not take an enforcement action against an 

owner of residential property unless his activities lead to a 

release or threat of release of hazardous substances, resulting in 

EPA taking a response action at the property. 

EPA’s policy also applies to lessees of residential property 

whose activities are consistent with the policy. In addition, the 

policy applies to parties who acquire residential property 

through purchase, foreclosure, gift, inheritance, or other form 

of acquisition, as long as those persons’ activities after acquisition are consistent with the policy. 

Other Considerations 

With respect to EPA’s exercise of enforcement discretion under 

this policy, it is irrelevant whether an owner of residential 

property has or had knowledge or reason to believe that contamination was present on the site at the time of purchase or 

sale of the residential property. 

55 
Threshold Criteria 

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 are 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. 

For further information contact: 

(202) 564-5100

Office of Site Remediation Enforcement

56 
EPA Policies and Guidances 

Policy Towards Owners of Property 

Containing Contaminated Aquifers 

July 3, 1995 

The contaminated aquifer policy addresses the CERCLA 

liability of owners of property that contain an aquifer contaminated by a source or sources outside their property. These 

owners were concerned that EPA would hold them responsible 

for cleanup under CERCLA even though they did not cause 

and could not have prevented the groundwater contamination. 

The policy states that EPA, in an exercise of its enforcement 

discretion, will not take an action under CERCLA to require 

cleanup or the payment of cleanup costs provided that the 

landowner did not cause or contribute to the contamination. 

Other Considerations 

If a third party who caused or contributed to the contamination 

sues or threatens to sue the landowner, EPA may consider 

entering into a de minimis landowner settlement with the 

landowner covered under this policy. 

For further information contact: 

Elisabeth Freed - (202) 564-5117

Office of Site Remediation Enforcement

57 
Threshold Criteria 

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. 

58 
EPA Policies and Guidances 

Policy on Interpreting CERCLA 

Provisions Addressing Lenders and 

Involuntary Acquisitions by 

Government Entities 

June 30, 1997 

The lender liability policy clarifies the circumstances in which 

EPA intends to apply, as guidance, the provisions of the 1992 

CERCLA Lender Liability Rule (“Rule”) and its preamble in 

interpreting CERCLA’s lender and involuntary acquisition 

provisions. The Asset Conservation, Lender Liability, and 

Deposit Insurance Protection Act of 1996 amended these 

CERCLA provisions and generally followed the approach of 

the Rule. EPA’s subsequent lender policy explains that when 

interpreting the amended secured creditor exemption, EPA will 

treat the Rule and its preamble as authoritative guidance. For 

example, the amendments do not clarify the steps that a lender 

may take after foreclosure and still remain exempt from owner/ 

operator liability. In making liability determinations, EPA, 

following its policy, will defer to the Rule (see box, page 60). 

The 1996 amendment also validates the portion of the Rule that 

addresses involuntary acquisitions by government entities. 

EPA’s policy clarifies that similar to the preamble of any valid 

regulation, EPA will look to the preamble to the CERCLA 

Lender Liability Rule as authoritative guidance on the meaning 

of the portion of the Rule that addresses involuntary acquisitions. 

For further information contact: 

Bob Kenney - (202) 564-5127

Office of Site Remediation Enforcement

59 
Example 

After foreclosure, a lender who did not “participate in 

management” prior to foreclosure may generally: 

• Maintain business activities; 

• Wind up operations; and 

• Take actions to preserve, protect, or prepare the property for sale 

provided that the lender attempts to sell or re-lease the property 

held pursuant to a sale or lease financing transaction, or otherwise 

divest itself of the property in a reasonably expeditious manner 

using commercially reasonable means. This timeframe will 

generally 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. 

60 
EPA Policies and Guidances 

Policy on the Issuance of EPA 

Comfort/Status Letters 

November 12, 1996 

Some properties may remain unused or underutilized because 

potential property owners, developers, and lenders are unsure 

of the environmental status of these properties. By issuing 

comfort/status letters, EPA helps interested parties better 

understand the likelihood of EPA involvement at a potentially 

contaminated property. Although not intending to become 

involved in typical private real estate transactions, EPA is 

willing to provide a comfort/status letter when appropriate. 

Comfort/status letters are intended to clarify the likelihood of 

EPA involvement at a site; identify whether a party is protected by a statutory provision or discretionary enforcement policy; 

or indicate the progress of a Superfund cleanup. If EPA is not 

involved at the property, the party may be referred to the 

appropriate state agency for further information. 

Comfort letters address a particular set of circumstances and 

provide whatever information is contained within EPA’s databases. Questions typically addressed by comfort letters 

include: 

• Is the site or property listed in CERCLIS? 

• Has the site been archived from CERCLIS? 

• Is the site or property contained within the defined boundaries of a 

CERCLIS site? 

• Has the site or property been addressed by EPA and deleted from the 

defined site boundary? 

• Is the site or property being addressed by a state voluntary cleanup 

program? 

• Is EPA planning or currently performing a response action at the site? 

61 
Evaluation Criteria 

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. 

• There is no other mechanism available to adequately address the 

party’s concerns. 

• Are the conditions at the site or activities of the party addressed by a 

statutory provision or EPA policy? 

• Is the site in CERCLIS but designated as state-lead or deferred to the 

state agency for cleanup? 

The agency generally uses four sample comfort letters to 

respond to requests. The samples can be found in Appendix D. 

A summary of the report on the effectiveness of comfort/status 

letters may be found in Appendix C. 

For further information contact: 

Elisabeth Freed - (202) 564-5117

Office of Site Remediation Enforcement

62 
EPA Policies and Guidances 

Interim Approaches for Regional 

Relations with State Voluntary 

Cleanup Programs 

November 14, 1996 

State and local empowerment to clean up sites is at the center 

of EPA’s Brownfields program. Many states have developed 

voluntary cleanup programs that are designed to achieve protective cleanups at sites that are not on the NPL. 

EPA regional offices have developed partnerships with states 

that have voluntary cleanup programs through the negotiation 

of Memoranda of Agreements (MOAs). Through the MOA, 

EPA and the interested state address state capabilities, programmatic areas, and the types of sites the state will include in 

the MOA. 

With the guidance, EPA intends to facilitate regional/state 

MOA negotiations. The MOA delineates the roles and responsibilities between a state and EPA with respect to sites being 

cleaned up under the state’s voluntary cleanup programs. This 

interim guidance sets out six baseline criteria that are evaluated 

before a region enters into an MOA with a state for its voluntary cleanup program. Through the completed and signed 

MOA, EPA acknowledges the adequacy of the state voluntary 

cleanup program. EPA also agrees that for sites addressed 

under the MOA, it does not plan or anticipate taking a removal 

or remedial action, unless EPA determines that there may be an 

imminent and substantial danger to public health or welfare or 

the environment. 

Similar to CERCLA MOAs, EPA is developing Memoranda of 

Understanding (MOUs) between interested states and EPA 

63 
regional offices when states 

use an appropriate non-RCRA 

authorized state authority to 

oversee the cleanup of specific 

RCRA facilities. Where 

considered mutually beneficial, a regional office, working 

with Headquarters, may enter 

into a MOU to solidify expectations and worksharing 

arrangements between the 

region and state. 

For further information contact: 

Matt Sander - (202) 564-7233

Office of Site Remediation Enforcement

Jennifer Wilbur - (202) 566-0797

Outreach and Special Project Staff

Program Evaluation Criteria 

EPA may enter into a MOA that addresses a state voluntary 

cleanup program if all of the following baseline criteria are 

met: 

• Opportunities for meaningful community involvement. 

• Voluntary response actions are protective of human health and the 

environment. 

• Adequate resources to ensure that voluntary response actions are 

conducted in an appropriate and timely manner, and that both 

technical assistance and streamlined procedures, where appropriate, 

are available from the state agency responsible for the voluntary 

cleanup program. 

• Mechanisms for the written approval of response action plans and a 

certification or similar documentation indicating that the response 

actions are complete. 

• Adequate oversight to ensure that voluntary response actions are 

conducted in such a manner to assure protection of human health 

and the environment, as described above. 

• Capability, through enforcement or other authorities, of ensuring 

completion of response actions if the volunteering party(ies) 

conducting the response action fail(s) or refuse(s) to complete the 

necessary response action, including operation and maintenance or 

long-term monitoring activities, if appropriate. 

64 
EPA Policies and Guidances 

Revised Settlement Policy and 

Contribution Waiver Language 

Regarding Exempt De Micromis and 

Non-Exempt De Micromis Parties 

November 6, 2002 

EPA provides enhanced protection for a subset of de minimis 

waste contributors referred to as non-exempt de micromis 

waste contributors. Non-exempt de micromis settlements may 

be available to parties who generated or transported a minuscule amount of waste to a Superfund site, which is an amount 

less than the minimal amount normally contributed by 

de minimis parties. EPA’s revised guidance defines eligible 

non-exempt de micromis parties as those parties who fall 

outside the statutory definition of a qualified exempt de 

micromis (see Section 107(o)), but who may be deserving of 

similar treatment based on case-specific factors. The presumptive cut-off for a non-exempt de micromis party is 110 gallons 

(e.g., two 55 gallon drums) or 200 pounds of material containing hazardous substances. Regions have the flexibility to 

consider higher amounts on a site-specific basis. 

As a matter of policy, EPA does not pursue non-exempt 

de micromis waste contributors for the costs of cleaning up a 

site. If, however, a non-exempt de micromis party is threatened 

with litigation by other parties at the site for the costs of 

cleanup, EPA may enter into a zero dollar settlement with the 

non-exempt de micromis party. Non-exempt de micromis 

settlements provide both a covenant not to sue from the Agency 

and contribution protection against other parties at the site. 

65 
Refer to http://cfub.sdc-moses.com/compliance/policies/ 

cleanup/superfund/index.cfm for more information. 

For further information contact: 

Victoria Van Roden - (202) 564-4268

Office of Site Remediation Enforcement

66
EPA Policies and Guidances 

Guidance on Enforcement 

Approaches for Expediting RCRA 

Corrective Action 

Expediting corrective action cleanup activities at facilities that 

treat, store, or dispose hazardous waste is essential to protecting human health and the environment and potentially making 

these properties available for other uses. EPA Regions and 

States authorized to implement the corrective action program in 

lieu of EPA have developed innovative approaches to achieve 

timely, protective, and efficient cleanups. This guidance 

describes a number of enforcement approaches to expedite 

corrective action (see box on page 68). It provides examples of 

approaches designed to reduce the amount of process and 

procedures such as creative use of schedules and other federal 

statutory cleanup authorities. It also provides specific examples of tools such as facility-initiated agreements that are 

more flexible than typical corrective action enforcement orders. 

For further information contact: 

Karin Koslow - (202) 564-0771 

67 
Expediting Components of Corrective Action 

Creative Schedules and Deadlines - include time limits to 

negotiate work plans, consent orders, and permits; fixed and 

flexible schedules of compliance; and limiting work product revisions. 

Alternatives to a Collaborative Approach - encourage a 

more cooperative response from the facility owner/operator 

by presenting a less collaborative alternative such as a judicial action or a unilateral administrative order (UAO). 

Penalty Provisions - include penalty provisions in enforcement documents, and collection of penalties when the facility fails to comply with the permit or order. 

Other Federal Statutory Authorities - use other federal 

authorities such as CERCLA §106(a). 

Innovative Mechanisms to Require Corrective Action 

Facility-Initiated Agreement 

A facility-initiated agreement is a non-binding corrective 

action agreement between EPA and a facility owner/operator. The purpose of the agreement is to allow a motivated 

owner/operator to initiate and perform corrective action in a 

manner that is consistent with all relevant laws and regulations and avoid negotiating an enforceable order. 

Streamlined Consent Order 

A streamlined consent order is a pared-down, results-based 

order. It contains enforceable deadlines and stipulated penalties and lacks the traditional specificity as to how the owner/ 

operator should accomplish corrective action activities. Instead, it identifies performance standards that must be met 

by specific dates. With this type of order, EPA’s oversight role is minimized throughout the corrective action process. 

68 
Innovative Mechanisms to Require Corrective Action 

Unilateral Letter Order 

The unilateral letter order is a legally binding, results-based 

order that can be entered into under any RCRA statutory 

administrative order authority. It is similar to a letter in that 

it is written in a less formal format and style than a traditional order. 

69 
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70
EPA Policies and Guidances 

Coordination Between RCRA 

Corrective Action and Closure and 

CERCLA Site Activities 

September 24, 1996 

The goal of this memorandum is to continue to coordinate the 

CERCLA and RCRA cleanup programs in order to eliminate 

duplication of effort, streamline cleanup processes, and build 

effective relationships with states and tribes. Three areas are 

discussed in the memorandum to accomplish this goal: acceptance of decisions made by other remedial programs; deferral 

of activities and coordination among RCRA, CERCLA and 

state/tribal cleanup programs; and coordination of the specific 

standards and administrative requirements for closure of regulated units with other cleanup activities. Topics that are discussed in greater detail in the memorandum include program 

deferral and coordination between programs with examples of 

current approaches that are in use. 

For further information contact: 

Office of Site Remediation Enforcement 

(202) 564-5100 

71 
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72
EPA Policies and Guidances 

Comfort/Status Letters for RCRA 

Brownfield Properties 

February 14, 2001 

On November 8, 1996, the Office of Enforcement and Compliance Assurance (OECA) issued its “Policy on the Issuance of 

Comfort/Status Letters,” which focuses on properties primarily 

associated with Superfund sites. Since that time, regional staff 

and private parties have inquired about the applicability of 

that policy to property within or adjacent to facilities subject 

to RCRA. 

While EPA has not yet issued a formal policy on the use of 

RCRA comfort/status letters, there may be sites subject to 

RCRA requirements where the circumstances are analogous to 

the circumstances at Superfund sites. Site-specific circumstances determine whether a comfort/status letter is appropriate, but generally comfort/status letters may be appropriate at 

brownfields associated with RCRA treatment, storage, and 

disposal facilities; “generator-only” sites; or other property 

where RCRA hazardous waste is discovered during cleanup 

and/or redevelopment activities. This memorandum encourages regional staff to use “comfort/status” letters at such 

RCRA facilities, where appropriate, and provides some examples of regional RCRA comfort/status letters. In the RCRA 

context, comfort/status letters relate only to EPA’s intent to 

exercise its RCRA corrective action response and enforcement 

authorities. As with the Superfund policy, the “comfort” comes 

from knowing what EPA knows about the property and what 

EPA’s intentions are in terms of a response action. Regional 

73 
staff should look to the Superfund comfort/status letter policy 

for general guidelines on the issuance of RCRA comfort/ 

status letters. 

For further information contact: 

Elisabeth Freed- (202) 564-5117

Office of Site Remediation Enforcement

74
APPENDIX A

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76
Related Policies and Guidance 

In addition to issuing policy and guidance documents that 

provide tools to manage CERCLA and RCRA liability risks, 

EPA has issued various policy and guidance documents that 

promote faster investigation, cleanup, and redevelopment of 

sites. Summarized below is just a small sampling of the many 

policy and guidance documents that may be helpful to parties 

interested in managing CERCLA and RCRA liability risks at 

brownfields and other sites. 

Copies of the policy and guidance documents can be obtained 

from the Superfund and RCRA Hotline (800) 424-9346 or on 

EPA’s web pages. 

Office of Site Remediation 

Enforcement 

www.epa.gov/compliance/ 

about/offices/osre.html 

Brownfields 

www.epa.gov/brownfields 

Office of Solid Waste 

www.epa.gov/osw 

Superfund 

www.epa.gov/superfund 

77 
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78
Related Policies and Guidances 

CERCLA 

CERCLA Orientation Manual 

October 1992 

The CERCLA Orientation Manual serves as a program orientation guide and reference document to the Comprehensive 

Environmental Response, Compensation, and Liability Act. 

The purpose of the manual is to assist EPA and state personnel 

involved with hazardous waste remediation, emergency response, and chemical and emergency preparedness. The organizational and operational components of the Superfund program 

also are described. 

To order a hard copy: 

National Center for Environmental Publications and Information

P.O. Box 42419

Cincinnati, OH 45242-2419

(513) 489-8190

Document number: EPA542-R-92-005

National Contingency Plan (40 CFR Part 300) 

The National Oil and Hazardous Substances Pollution Contingency Plan, more commonly called the National Contingency 

Plan (NCP), establishes a comprehensive process by which the 

federal government responds to both oil spills and hazardous 

substances. The NCP coordinates response efforts such as 

accident reporting, spill containment, cleanup, and personnel 

contacts. 

To access on line: 

www.epa.gov/oilspill/ncpover.htm 

79 
This Is Superfund - A Citizen’s Guide to EPA’s 

Superfund Program 

“This is Superfund” introduces basic issues regarding the 

Superfund program. Topics addressed include how Superfund 

sites are discovered and who pays for and is involved in cleanups. Key terms for understanding the Superfund program, such 

as potentially responsible party and National Priorities List are 

defined. 

To order a hard copy: 

National Center for Environmental Publications and Information

P.O. Box 42419

Cincinnati, OH 45242-2419

(513) 489-8190

Document number: EPA540-K-99-006

To access on line: 

www.epa.gov/superfund/whatissf/sfguide.htm 

Community Reinvestment Act (CRA) 

In 1997 Congress enacted the Community Reinvestment Act 

requiring lenders to make capital available in low- and moderate-income urban neighborhoods, thereby giving rise to concerns over potential environmental and financial liability for 

cleanups at sites by lenders, developers, and property owners. 

The Community Reinvestment Act establishes creative initiatives for economic development while easing fears of financial 

liability and regulatory burdens. 

For further information contact: 

Outreach and Special Projects Staff 

(202) 260-4039 

To access on line: 

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

80 
Related Policies and Guidances 

Partial Deletion of Sites Listed on the NPL 

November 1, 1995

EPA deletes sites from the NPL with state concurrence when

no further cleanup response is warranted under CERCLA.

Historically, only entire sites could be deleted from the NPL.

Under this policy, parties may submit petitions for partial

deletions to EPA. Additionally, the policy gives EPA regional

offices the flexibility to clarify which areas of NPL sites are

considered uncontaminated due to the completion of proper

investigation or cleanup actions.

Before a portion of a site can be considered for partial deletion

from the NPL, it must meet the same deletion criteria that an

entire site must meet. (See 40 CFR § 300.425).

For further information contact: 

Office of Emergency and Remedial Response 

(703) 603-8960 

To access on line: 

www.epa.gov/swerffrr/documents/fr110195.htm 

Guidance on Deferral of NPL Listing Determinations While States Oversee Response Actions 

May 3, 1995 

The deferral guidance provides a framework for regional 

offices, states, and tribes to determine the most appropriate, 

effective, and efficient means to respond to hazardous waste 

sites. Implementation is flexible in order to account for the 

different capabilities of these acting parties. 

For further information contact: 

Office of Emergency and Remedial Response 

(703) 603-8960 

To access on line: 

www.epa.gov/swerosps/bf/html-doc/deferral.htm 

81 
The NPL for Uncontrolled Hazardous Waste 

Sites; Listing and Deletion Policy for Federal 

Facilities 

November 24, 1997 

This document establishes an interim final revision to the 

Agency’s policy on placing federal facility sites on the National 

Priorities List. The interim final policy revisions also apply to 

federal facility sites that are RCRA-regulated facilities engaged 

in treatment, storage, or disposal of hazardous waste. 

For further information contact: 

Federal Facilities Restoration and Reuse Office 

(202) 260-9924 

To access on line: 

www.epa.gov/fedrgstr/EPA-WASTE/1997/November/Day-24/f30518.htm 

Policy Towards Landowners and Transferees of 

Federal Facilities 

June 13, 1997 

This policy was created to address the potential liability concerns of non-federal parties who acquire federal facility property. Such acquisitions have become increasingly common 

with the reduction in size and number of federal facilities such 

as military bases. The intent of this policy is to alleviate 

uncertainty regarding potential enforcement action by EPA 

against landowners and transferees (i.e., lessees) of federal 

facility properties. 

For further information contact: 

Federal Facilities Restoration and Reuse Office 

(202) 260-9924 

To order a hard copy: 

Superfund Docket Center at (703) 603-9232

the Superfund Hotline at (800) 424-9346,

or the National Technical Information Service (NTIS) at (800) 533-NTIS.

82 
Related Policies and Guidances 

EPA Guidance on the Transfer of Federal 

Property by Deed Before All Necessary 

Remedial Action Has Been Taken Pursuant to 

CERCLA Section 120(h)(3). 

June 16, 1998 

This guidance, referred to as the “Early Transfer Guidance,” 

describes EPA’s process in determining a federally-owned 

property’s suitability for transfer to a private party prior to the 

completion of all necessary cleanup action Concurrence of a 

state’s governor is required. 

For further information contact: 

Federal Facilities Restoration and Reuse Office 

(202) 260-9924 

To access on line: 

www.epa.gov/swerffrr/documents/hkfin.htm 

Road Map to Understanding Innovative 

Technology Options for Brownfields 

Investigation and Cleanup 

June 1997 

The Road Map identifies potential technology options available 

at each of the basic phases involved in the characterization and 

cleanup of brownfields sites: site assessment, site investigation, 

cleanup options, and cleanup design and implementation. The 

Road Map is not a guidance document. Rather, each section 

describes the steps involved in the characterization and cleanup 

of brownfields sites and connects those steps with available 

technology options and supporting technology information 

resources. Appendices in the Road Map include a list of 

common contaminants found at typical brownfields sites, a 

detailed guide to common environmental terms and acronyms, 

and a list of state and EPA brownfields contacts. 

83 
For further information contact: 

Technology Innovation Office 

(703) 603-9910 

To order a hard copy: 

National Center for Environmental Publications and Information

P.O. Box 42419

Cincinnati, OH 45242-2419

Telephone: (513) 489-8190

Document number: EPA 542-B-97-002

To access on line: 

Second edition available at www.clu-in.org/roadmap/ 

Tool Kit of Information Resources for 

Brownfields Investigation and Cleanup 

June 1997 

The Tool Kit provides abstracts and access information for a 

variety of relevant resources, including electronic databases and 

bulletin boards, newsletters, regulatory and policy guidance, 

and technical reports. The Tool Kit describes the resources 

identified in the Road Map, explains how to obtain the publications, and provides a “starter kit” of important information 

resources to help brownfield stakeholders understand available 

technology. 

For further information contact: 

Technology Innovation Office 

(703) 603-9910 

To order a hard copy: 

National Center for Environmental Publications and Information

P.O. Box 42419

Cincinnati, OH 45242-2419

Telephone: (513) 489-8190

Document number: EPA 542-B-97-001

To access on line: 

Second edition available at www.clu-in.org/roadmap/ 

Soil Screening Guidance: Fact Sheet

84 
Related Policies and Guidances 

May 17, 1996 

EPA’s Soil Screening Guidance helps standardize and accelerate the evaluation and cleanup of contaminated soils at NPL 

sites where future residential land use is anticipated. To help 

identify areas at sites on the NPL that need further investigation 

or that may be screened out from further consideration, the 

guidance provides a step-by-step methodology for determining 

levels of soil contamination. The Soil Screening Guidance can 

help speed up the investigation and cleanup of contaminated 

sites, save time and money and make sites available for redevelopment more quickly. 

Documents related to the guidance include the Soil Screening 

Guidance User’s Guide, Fact Sheet, and Technical Background 

Document. 

For further information contact: 

Office of Emergency and Remedial Response 

(703) 603-8960 

To access on line: 

http://www.epa.gov/superfund/resources/soil/fact_sht.pdf 

Land Use in the CERCLA Remedy Selection 

Process Description 

May 1995 

EPA’s land use directive promotes early discussions with local 

land use planning authorities, local officials, and the public 

regarding reasonably anticipated future uses of the property on 

which a NPL site is located. The directive also encourages the 

use of realistic assumptions regarding future land use in the 

baseline risk assessment the development of remedial alternatives, and the CERCLA remedy selection process. 

85 
For further information: 

Office of Emergency and Remedial Response 

(703) 603-8960 

To access on line: 

www.epa.gov/swerosps/bf/pdf/land_use.pdf 

Overview of Presumptive Remedies 

Presumptive remedies are technologies or strategies that are 

preferred for use at sites with specific common characteristics. 

They have been developed to take advantage of Superfund’s 

extensive experience in remediating complex hazardous waste 

sites. This experience has shown that certain remedies are 

generally appropriate for sites with specific common characteristics, e.g., type of contaminant present, type of previous 

industrial use, and environmental medium affected. Relying on 

presumptive remedies can streamline the site assessment, 

remedy selection, and RD/RA processes. EPA has developed 

presumptive remedy guidance for five types of site: 

• Municipal landfills 

• Volatile organic compounds (“VOCs”) in soils 

• Metals in soils 

• Wood treatment 

• Contaminated ground water 

EPA has been using presumptive remedies since 1993. As of 

October 1997, presumptive remedies had been used or were 

being used at 48 Superfund sites accounting for more than 80 

operable units. Using presumptive remedies has a number of 

advantages: 

• Saving time and money. EPA estimates that municipal landfills 

implementing the presumptive remedy of containment, for example, 

86 
Related Policies and Guidances 

experience time savings ranging from 36 to 56 percent, and cost 

savings of up to 60 percent from streamlining the remedial 

investigation/feasibility study process. 

• Promoting consistency in remedy selection. Using similar 

remedies at similar types of sites saves time and allows cross-site 

comparisons, which help to refine remedy implementation. 

• Improving predictability in remedy selection. When a 

presumptive remedy is proposed, interested parties can review previous 

actions at similar sites. This may increase their confidence in the 

proposed remedy and speed up remedy selection. 

• Workload reduction. Implementation of presumptive remedies 

has been tried and tested, accelerating the process of screening and 

selecting remedies. Thus savings in time and money often may be 

achieved at the same time workloads are reduced. 

• Expert support. RPMs can access presumptive remedy experts 

who can provide information and support during remedy 

implementation. 

• NCP compliance. Use of presumptive remedies advances NCP 

remedy selection objectives by promoting consistency in remedy 

screening and selection. 

Relying on presumptive remedies is EPA policy. EPA guidance 

states that presumptive remedies are to be used at all appropri87 
ate sites, except under unusual, site-specific circumstances. 

This means that RPMs working at the types of sites listed 

above should always investigate the possibility of implementing a presumptive remedy. 

For more information contact: 

Office of Emergency and Remedial Response 

(703) 603-8960 

To access on line: 

http://www.epa.gov/superfund/resources/presump 

Methodology for Early De Minimis Waste 

Contributor Settlements under CERCLA 

Section 122(g)(1)(A) 

June 2, 1992 

Under CERCLA section 122(g)(1)(A), EPA is authorized to 

enter into settlements with minor waste contributors de minimis 

parties of a site when practicable and in the public interest. 

This policy provides guidance for early consideration and 

proposals of such de minimis settlements, including the methodology to facilitate settlement, and procedures for identifying 

early de minimis candidates. 

For further information contact: 

Office of Site Remediation Enforcement 

(202) 564-5100 

To access on line: 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/demin-sec122-

rpt.pdf 

Policy for Municipality and Municipal Solid 

88 
Related Policies and Guidances 

Waste CERCLA Settlements at NPL CoDisposal Sites 

February 5, 1998 

This policy supplements the Interim Policy on CERCLA 

Settlements Involving Municipalities and Municipal Waste 

issued September 30, 1989. Under this policy, EPA continues 

the practice of generally not identifying generators and transporters of municipal solid waste as potentially responsible 

parties at NPL sites. The policy identifies a settlement methodology for making settlements to MSW generators and transporters seeking to resolve liability. It also identifies a presumptive settlement range for municipal owners and operators 

of co-disposal sites on the NPL seeking to settle their 

Superfund liability. 

For further information conmtact: 

Office of Site Remediation Enforcement 

(202) 564-5100 

To access on line: 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/munic-solwstmem.pdf 

General Policy on Superfund Ability to Pay 

Determinations 

September 30, 1997 

The Superfund ability to pay (ATP) policy document explains 

what is necessary for an acceptable ability to pay settlement in 

Superfund cases. The main text of the policy document addresses general issues that apply to the ATP process and ATP 

settlements. The policy document also contains two appendices that address issues specific to making ATP determinations 

for individuals and businesses. 

The policy document establishes an “undue financial hardship” 

89 
standard for determining a party’s ability to pay its share of 

Superfund clean up costs and uses a two-part analysis to 

determine what is an acceptable ATP settlement amount. 

This policy is intended to apply outside of a formal bankruptcy 

context because the bankruptcy laws provide other mechanism 

to protect debtors from undue financial hardship or to allow 

viable business to reorganize. 

For further information contact: 

Office of Site Remediation Enforcement 

(202) 564-5100 

To access on line: 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/genpol-atprpt.pdf 

Fact Sheet: Revised De Micromis Guidance 

June 4, 1996 

This fact sheet describes EPA’s efforts in reducing transaction 

costs for very small volume contributors (de micromis parties). 

It outlines cut-off ranges considered in assessing a party’s 

waste contribution and also discusses additional reference 

documents that may be of interest to de micromis parties. 

For further information contact: 

Office of Site Remediation Enforcement 

(202) 564-5100 

To access on line: 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/fsdemicromis-rpt.pdf 

Streamlined Approach for Settlements With De 

90 
Related Policies and Guidances 

Minimis Waste Contributors under CERCLA Section 

122(g)(1)(A) 

July 30, 1993 

This guidance encourages EPA regional offices to take a more 

active role in facilitating de minimis settlements by establishing minimum levels of information necessary before considering a de minimis settlement, and providing a methodology 

for payment. 

For further information contact: 

Office of Site Remediation Enforcement 

(202) 564-510 

To access on line: 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/appdeminimis-rpt.pdf 

Advance Notice of Proposed Rulemaking: 

Corrective Action for Releases from Solid 

Waste Management Units at Hazardous 

Waste Management Facilities 

May 1, 1996 

The action proposed in this Notice (ANPR) was a key step in 

EPA’s effort to improve the RCRA corrective action program. 

The ANPR introduced EPA’s strategy to develop corrective 

action issues; provided a status report on the successes of the 

program; and emphasized areas of flexibility within current 

corrective action implementation. The ANPR encourages and 

describes tools that create a consistent holistic approach to 

clean up at RCRA facilities; establishes protective, practical 

clean up expectations; shifts more of the responsibilities to 

achieve clean up on those responsible for the contamination; 

streamlines corrective action and reduces cost; and enhances 

opportunities for timely, meaningful public participation. In 

addition, the ANPR serves as the primary guidance document 

91 
for the RCRA corrective action program. 

For further information contact: 

Office of Solid Waste

(703) 308-8404

Office of Site Remediation Enforcement

(202) 564-5100

To access on line: 

http://www.epa.gov/epaoswer/hazwaste/ca/resource/guidance/gen_ca/anpr.htm 

RCRA Expanded Public Participation Rule 

60 FR 63417 

December 1995 

EPA developed the RCRA Expanded Public Participation Rule 

to empower communities to become more actively involved in 

local hazardous waste management. This rule makes it easier 

for citizens to become involved earlier and more often in the 

process of permitting hazardous waste facilities. It also expands 

public access to information about facilities. As a result, the 

rule enables communities to become more active participants in 

important local environmental decisions. 

The RCRA Expanded Public Participation Rule also helps 

facilities. Earlier participation can eliminate confusion or 

delays in the permitting process that can occur when the public 

is not involved until much later. This helps ensure that the 

permitting process moves forward in a timely manner. By 

fostering better relationships with communities, the rule also 

can help improve facilities’ images and reduce potential conflict. In addition, citizens are often able to provide valuable 

information regarding local conditions for facilities to consider 

in developing their permit applications. Furthermore, the rule is 

very flexible--it identifies the basic requirements needed to 

satisfy EPA's public participation goals and recommends 

92 
Related Policies and Guidances 

additional activities that facilities might conduct. 

For further information contact: 

Office of Solid Waste 

(703) 308-8404 

To access on line: 

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

Corrective Action Oversight 

February 7, 1992 

Oversight in general is the management of all activities related 

to corrective action at a site. The oversight approach discussed 

in this guidance encourages project managers and owners/ 

operators to develop a plan that allows for the appropriate level 

of oversight rather than a pre-determined “one size fits all” 

process. The guidance emphasizes that the project manager 

should base the oversight plan on facility-specific conditions 

and owner/operator capabilities and develop an appropriate 

level of oversight that will ensure timely, efficient, and protective cleanups. 

For further information contact: 

Office of Site Remediation Enforcement 

(202) 564-5100 

To access on line: 

http://www.epa.gov/Compliance/about/offices/osre.html 

The RCRA Public Participation Manual 

EPA designed this document as a "user's manual." It 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 

93 
tools and activities. The 1996 RCRA Public Participation 

Manual supersedes the 1993 RCRA Public Involvement 

Manual. 

For further information contact: 

Office of Solid Waste 

(703) 308-8404 

To access on line: 

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

The Handbook of Groundwater Protection 

and Cleanup Policies for RCRA Corrective 

Action 

The Handbook of Groundwater Protection contains the Environmental Protection Agency’s (EPA’s) latest interpretation of 

policies on such topics as cleanup goals, the role of groundwater use, point of compliance, source control, and monitored 

natural attenuation. This Handbook ties 15 different topics 

together with an overall Groundwater Protection and Cleanup 

Strategy that emphasizes a phased, results-based approach to 

cleaning up contaminated groudwater. 

For further information contact: 

Office of Solid Waste 

(703) 308-8404 

To access online: 

http://www.epa.gov/correctiveaction/resource/guidance/gw/gwhandbk/gwhbfinl.pdf 

94 
APPENDIX B 

95
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96
Fact Sheets 

Eligibility for Brownfields Funding

September 2002, 

Introduction 

President George W. Bush 

signed, the Small Business 

Liability Relief and 

Brownfields Revitalization 

Act into law on January 11, 

2002. The Brownfields Law 

expands potential federal 

financial assistance for 

brownfield revitalization, 

including grants for 

assessment, cleanup, and job 

training. The new law also 

limits the liability of certain 

contiguous property owners 

and prospective purchasers 

of brownfield properties, and 

clarifies innocent landowner 

defenses to encourage 

revitalization and reuse of 

brownfield sites. The 

Brownfields Law also includes 

provisions to establish and 

enhance state and tribal 

response programs, which will 

continue to play a critical role in 

the successful cleanup and 

revitalization of brownfields. 

This summary highlights the 

eligibility requirements of the 

new law. 

Type of Grant Eligible Entities 

Brownfields assessment “Eligible entities” as defined in the 

grants new Brownfields Law 

Brownfields revolving loan “Eligible entities” as defined in the 

fund grants new Brownfields Law 

and Nonprofit Organizations 

Brownfields direct cleanup (note: EPA will use the 

grants definition of nonprofit organizations 

contained in Section 4(6) of the 

To be used only for the Federal Financial Assistance 

remediation of properties Management Improvement Act of 

owned by the eligible party 1999, Public Law 106-107) 

97 
Eligible Entities and 

Properties under the New 

Law 

There are two aspects to 

brownfields funding 

eligibility: 

1) Eligible Entities 

(who can receive a 

brownfields grant) 

2) Eligible Properties 

(which properties are 

eligible for funding). 

Parties eligible for brownfields 

grants include: 

The new Brownfields Law 

defines “Eligible Entities” 

• General purpose unit 

of local government 

(note: for purposes of 

the brownfields grant 

program, EPA defines 

general purpose unit of 

local government as a 

“local government” as 

that term is defined 

under 40 CFR Part 31) 

• Land clearance 

authority or other 

quasi-governmental 

entity that operates 

under the supervision 

and control of or as an 

agent of a general 

purpose unit of 

localgovernment 

• Government entity 

created by a state 

legislature 

• Regional council or 

group of general 

purpose units of local 

government 

• Redevelopment 

agency that is 

chartered or otherwise 

sanctioned by a state 

• StateIndian tribe other 

than in Alaska (note: 

intertribal Consortia 

are eligible for 

funding in accordance 

with EPA’s policy for 

funding intertribal 

consortia) 

• Alaska native 

Regional Corporation 

and an Alaska Native 

Village Corporation 

and the Metlakatla 

Indian community 

Under the new 

Brownfields Law, Eligible 

Properties include: 

• Properties that meet 

the definition of a 

Brownfield Site under 

the new Brownfields 

Law 

98 
Fact Sheets 

• Properties for which 

EPA has made a 

property-specific 

funding determination, 

based upon the criteria 

provided in the new 

Brownfields Law. 

The new Brownfields Law 

defines a “Brownfield Site” 

to mean: “...real property, the 

expansion, redevelopment, or 

reuse of which may be 

complicated by the presence or 

potential presence of a 

hazardous substance, pollutant, 

or contaminant.” Brownfield 

sites include residential, as well 

as commercial and industrial 

properties. 

Property-Specific 

Determinations of 

Eligibility 

Property-Specific 

Determinations: The 

Brownfields Law excludes 

certain types of property from 

funding eligibility, unless EPA 

makes a property-specific 

funding determination: 

• Facilities subject to 

planned or ongoing 

CERCLA removal 

actions. 

• Facilities that are 

subject to unilateral 

administrative orders, 

court orders, 

administrative orders 

on consent or judicial 

consent decree or to 

which a permit has 

been issued by the 

United States or an 

authorized state under 

the Solid Waste 

Disposal Act (as 

amended by the 

Resource Conservation 

and Recovery Act 

(RCRA)), the Federal 

Water Pollution 

Control Act (FWPCA), 

the Toxic Substances 

Control Act (TSCA), 

or the Safe Drinking 

Water Act (SDWA). 

• Facilities subject to 

corrective action orders 

under RCRA (sections 

3004(u) or 3008(h)) 

and to which a 

corrective action 

permit or order has 

been issued or 

modified to require the 

implementation of 

corrective measures. 

99 
• Land disposal units 

that have filed a 

closure notification 

under subtitle C of 

RCRA and to which 

closure requirements 

have been specified in 

a closure plan or 

permit. 

• Facilities where there 

has been a release of 

polychlorinated 

biphenyls (PCBs) and 

are subject to 

remediation under 

TSCA. 

• Portions of facilities 

for which funding for 

remediation has been 

obtained from the 

Leaking Underground 

Storage Tank (LUST) 

Trust Fund. 

Criteria for Property 

Specific Funding 

Determinations: 

The new legislation allows 

EPA to award financial 

assistance to an 

eligible entity for 

assessment or clean up 

activities at the site, if 

it is found that 

financial assistance 

will: 

1. Protect human health 

and the environment, 

and 

2. Either: 

promote economic 

development; or 

enable the creation of, 

preservation of, or 

addition to parks, 

green ways, 

undeveloped property, 

other recreational 

property, or other 

property used for 

nonprofit purposes. 

• Facilities subject to 

unilateral 

administrative orders, 

court orders, 

administrative orders 

on consent or judicial 

consent decree issued 

to or entered into by 

parties under 

CERCLA. 

• Facilities that are 

subject to the 

jurisdiction, custody or 

control of the United 

States government. 

100 
Facilities not Eligible for 

Brownfields Funding: 

• Facilities listed (or 

proposed for listing) on 

the National Priorities 

List (NPL). 

101 
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102
Fact Sheets 

Summary of Brownfields Grants

Guidelines 

September 2002 

President George W. Bush 

signed, the Small Business 

Liability Relief and Brownfields 

Revitalization Act into law. on 

January 11, 2002. The 

Brownfields Law expands 

potential federal financial 

assistance for brownfield 

revitalization, including grants 

for assessment, cleanup, and job 

training. The new law also 

limits the liability of certain 

contiguous property owners and 

prospective purchasers of 

brownfield properties, and 

clarifies innocent landowner 

defenses to encourage 

revitalization and reuse of 

brownfield sites. The 

Brownfields Law also includes 

provisions to establish and 

enhance state and tribal 

response programs, which will 

continue to play a critical role in 

the successful cleanup and 

revitalization of brownfields. 

This summary highlights the 

new grant guidelines and select 

provisions of the new law 

relevant to applicants. 

Fiscal Year 2003 Grant 

Guideline Highlights 

The FY03 Brownfields 

Grant Guideline is a 

document that provides 

applicants with 

information on 

requirements for 

applying for three types 

of Brownfields grants: 

assessment grants, 

revolving loan fund 

(RLF) grants, and, new 

in FY03, direct cleanup 

grants. These grants are 

authorized under Subtitle A 

of the new Brownfields law 

to promote the cleanup and 

redevelopment of 

brownfields by providing 

financial assistance for 

revitalization efforts. Job 

training grant guidelines and 

Grant Funding Guidance for 

State and Tribal Response 

programs under Subtitle C of 

the Brownfields law are 

being published separately. 

103 
The FY03 Brownfields 

grant guidelines reflect a 

new approach. The 

proposal process has also been 

streamlined to allow 

applicants to prepare an initial 

proposal for funding under 

three different types of grants: 

assessment, RLF anddirect 

cleanup. EPA will review the 

applicants’ Initial Proposals, 

and, after ranking, will invite a 

subset of these applicants to 

submit to EPA their final 

proposals. 

Eligible Entities 

A wide range of 

governmental entities are 

eligible for assessment, 

RLF and direct cleanup 

grants. Eligible 

governmental entities include 

states, tribes, local 

governments, councils of 

government, and state 

chartered redevelopment 

agencies. 

In addition, the new 

Brownfields law provides 

two new ways in which 

non profit organizations 

may receive funding to 

clean up sites that they own. 

Non profit organizations may 

apply directly to EPA for 

cleanup grants for sites that 

they own, In addition, 

governmental RLF grant 

recipients may use their 

funding to award cleanup 

subgrants to other eligible 

entities, which now includes 

certain non profit 

organizations. Cleanup grants 

and RLF subgrants, unlike 

RLF loans, do not need to be 

repaid. 

Grant Funding Amounts 

Eligible governmental 

entities may apply for up 

$400,000 in assessment 

funding–up to $200,000 

of which has to be used 

to address sites 

contaminated by 

hazardous substances, 

pollutants or 

contaminants, and up to 

$200,000 of which has to 

be used to address sites 

contaminated by 

petroleum. Applicants may 

request a waiver of the 

$200,000 site limits up to a 

$350,000 site limit, based on 

the anticipated level of 

104 
Fact Sheets 

contamination, size, or 

status of ownership. Due to 

budget limitations, no entity 

may apply for funding 

assessment activities in 

excess of $700,000. 

Eligible governmental 

entities may apply for 

up to $1 million for an 

initial RLF grant. 

Coalitions–groups of 

eligible entities–may 

apply together under 

one grant recipient for 

up to $1 million per 

eligible entity. Revolving 

loan funds generally are 

used to provide no-interest 

or lower-interest loans for 

brownfields cleanups. The 

new Brownfields law 

requires the applicant to 

contribute a 20 percent cost 

sharing for RLF awards; 

this cost share may be in the 

form of money or, labor, 

material or services that 

would be eligible and 

allowable costs under the 

RLF grant. Applicants may 

requests waivers of the cost 

share requirements based on 

hardship, as described in the 

guideline. 

Eligible governmental 

entities may apply for up 

to $200,000 per site for 

cleanup grants for sites 

they own. Due to budget 

limitations, no entity should 

apply for cleanup grants at 

more than five sites. Cleanup 

grants also require the applicant 

to contribute a 20 percent cost 

sharing for cleanup grant 

awards; this cost share may be 

in the form of money, labor, 

material or services that would 

be eligible and allowable costs 

under the cleanup grant.. 

Applicants may requests 

waivers of the cost share 

requirements based on 

hardship, as described in the 

guideline. 

Grant Application 

Schedule and Details 

Initial Proposals must be 

postmarked or sent via 

registered or tracked mail 

to the appropriate 

Regional representative by 

November 27, 2002 with a 

copy to Headquarters. 

105 
Applicants are encouraged to 

work with their EPA Regional 

Brownfields Contacts in the 

preparation of their Initial 

Proposals. 

106 
Fact Sheets

CERCLA Liability and the Small

Business Liability Relief and

Brownfields Revitalization Act

September 2002 

Title I - Small Business

Liability Protection

The new Brownfields Law 

provides liability protection 

for certain businesses and 

municipal waste 

contributors to NPL sites: 

• CERCLA liability 

exemption for certain 

small volume waste 

contributors to NPL sites 

(i.e., contributors of less 

than 110 gallons or 200 

pounds), if waste has not 

contributed significantly 

to cost of response action. 

• CERCLA liability 

exemption for certain 

contributors of municipal 

solid waste (MSW)(e.g., 

certain residential 

property owners, small 

businesses, non-profits), if 

MSW has not contributed 

significantly to cost of 

response action 

.• Shifts court costs and 

attorneys fees to a private 

party if a private party 

loses a Superfund 

contribution action 

S

against de micromis or 

municipal solid waste exempt 

party. 

EPA anticipates issuing 

guidance related to the de 

micromis and MSW exemptions 

by December, 2002. 

Title II - Brownfields

Revitalization and

Environmental Restoration

– Subtitle B

The new Brownfields Law 

provides that, under certain 

circumstances, simply owning 

contaminated property does not 

result in CERCLA liability. 

The law clarifies Superfund 

liability for: 

• Contiguous Property Owners 

• Bona Fide Prospective 

Purchasers 

• Innocent Landowners. 

Contiguous Property

Owners: property owners 

owning contaminated property 

107 
contiguous to a Superfund site 

are exempt from CERCLA 

liability, if the owner: 

• is not otherwise liable for 

the contamination and is not 

affiliated with a liable party 

• takes reasonable steps with 

respect to hazardous 

substances on the property, 

cooperates and provides 

assistance and site access, 

complies with land use 

controls, site information 

requests, and legal notice 

requirements 

• conducts “all appropriate 

inquiry” at time of purchase 

and demonstrates they did 

not know or have reason to 

know of contamination. 

Prospective Purchasers: 

For purchasers buying 

contaminated property after 

date of enactment, potential 

CERCLA liability is limited 

to a “windfall lien” for 

increase in value of the 

property attributable to EPA’s 

response action, provided the 

purchaser: 

• is not otherwise liable for 

the contamination and is not 

affiliated with a liable party 

• does not impede cleanup, 

exercises appropriate care 

by taking reasonable steps, 

cooperates and provides 

assistance and site access, 

complies with land use 

controls, site information 

requests, and legal notice 

requirements, 

• 

appropriate inquiries” 

prior to purchase 

and conducts “all 

EPA issued guidance on its

approach to implementing

the Bona Fide Prospective

Purchaser amendments

in view of the limitation on 

liability for prospective 

purchasers. See, Memorandum 

from Barry Breen, “Bona Fide 

Prospective Purchasers and the 

New Amendments to CERCLA.” 

(May 31, 2002). Prior to the 

amendments, prospective 

purchasers needed to enter into 

prospective purchaser agreements 

(PPAs) with EPA to address their 

CERCLA liability concerns. In its 

May 31 guidance EPA explained 

that by providing a statutory 

liability limitation, Congress had 

made the need for PPAs 

unnecessary in most instances and 

identified those limited 

circumstances where they might 

be appropriate. 

EPA is planning on issuing 

guidance on implementation of 

the “windfall lien” provision in 

December 2002. 

108 
Fact Sheets

Use of Alternative Dispute

Resolution in Enforcement and

Compliance Activities

September 2001 

Introduction

Alternative Dispute Resolution (ADR) is a tool which 

enhances a negotiation process and is a standard component of EPA's enforcement 

and compliance program. 

ADR should be considered 

at any point when negotiations 

are possible. This fact sheet 

answers common questions 

about the use of ADR in 

enforcement and compliance 

activities. 

What is ADR?

ADR is a short-hand term for 

a set of processes which assist 

parties in resolving their 

disputes quickly and efficiently. Central to each 

method of ADR is the use of 

an objective third party or 

neutral. In this fact sheet the 

use of the term “ADR” refers 

to all ADR processes. The 

methods used by the Agency 

include the following: 

• Convening is the first step in a 

dispute resolution process. A 

neutral party explores with the 

parties whether they are 

interested in using ADR, makes 

a recommendation about the 

most appropriate way to 

proceed, and assists the parties 

in selecting a neutral. 

• Mediation is the primary ADR 

tool used by EPA. It is a 

voluntary and informal process 

in which the disputing parties 

select a neutral third party to 

assist them in reaching a 

negotiated settlement. Since 

mediators have no power to 

impose a solution on the 

parties, they help disputants 

shape solutions to meet the 

interests and needs of all 

parties. In mediation, EPA 

retains its control of the case as 

well as its settlement authority. 

• Allocation is the use of third 

party-neutrals to assist the 

parties in determining their 

relative responsibilities for 

Superfund site costs. 

• Fact-finding, often used in 

technical disputes, involves the 

109 
investigation of issues by a 

neutral party who gathers 

information and prepares a 

summary of key issues. (Fact 

finding is often used as part of a 

negotiation process.) 

• Neutral Evaluation is a 

process which is useful for 

cases involving complex 

scientific and technical issues. 

A neutral party conducts an 

evaluation and provides the 

disputants with an assessment 

of the strengths and weaknesses 

of each party’s case and a 

prediction about the potential 

outcome of the case. 

• Mini-trial is a process in which 

the decision-makers for each 

side of a dispute hear a 

summary of the best case 

presented by the attorneys for 

each side. Following the 

presentations, the principals 

engage in negotiations, often 

with the assistance of the 

neutral party. 

• Arbitration is the process in 

which a neutral party considers 

the facts and arguments 

presented by parties in a dispute 

and renders a binding or nonbinding decision using 

applicable law and procedures. 

• Facilitation is a process in 

which parties with divergent 

views use a neutral facilitator to 

improve communications and 

work toward agreement on a 

goal or the solution to a 

problem. The facilitator runs 

the process, helping the parties 

set ground rules, design 

meeting agendas, and 

communicate more effectively. 

• Partnering is a collaborative 

process in which the 

participants commit to work 

cooperatively to improve 

communications and avoid 

disputes in order to achieve a 

common goal. Typically, a 

neutral helps the participants 

create a partnering agreement 

that defines how they will 

interact and what goals they 

seek to achieve. 

What is EPA's policy on

the use of ADR in

enforcement actions?

EPA has utilized ADR in 

appropriate enforcement and 

compliance activities since 

1987. The Administrative 

Dispute Resolution Act of 

1996, (P.L. 104-320), 5 

U.S.C. 571 (ADRA), which 

encourages the use of ADR in 

all federal disputes, strengthened EPA's enforcement and 

compliance ADR policy. 

Each Federal district court is 

required to establish its own 

ADR program and to encourage and promote the use of 

110 
Fact Sheets

ADR in its district (Alternative Dispute Resolution Act of 

1998 (P.L. 105-315), 28 

U.S.C. 651). 

What is EPA's experience

with ADR in enforcement

actions?

The Agency has used ADR to 

assist in the resolution of over 

200 enforcement-related 

disputes to date. ADR has 

been used in negotiations 

arising under every environmental statute that EPA 

enforces. Mediated negotiations have ranged from 

two-party Clean Water Act 

(CWA) cases to Superfund 

disputes involving upwards of 

1200 parties. 

Participants in the 1990 

ADR pilot for Superfund 

cases reported the following 

benefits: 

• constructive working 

relationships were developed 

• obstacles to agreement and the 

reasons therefor were quickly 

identified 

• mediators helped prevent 

stalemates 

• costs of preparing a case for 

DOJ referral were eliminated. 

• ongoing relationships were 

preserved. 

What are the benefits of

using ADR in

enforcement actions?

• It lowers the transaction costs 

for resolving the dispute. 

• Mediated negotiations tend to 

focus more on resolving real 

issues, rather than posturing, 

and are less likely to get 

derailed by personality 

conflicts. 

• In mediation, the parties are 

more likely to identify 

settlement options that are 

tailored to their particular 

needs. 

• It alleviates the time-consuming 

burdens on EPA of organizing 

negotiations because a third 

party neutral is available to 

handle these tasks. This is 

particularly valuable in multiparty cases. 

How do I know that ADR

is appropriate for my

enforcement case?

If you can answer the following questions affirmatively, 

then ADR may be appropriate 

for your case: 

• Are there present or foreseeable 

difficulties in the negotiation 

which will require time or 

resources to overcome in order 

111 
to reach settlement? 

• Is your case negotiable, i.e. no 

precedent-setting issues are 

involved? 

• Is there enough case 

information to substantiate the 

violation(s)? 

• Is there sufficient time to 

negotiate in light of court or 

statutory deadlines, or are the 

parties willing to sign a tolling 

agreement (an understanding 

that a statutory deadline for 

starting a lawsuit will be 

extended)? 

What ADR services are

available for

enforcement/compliance

disputes?

Assistance for the use of ADR 

for enforcement and compliance cases is available by 

phone at any time from the 

Headquarters and/or Regional 

Enforcement/Compliance 

ADR Specialists, identified at 

the end of this fact sheet. 

EPA has an indefinite services 

contract for dispute resolution 

services with a management 

consulting firm that focuses 

on environmental dispute 

resolution and public participation. Through in-house 

expertise and contract support 

EPA can also provide assistance in: confidential consultation regarding use of ADR 

in specific enforcement/ 

compliance cases; assistance 

in the location, selection and 

contracting of ADR professionals; provision of the entire 

range of ADR services and 

logistical support of consensus building processes. 

What funding is available

to pay for EPA's share of

ADR expenses in these

enforcement/compliance

cases?

Funding for ADR services 

needs to come from each 

Region's extramural funds. In 

the Superfund program there 

is a delivery order funded and 

managed by the Office of Site 

Remediation Enforcement 

(OSRE) for limited convening 

services for enforcement and 

compliance disputes. 

What contract

mechanisms are available

to obtain ADR services

for enforcement/

compliance related

activities?

The following options are 

available: (1) the consensus 

and dispute resolution support 

112 
Fact Sheets

services contract managed by 

the Consensus and Dispute 

Resolution Program (Debbie 

Dalton, Project Officer, 202-

564-2913), (2) expedited sole 

source contracting authorized 

by recent changes to Federal 

Acquisition Regulations 

(FAR), and (3) the Regional 

Enforcement Support Services 

(ESS) contract, depending on 

the language in the contract. 

To date, the dispute resolution 

support services contract has 

been the primary vehicle used 

by the ADR program. 

A procurement request and 

other contracting documents 

must be submitted for each 

case to the appropriate contract official. It takes approximately 30 days to process the 

contracting documents 

through the contracts office. 

Models of an ADR procurement request and other 

contracting documents for 

enforcement actions are 

available on disk from the 

HQ ADR Team or your 

regional ADR Specialist. 

Each Region should designate 

a lead staff contact for contract coordination. 

Who manages the

contract with the

selected ADR neutral in

an enforcement/

compliance case?

Each site-specific use of ADR 

in an enforcement case requires either a separate contract or task order which is 

managed by the nominating 

region. To establish a contract 

or task order, the contracts 

office requires the designation 

of a Task Order Project 

Officer (TOPO). The Remedial Project Manager (RPM), 

On Scene Coordinator 

(OSC), or other person familiar with the case may serve 

as a TOPO. 

What are the

requirements for

expedited sole source

hiring of neutrals in

enforcement/compliance

cases?

The FAR allows for expedited 

sole source contracting in 

enforcement actions when 

the anticipated value of 

neutral services does not 

exceed $2500, and the price 

is reasonable1

. Contracts 

113 
where the anticipated value 

exceeds $2500, but is less 

than $100,000 are set aside 

for small business concerns2

. 

If the TOPO receives only one 

offer from a small business 

concern, the contract should 

be awarded to that firm. If 

there are no acceptable 

offers, the set aside is withdrawn. Sole source contracting can then be used if only 

one source is reasonably 

available3

, but the TOPO 

must provide a written explanation for the absence of 

competition4

. 

How do I identify

appropriate neutrals for

my enforcement/

compliance case?

EPA has developed a National 

Roster of Environmental 

Dispute Resolution and 

Consensus Building Professionals in conjunction with 

the U.S. Institute for Environmental Conflict Resolution 

(USIECR)5

. This Roster will 

be one of several sources of 

information which federal 

agencies can use to identify 

appropriately experienced 

conflict resolution professionals for use in resolving environmental and natural resource disputes or issues in 

controversy under the ADRA 

of 1996 and the Negotiated 

Rulemaking Act of 1996. The 

Roster can be used to identify 

neutrals for an enforcement 

action “when the ADR Services Contract is not appropriate, cost effective or timely.” 

Roster information is available on the USIECR website, 

http://www.ecr.gov. ADR 

specialists and others who 

have been trained will be able 

to obtain information from the 

Roster for case teams. 

How does a case team in

an enforcement/

compliance activity

select and contract with

an ADR neutral for his/

her services? How long

does this take?

The selection of an appropriate ADR neutral for an enforcement/compliancecase is 

by agreement of all parties to 

the dispute. The regional/ 

DOJ case team represents the 

U.S. in this decision. Assistance in identifying and 

considering appropriate 

neutrals for an enforcement 

action is available from the 

114 
Fact Sheets

HQ ADR Team or through 

EPA's contractor. 

The services of the selected 

ADR neutral are obtained by 

all the parties to a dispute by 

entering a contract with the 

neutral. The contract, generally called a “mediation 

agreement,” covers arrangements for sharing and paying 

the mediator's fees, the role of 

the mediator, confidentiality 

issues, and the right of any 

party to withdraw from the 

mediation. An EPA approved 

model mediation agreement is 

available on disk from your 

regional ADR Specialist or 

from the HQ ADR Team. You 

should use this as the basis for 

your negotiations in enforcement cases. 

The agreement is negotiated 

by the case team and the 

private parties, with assistance, if needed, from the HQ 

ADR Team or an ADR expert 

from Marasco Newton. 

Experience has shown that the 

model agreement is generally 

acceptable to private parties 

and it often takes no longer 

than two weeks to obtain a 

signed agreement. 

Does a Region have the

authority to sign the

agreement with the ADR

professional?

Yes. Once the funding has 

been committed by the 

Agency, the Region, generally 

the staff attorney, signs the 

agreement for EPA. 

How much does it

usually cost to use ADR

in an enforcement/

compliance case?

The cost of ADR services in 

an enforcement/compliance 

case is determined by several 

factors, including the ADR 

professional's fees and travel, 

costs of meeting space, and 

the length of settlement 

discussions. All costs associated with the selected ADR 

process are shared equitably 

among the parties. EPA staff 

1. FAR Subpart 6.001 (a) 

FAR Subpart 13.202 (a) (2) 

2. FAR Subpart 19.5 

3. FAR Subpart 13.106-1 (b)(1) 

4. FAR Subpart 13.106-3(a)(2) 

5. The Institute is affiliated with the 

Morris K. Udall Foundation in 

Tucson,Arizona 

115 
should keep the Agency's 

share payment commensurate 

with EPA's interest in the 

ADR process. At present, the 

Agency may pay a portion of 

the costs of the convening 

process and up to 50% of the 

ADR costs in an enforcement/ 

compliance activity, where the 

Agency is a party to the 

selected ADR process. The 

Agency may, in appropriate 

circumstances, help to defray 

private parties’ costs of 

obtaining ADR services in 

Superfund allocation 

deliberations. The Agency 

may pay up to 20% of the 

costs of ADR services in 

these situations. 

The average costs of some 

specific ADR processes are as 

follows: 

• Allocation is generally between 

$50,000 and $75,000; 

• Convening costs are 

approximately $25,000; and 

• Community involvement cases 

are usually between $100,000 

and $150,000 depending on the 

number of stakeholders and the 

complexity of the issues. 

Why must the costs

associated with using

ADR in enforcement/

compliance activities be

shared equitably by the

parties?

To assure the neutrality of the 

ADR professional involved, it 

is important that all parties to 

the dispute share the costs to 

the greatest extent possible. 

This creates a more equal 

ground and prevents parties 

from feeling any bias in an 

enforcement/compliance 

action. Some parties can 

provide in-kind contributions 

towards the cost of ADR when 

they are unable to provide an 

equal share of the costs. In all 

other cases, EPA must share 

the costs of a neutral's services 

with the other parties to an 

enforcement/compliance 

dispute. 

Are there specific

guidelines for the use of

arbitration in EPA

enforcement and

compliance activities?

Section 575 of the ADRA 

permits the use of binding 

arbitration in an enforcement 

action with the consent of all 

parties and eliminates the 

Agency's right to vacate an 

award issued within 30 days. 

116 
Fact Sheets

However, prior to using 

binding arbitration, the 

Agency must have issued 

guidance on the appropriate 

use of arbitration6. The act 

has two other prerequisites: 1) 

arbitration agreements7 must 

specify a maximum award, 

and 2) the person offering to 

use arbitration must have 

settlement authority. At 

present EPA may enter into 

binding arbitration for 

Superfund cost recovery 

claims not exceeding 

$500,000 (excluding interest) 

under CERCLA Section 

122(h)(2), 42 U.S.C. 

9622(h)(2) and 40 C.F.R. 304 

(1996). This regulation 

requires that the Administrator 

and one or more Potentially 

Responsible Parties (PRPs) 

submit a joint request for 

arbitration. 

Are government

payments made to an

ADR professional in a

Superfund action tracked

and recoverable as site

costs for cost recovery

purposes?

Expenditures by the Agency 

in support of the use of ADR 

in a Superfund action are cost 

recoverable expenses, 

reimbursement of which may 

be obtained through regional 

settlements or legal action. 

Regions may exercise their 

enforcement discretion 

regarding recovery of ADR 

expenditures. Each ADR case 

is assigned a separate task 

order or contract to allow for 

site tracking of ADR 

expenses. 

Is training available for

the use of ADR in

enforcement actions?

Yes. A one day overview 

training on the use of ADR in 

enforcement negotiations is 

offered in all of the regions. 

Furthermore, there are ADR 

components in several other 

popular EPA training courses. 

If you are interested in the 

training schedule for the 

current year call NETI at 

(202-564-6069). 

6. 40 C.F.R. 304 

7. Agreements to arbitrate are 

enforceable pursuant to 9 U.S.C. 4 

117 
Enforcement/Compliance ADR Specialists

NAME PHONE # FAX # 

Region 1 

Ellie Tonkin 617/918-1726 918-1809 

Marcia Lamel 918-1778 918-1809 

Doug Thompson 918-1543 918-1809 

Andrea Simpson 918-1738 918-1809 

Catherine Garypie 918-1540 918-1809 

Region 2 

Tom Lieber 212/637-3158 637-3115 

Janet Conetta 637-4417 637-4429 

Region 3 

Pat Hilsinger 215/814-2642 814-2601 

Joan A. Johnson 814-2619 814-3001 

Region 4 

Lisa Ellis 404/562-9541 562-9486 

Region 5 

John Tielsch 312/353-7447 886-7160 

Beth Henning 312/886-5892 353-9176 

Region 6 

Jim Dahl 214/665-2151 665-2182 

Manisha Patel 665-2770 665-6660 

Region 7 

Cheryle Micinski 913/551-7274 551-7925 

Region 8 

Maureen O’Reilly 303/312-6402 312-6409 

Karen Kellen 312-6518 312-6953 

Arnie Ondarza 312-6777 312-7025 

Region 9 

Kim Muratore 415/744-2373 744-1917 

Marie Rongone 744-1313 744-1041 

Allyn Stern 744-1372 744-1041 

Region 10 

Ted Yackulic 206/553-1218 553-0163 

HQ Enforcement/Compliance ADR Team

David Batson 202/564-5103 564-0093 

Lee Scharf 564-5143 564-0091 

Phil Page 564-4211 564-0091 

118
Fact Sheets

Policy Toward Owners of Property

Containing Contaminated Aquifers

United States Environmental Protection Agency 

Office of Enforcement and Compliance Assurance 

November 1995 

This fact sheet summarizes a new EPA policy regarding 

groundwater contamination. The "Policy Toward Owners of 

Property Containing Contaminated Aquifers" was issued as 

part of EPA's Brownfields Economic Redevelopment Initiative 

which helps states, communities, and other stakeholders in 

economic redevelopment to work together in a timely manner 

to prevent, assess, safely clean up, and sustainably reuse 

brownfields. Brownfields are abandoned, idled, or under-used 

industrial and commercial facilities where expansion or 

redevelopment is complicated by real or perceived environmental contamination. 

EPA issued this policy to help owners of property to which 

groundwater contamination has migrated or is likely to migrate from a source outside the property. This fact sheet is 

based on EPA's interpretation of the Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA, commonly known as Superfund) and existing EPA 

guidance. Under the policy, EPA will not take action to compel such property owners to perform cleanups or to reimburse 

the agency for cleanup costs. EPA may also consider de 

minimis settlements with such owners if they are threatened 

with law suits by third parties. 

Background

Approximately eighty-five percent of the sites listed on the 

National Priorities List involve some degree of groundwater 

contamination. The effects of such contamination are often 

widespread because of natural subsurface processes such as 

119 
infiltration and groundwater 

flow. It is sometimes difficult 

to determine the source of 

groundwater contamination. 

Under Section 107(a)(l) of 

CERCLA (also found at 42 

United States Code § 

9607(a)(l)), any "owner" of 

contaminated property is 

normally liable regardless of 

fault. This section of 

CERCLA creates uncertainty 

about the liability of owners 

of land containing contaminated aquifers who did not 

cause the contamination. This 

uncertainty makes potential 

buyers and lenders hesitant to 

invest in property containing 

contaminated groundwater. 

The intent of the Contaminated Aquifer Policy is to 

lower the barriers to the 

transfer of property by reducing the uncertainty regarding 

future liability. It is EPA's 

hope that by clarifying its 

approach towards these 

landowners, third parties will 

act accordingly. 

Policy Summary

EPA will exercise its enforcement discretion by not taking 

action against a property 

owner to require clean up or 

the payment of clean-up costs 

where: 1) hazardous substances have come to the 

property solely as the result 

of subsurface migration in an 

aquifer from a source outside 

the property, and 2) the 

landowner did not cause, 

contribute to, or aggravate 

the release or threat of 

release of any hazardous 

substances. Where a property 

owner is brought into third 

party litigation, EPA will 

consider entering a de minimis 

settlement. 

Elements of the

Policy

There are three major issues 

which must be analyzed to 

determine whether a particular 

landowner will be protected 

from liability by this policy: 

• the landowner's role in the 

contamination of the aquifer; 

• the landowner's relationship 

to the person who contaminated the aquifer; and 

• the existence of any groundwater wells on the landowner's property that affect 

the spread of contamination 

within the aquifer. 

120 
Fact Sheets

Landowner's Role in the

Contamination of the

Aquifer

A landowner seeking protection from liability under this 

policy must not have caused 

or contributed to the source of 

contamination. However, 

failure to take steps to mitigate or address groundwater 

contamination, such as conducting groundwater investigations or installing groundwater remediation systems, 

will not, in the absence of 

exceptional circumstances, 

preclude a landowner from the 

protection of this policy. 

Landowner's

Relationship to the

Person who Caused the

Aquifer Contamination

First, this policy requires that 

the original contamination 

must not have been caused by 

an agent or employee of the 

landowner. Second, the 

property owner must not have 

a contractual relationship with 

the polluter. A contractual 

relationship includes a deed, 

land contract, or instrument 

transferring possession. Third, 

Superfund requires that the 

landowner inquire into the 

previous ownership and use of 

the land to minimize liability. 

Thus, if the landowner buys a 

property from the person who 

caused the original contamination after the contamination 

occurred, the policy will not 

apply if the landowner knew 

of the disposal of hazardous 

substances at the time the 

property was acquired. For 

example, where the property 

at issue was originally part of 

a larger parcel owned by a 

person who caused the release 

and the property is subdivided 

and sold to the current owner, 

who is aware of the pollution and the subdivision, 

there may be a direct or 

indirect "contractual relationship" between the person that 

caused the release and the 

current landowner. In this 

instance, the owner would not 

be protected by the policy. 

In contrast, land contracts or 

instruments transferring title 

are not considered contractual 

relationships under CERCLA 

if the land was acquired after 

the disposal of the hazardous 

substances and the current 

landowner did not know, and 

had no reason to know, that 

121 
any hazardous substance had 

migrated into the land. 

The Presence of a

Groundwater Well on

the Landowner's

Property and its

Effects on the Spread

of Contamination in

the Aquifer

Since a groundwater well may 

affect the migration of contamination in an aquifer, 

EPA's policy requires a factspecific analysis of the circumstances, including, but not 

limited to, the impact of the 

well and/or the owner's use of 

it on the spread or containment of the contamination in 

the aquifer. 

Common Questions

Regarding Application of

the Policy

"If a prospective buyer 

knows of aquifer contamination on a piece of property 

at the time of purchase, is he 

or she automatically liable 

for clean-up costs?" 

No. In such a case the buyer's 

liability depends on the 

seller's involvement in the 

aquifer contamination. If the 

seller would have qualified for 

protection under this policy, 

the buyer will be protected. 

For example, if the seller of 

the property was a landowner 

who bought the property 

without knowledge, did not 

contribute to the contamination of the aquifer and had no 

contractual relationship with 

the polluter, then the buyer 

may take advantage of this 

policy, despite knowledge of 

the aquifer contamination. 

In contrast, if the seller has a 

contractual relationship with 

the polluter and the buyer 

knows of the contamination, 

then this policy will not 

protect the buyer. 

"If an original parcel of 

property contains one 

section which has been 

contaminated by the seller 

and another uncontaminated section which is 

threatened with contamination migrating through the 

aquifer, can a buyer be 

protected under the policy if 

he or she buys the threatened 

section of the property?" 

122 
Fact Sheets

The purchase of the threatened parcel separate from the 

contaminated parcel establishes a contractual relationship between the buyer and 

the person responsible for the 

threat. This policy will not 

protect such a buyer unless 

the buyer can establish that he 

or she did not know of the 

pollution at the time of the 

purchase and had no reason to 

know of the pollution. To 

establish such lack of knowledge the buyer must prove 

that at the time he acquired 

the property he inquired into 

the previous ownership and 

uses of the property. 

Protection from

Third Party Law Suits

Finally, EPA will consider de 

minimis settlements with 

landowners who meet the 

requirements of this policy if 

a landowner has been sued or 

is threatened with third-party 

suits. A de minimis settlement 

is an agreement between the 

EPA and a landowner who 

may be liable for clean up of a 

small portion of the hazardous 

waste at a particular site. To 

be eligible for such a settlement, the landowner must not 

have handled the hazardous 

waste and must not have 

contributed to its release or 

the threat of its release. Once 

the EPA enters into a 

de minimis settlement with a 

landowner, third parties may 

not sue that landowner for the 

costs of clean-up operations. 

Whether or not the Agency 

issues a de minimis settlement, 

EPA may seek the landowner's 

full cooperation (including 

access to the property) in 

evaluating and implementing 

cleanup at the site. 

For further information contact: 

This policy was issued on May 24, 1995 

and published in the Federal Register on 

July 3, 1995 (volume 60, page 34790). 

You may order a copy of the policy from 

the National Technical Information 

Service (NTIS), U.S. Department of 

Commerce, 5825 Port Royal Rd., 

Springfield, VA 22161. 

Orders must reference NTIS accession 

number PB96-109145. 

123 
For telephone orders or further 

information on placing an order: 

call NTIS at

(703) 487-4650

for regular service, or

(800) 553-NTIS for rush service.

For orders via e-mail/Intemet, send to

the following address:

orders@ntis.fedworld.gov

For more information about the

Contaminated Aquifer Policy, call

Elisabeth Freed, (202) 564-5117, Office

of Site Remediation Enforcement.

124 
Fact Sheet 

The Effect of Superfund on 

Involuntary Acquisitions of 

Contaminated Property by 

Government Entities 

United States Environmental Protection Agency 

Office of Enforcement and Compliance Assurance 

December 1995 

Units of state, local, and federal government sometimes involuntarily acquire contaminated property as a result of performing their governmental duties. Government entities often 

wonder whether these acquisitions will result in Superfund 

liability. This fact sheet summarizes EPA's policy on Superfund 

enforcement against government entities that involuntarily 

acquire contaminated property. This fact sheet also describes 

some types of government actions that EPA believes qualify for 

a liability exemption or a defense to Superfund liability. 

Introduction 

EPA's Brownfields Economic 

Redevelopment Initiative is 

designed to help states, 

communities, and other 

stakeholders in economic 

redevelopment to work together in a timely manner to 

prevent, assess, safely clean 

up, and sustainably reuse 

brownfields. Brownfields are 

abandoned, idled, or underused industrial and commercial facilities where expansion 

or redevelopment is complicated by real or perceived 

environmental contamination. 

Many municipalities and other 

government entities are eager 

for brownfields to be redeveloped but often hesitate to take 

any steps at these facilities 

because they fear that they 

will incur Superfund liability. 

This fact sheet answers 

common questions about the 

effect of the Comprehensive 

Environmental Response, 

Compensation, and Liability 

Act (CERCLA, commonly 

known as Superfund, and set 

forth at 42 United States Code 

125 
beginning at Section 9601) on 

involuntary acquisitions by 

government entities. EPA 

hopes that this fact sheet will 

facilitate government entities' 

plans for redevelopment of 

brownfields and the "brokerage" of those facilities to 

prospective purchasers. 

What is an involuntary 

acquisition? 

EPA considers an acquisition 

to be "involuntary" if it meets 

the following test: 

• The government's interest in, 

and ultimate ownership of, 

the property exists only 

because the actions of a 

non-governmental party 

give rise to the government's legal right to control 

or take title to the property. 

For example, a government's 

acquisition of property for 

which a citizen failed to pay 

taxes is an involuntary acquisition because the citizen's tax 

delinquency gives rise to the 

government's legal right to 

take title to the property. 

Will a government entity 

that involuntarily acquires 

contaminated property be 

liable under CERCLA? 

To protect certain parties from 

liability, CERCLA contains 

both liability exemptions and 

affirmative defenses to liability. A party who is exempt 

from CERCLA liability with 

respect to a specified act 

cannot be held liable under 

CERCLA for committing that 

act. A party who believes that 

he or she has an affirmative 

defense to CERCLA liability 

must prove so by a preponderance of the evidence. 

After it involuntarily acquires 

contaminated property, a unit 

of state or local government 

will generally be exempt from 

CERCLA liability as an 

owner or operator. In addition, 

the unit of state or local 

government will have a 

somewhat redundant affirmative defense to CERCLA 

liability known as a "thirdparty" defense, provided other 

requirements for the defense, 

which are described below, 

are met. A federal government 

entity that involuntarily 

acquires contaminated prop126 
Fact Sheet 

erty and meets the requirements described below will 

have a third-party defense to 

CERCLA liability. 

The requirements for a thirdparty defense to CERCLA 

liability are the following: 

• The contamination occurred 

before the government entity 

acquired the property; 

• The government entity 

exercised due care with 

respect to the contamination 

(e.g., did not cause, 

contribute to, or exacerbate 

the contamination); and 

• The government entity took 

precautions against certain 

acts of the party that caused 

the contamination and 

against the consequences of 

those acts. 

A government entity will not 

have a CERCLA liability 

exemption or defense if it has 

caused or contributed to the 

release or threatened release 

of contamination from the 

property. As a result, acquiring property involuntarily 

does not unconditionally or 

permanently insulate a government entity from CERCLA 

liability. Government entities 

should therefore ensure that 

they do not cause or contribute to the actual or potential 

release of hazardous substances at facilities that they 

have acquired involuntarily. 

For more information, see 42 

U.S.C. 9601(20) (D), 

9607(b)(3), and 9601(35)(A) 

and (D). 

It is also important to note 

that the liability exemption 

and defense described above 

do not shield government 

entities from any potential 

liability that they may have as 

"generators" or "transporters" 

of hazardous substances under 

CERCLA. For additional 

information, see 42 U.S.C. 

9607(a). 

What are some examples of 

involuntary acquisitions? 

CERCLA provides a nonexhaustive list of examples of 

involuntary acquisitions by 

government entities. These 

examples include acquisitions following abandonment, bankruptcy, tax 

delinquency, escheat (the 

transfer of a deceased person's 

property to the government 

when there are no competent 

127 
heirs to the property), and 

other circumstances in 

which the government 

involuntarily obtains title by 

virtue of its function as a 

sovereign. 

What is EPA's official 

policy regarding CERCLA 

enforcement against 

government entities that 

involuntarily acquire 

contaminated property? 

In 1992, EPA issued its Rule 

on Lender Liability Under 

CERCLA ("Rule"), 57 Federal Register 18344 (April 29, 

1992). The Rule included a 

discussion of involuntary 

acquisitions by government 

entities. In 1994, the Rule was 

invalidated by the court. 

In September 1995, EPA and 

the U.S. Department of 

Justice (DOJ) issued their 

"Policy on CERCLA Enforcement Against Lenders and 

Government Entities that 

Acquire Property Involuntarily" ("Lender Policy"). In 

the document, EPA and DOJ 

reaffirm their intentions to 

follow the provisions of the 

Rule as enforcement policy. 

The Lender Policy advises 

EPA and DOJ personnel to 

consult both the Rule and its 

preamble while exercising 

their enforcement discretion 

with respect to government 

entities that acquire property 

involuntarily. Most of the 

relevant portions of the Rule 

and preamble have been 

summarized in this fact sheet. 

Under the Lender Policy, EPA 

has expanded the examples 

listed in CERCLA by describing the following categories of 

involuntary acquisitions: 

• Acquisitions made by 

government entities acting as a 

conservator or receiver 

pursuant to a clear and direct 

statutory mandate or 

regulatory authority (such as 

acquisition of the security 

interests or properties of failed 

private lending or depository 

institutions); 

• Acquisitions by government 

entities through foreclosure 

and its equivalents while 

administering a governmental 

loan, loan guarantee, or loan 

insurance program; and 

• Acquisitions by government 

entities pursuant to seizure or 

forfeiture authority. 

Similar to the examples listed 

in CERCLA, EPA's list of 

128 
Fact Sheet

categories of involuntary 

acquisitions is non-exhaustive. 

To determine whether an 

activity not listed in CERCLA 

or under the Lender Policy is 

an "involuntary acquisition," 

one should analyze whether 

the actions of a non-governmental party give rise to the 

government's legal right to 

control or take title to the 

property. 

If a government entity takes 

some sort of voluntary 

action before acquiring the 

property, can the acquisition 

still be considered "involuntary"? 

Yes. Involuntary acquisitions, 

including the examples listed 

in CERCLA, generally require some sort of discretionary, volitional action by the 

government. A government 

entity need not be completely 

"passive" in order for the 

acquisition to be considered 

"involuntary" for purposes of 

CERCLA. For further discussion, see 57 Fed. Reg. 18372 

and 18381. 

Will a government entity 

that involuntarily acquires 

contaminated property be 

liable under CERCLA to 

potentially responsible 

parties and other nonfederal entities? 

If a unit of state or local 

government involuntarily 

acquires property through any 

of the means listed in 

CERCLA, it will be exempt 

from CERCLA liability as an 

owner or operator. In addition, 

any government entity will 

have a third-party defense to 

CERCLA liability if all 

relevant requirements for that 

defense are met (see above). 

If a government entity acquires property through any 

other means, it appears likelybased on the way that courts 

have treated lender issues 

during the last few years - that 

a court would apply principles 

and rationale that are consistent with EPA and DOJ's 

Lender Policy. Analysis of 

these acquisitions may require 

an examination of case law 

and state or local laws. 

If someone dies and leaves 

129 
contaminated property to a 

government entity, is this 

considered an involuntary 

acquisition? 

No, this type of property 

transfer is not considered an 

involuntary acquisition under 

CERCLA. However, CERCLA 

provides a third-party defense 

for parties that acquire property by inheritance or bequest 

(a gift given through a will). 

Thus, a government entity that 

acquires property in this 

manner will have a third-party 

defense to CERCLA liability if 

all relevant requirements of 

that defense are met and the 

government entity has not 

caused or contributed to the 

release or threatened release of 

contamination from the property (see above). For more 

information, see 42 U.S.C. 

9607(b)(3) and 9601 (35)(A) 

and (D). 

Will a government entity that 

uses its power of eminent 

domain be liable under 

CERCLA? 

After a government entity 

acquires property through the 

exercise of eminent domain 

(the government's power to 

take private property for 

public use) by purchase or 

condemnation, it will have a 

third-party defense to 

CERCLA liability if all 

requirements for that defense 

are met (see above). For more 

information, see 42 U.S.C. 

9607(b)(3) and 9601(35)(A). 

Will parties that purchase 

contaminated property from 

government entities also be 

exempt from CERCLA 

liability? 

No. Nothing in CERCLA 

allows non-governmental 

parties to be exempt from 

liability after they knowingly 

purchase contaminated property. However, EPA encourages prospective purchasers of 

contaminated property to 

contact their state environmental agencies to discuss 

these properties on a site-bysite basis. At sites where an 

EPA action has been taken, is 

ongoing, or is anticipated to 

be undertaken, various tools, 

including "prospective purchaser agreements," may be 

an option. 

130 
Fact Sheet 

For further information: 

The Lender Policy was published in the 

Federal Register in Volume 60, Number 

237, at pages 63517 to 63519 

(December 11, 1995). 

You may order copies of the Lender 

Policy from the National Technical 

Information Service (NTIS), U.S. 

Department of Commerce, 5285 Port 

Royal Rd., Springfield, VA 22161. 

Orders must reference NTIS accession 

number PB95-234498. For telephone 

orders or further information on placing 

an order, call NTIS at 703-487-4650 for 

regular service or 800-553-NTIS for 

rush service. For orders via e-mail/ 

Internet, send to the following address 

orders @ ntis.fedworld.gov 

If you have questions about this fact 

sheet, contact Bob Kenney of EPA's 

Office of Site Remediation Enforcement 

at (202) 564-5127. 

131 
This page is intentionally blank. 

132
Fact Sheet 

Using Supplemental Environmental 

Projects to Facilitate Brownfields 

Re-development 

United States Environmental Protection Agency

Office of Enforcement and Compliance Assurance

330-F-98-001

Office of Site Remediation Enforcement

Policy and Program Evaluation Division 2273G

September 1998 

In April 1998, EPA issued the 

final "Supplemental Environmental Projects Policy." In 

that policy EPA encourages 

the use of Supplemental 

Environmental Projects in the 

settlement of environmental 

enforcement actions. Using 

SEPs to assess or cleanup 

brownfield properties is an 

effective way to enhance the 

environmental quality and 

economic vitality of areas in 

which the enforcement actions 

were necessary, 

Introduction 

In settlements of environmental enforcement cases, defendant/respondents often pay 

civil penalties. EPA encourages parties to include 

Supplemental Environmental 

Projects (SEPs) in these 

settlements and will take 

SEPs into account in setting 

appropriate penalties. While 

penalties play an important 

role in deterring environmental and public health violations, SEPs can play an 

additional role in securing 

significant environmental and 

public health protection and 

improvement. EPA's final 

Supplemental Environmental 

Projects Policy (SEP Policy) 

describes seven categories of 

SEPs, the legal guidelines for 

designing such projects, and 

the methodology for calculating penalty credits. In certain 

cases, SEPs may facilitate the 

reuse of "brownfield" property. This fact sheet answers 

common questions about how 

SEPs can be used in the 

brownfields context. 

133 
What are Brownfields? 

EPA defines brownfields as 

abandoned, idled, or underused industrial and commercial facilities where expansion 

or redevelopment is complicated by real or perceived 

environmental contamination. 

In many cases assessment of 

the environmental condition 

of a property is all that is 

necessary to spur its reuse. 

Through the Brownfields 

Economic Development 

Initiative, EPA has developed 

a number of tools to prevent, 

assess, safely cleanup and 

promote the sustainable reuse 

of brownfields. SEPs are one 

of the tools that can be used at 

brownfields properties. 

What is a SEP? 

A SEP is an environmentally 

beneficial project that a 

defendant/respondent agrees 

to undertake in settlement of a 

civil penalty action, but that 

the defendant/respondent is 

not otherwise legally required 

to perform. In return, a percentage of the SEP's cost is 

considered as a factor in 

establishing the amount of a 

final cash penalty. SEPs 

enhance the environmental 

quality of communities that 

have been put at risk due to 

the violation of an environmental law. 

Meeting Legal 

Requirements 

The SEP Policy has been 

carefully structured to ensure 

that each SEP negotiated by 

EPA is within the Agency's 

authority and consistent with 

statutory and Constitutional 

requirements. Although all of 

the legal requirements in the 

Policy must be met when 

considering a SEP at a 

brownfield, the following 

requirements are particularly 

important: 

SEPs at Brownfields Cannot 

Include Action that the 

Defendant/Respondent is 

Otherwise Legally Required 

to Perform 

Activities at a brownfield site 

for which the defendant/ 

respondent is otherwise 

legally required to perform 

under federal, state, or local 

law or regulation cannot 

constitute a SEP. This 

restriction includes actions 

that the defendant/respondent 

134 
Fact Sheet 

is likely to be required to 

perform (1) as injunctive 

relief in any action brought by 

EPA or another regulatory 

agency, or (2) as part of an 

order or existing settlement in 

another legal action. This 

restriction does not pertain to 

actions that a regulatory 

agency could compel the 

defendant/respondent to 

undertake if the Agency is 

unlikely to exercise that 

authority. 

As a general rule, if a party 

owns a brownfield or is 

responsible for the primary 

environmental degradation at 

a site, assessment or cleanup 

activities cannot constitute a 

SEP. 

SEPs at Brownfield Require 

an Adequate Nexus between 

the Violation and the Project 

The SEP Policy requires that a 

relationship, or nexus, exist 

between the violation and the 

proposed project. A SEP at a 

brownfield will generally 

satisfy the nexus requirement 

if the action enhances the 

overall public health or 

environmental quality of the 

area put at risk by the violation. 

A SEP is not required to be at 

the same facility where the 

violation occurred provided 

that it is within the same 

ecosystem or within the 

immediate geographical area. 

In general, the nexus requirement will be satisfied if the 

brownfield is within a 50 mile 

radius of the site from which 

the violation occurred. However, location alone is not 

sufficient to satisfy the nexus 

requirement - the environment 

where the brownfield is 

located must be affected or 

potentially threatened by the 

violation. 

A relationship between the 

statutory authority for the 

penalty and the nature of the 

SEP is not required in order 

for the nexus test to be met. 

Therefore, the violation need 

not relate to hazardous waste 

or contaminated properties in 

order for EPA to consider a 

SEP at a brownfield. (e.g., in 

the case of a Clean Air Act 

violation, EPA could approve 

a SEP at a brownfield). 

135 
SEPs at Brownfields Cannot 

include Actions that the 

Federal Government is 

Likely to Undertake or 

Compel Another to Undertake 

If EPA or another federal 

agency has a statutory obligation to assess, investigate, or 

take other response actions at 

a brownfield, or to issue an 

order compelling another to 

take such action, the Agency 

may not negotiate a SEP 

whereby the defendant/ 

respondent carries out those 

activities. 

As a general rule, SEPs are 

inappropriate at the following 

site types because of EPA's 

statutory obligations: 

• sites on the National Priorities 

List under the Comprehensive 

Environmental Response, 

Compensation, and Liability 

Act (CERCLA), § 105, 40 CFR 

Part 300, Appendix B; 

• sites where the federal 

government is planning or 

conducting a removal action 

pursuant to CERCLA § 104(a) 

and the National Oil and 

Hazardous Substances 

Pollution Contingency Plan, 40 

CFR § 300.415; and 

• sites for which the defendant/ 

respondent or other party would 

likely be ordered to perform an 

assessment, response, or 

remediation activity pursuant to 

CERCLA § 106, the Resource 

Conservation and Recovery Act 

(RCRA), § 3013, § 7003, § 

3008(h), the Clean Water Act 

(CWA) § 311, and other federal 

law. 

SEPs may be Performed at 

Brownfields Involuntarily 

Acquired by Municipalities 

As stated above, if EPA would 

likely issue an order compelling a Party to cleanup a 

brownfield, such remedial 

action cannot be the subject of 

a SEP. Pursuant to the portion 

of the CERCLA Lender 

Liability Rule addressing 

involuntary acquisitions, 40 

C.F.R. § 300.115, the Agency 

will not issue a remediation 

order to a municipality that 

has involuntarily acquired a 

brownfield even if the Agency 

would otherwise issue such an 

order to a private owner. 

Therefore, if 

(1) a brownfield is acquired 

involuntarily by a local 

government, 

(2) there are no other potential 

liable parties, and 

136 
Fact Sheet 

(3) the known level of 

contamination would not 

compel the Agency to take 

action itself, 

a SEP at this property would 

be appropriate. 

SEPs May Be Limited at 

Brownfields that Received 

Federal Funds 

A SEP cannot provide a 

municipality, state, or other 

entity that has received a 

federal Brownfields Assessment Demonstration Pilot or 

other federal brownfields 

grant with additional funds to 

perform a specific task identified within the assistance 

agreement. If a defendant/ 

respondent proposes a SEP 

whereby the party provides 

money to a local government 

to assess or cleanup a 

brownfield, the municipality 

must not have received a 

federal grant to carry out the 

same work. Similarly, a 

defendant/respondent cannot 

on its own undertake assessment or other response work 

at a brownfield when a grant 

recipient has received federal 

funds to undertake the same 

project. A SEP could, however, include additional 

cleanup activities at a site so 

long as those activities are not 

the same as those performed 

with federal brownfield 

funding. For example, at a site 

which a federal Brownfields 

Targeted Site Assessment is 

performed, a SEP that cleans 

up the same site would be an 

appropriate project (provided 

that a CERCLA 104(a) removal action is not warranted). 

Selecting an Appropriate 

SEP Activity for a 

Brownfield Site 

The SEP Policy identifies two 

categories of SEPs that are 

appropriate for brownfields. 

Environmental Quality 

Assessment Projects 

In general terms, environmental quality assessments 

involve investigating or 

monitoring the environmental 

media at a property. To be 

eligible as SEPs, such activities must be conducted in 

accordance with recognized 

protocols, if applicable, for 

the type of work to be undertaken. 

137 
Assessment projects may not, 

as indicated, include work that 

the federal government would 

undertake itself or issue an 

order to accomplish. Therefore if a SEP involves an 

assessment of site conditions 

at a brownfield, the site must 

not be one where EPA is 

planning or conducting 

assessment activities. Both 

CERCLIS and EPA's PreCERCLIS Screening Guidance are useful to determine 

whether a federal assessment 

is warranted or planned. 

Environmental Restoration 

Projects 

For sites at which contamination does exist, but where an 

EPA response action or order 

to a party is not warranted, a 

SEP may involve removing or 

remediating contaminated 

media or material. Restoration 

SEPs can involve restoring 

natural environments, such as 

ecosystems, or man-made 

environments, such as facilities and buildings. Creating 

conservation land, such as 

transforming a former landfill 

into wilderness land may be 

an appropriate SEP. The 

removal of substances that the 

federal government does not 

have clear authority to address, such as contained 

asbestos or lead paint, may 

also constitute an appropriate 

restoration project. 

Community Input 

No one can judge the value to 

a community of an assessment 

or cleanup project at a 

brownfield better than the 

community in which the site 

is located. Local communities 

are the most affected by 

environmental violations, and 

have the most to gain by SEPs 

that address their concerns. 

Therefore, in appropriate 

cases local communities 

should be afforded an opportunity to comment on and 

contribute to the design of 

proposed SEPs at brownfield 

sites. Accordingly, Regions 

are encouraged to promote 

public involvement in accordance with the Community 

Input procedures set forth 

within the SEP Policy. 

Evaluation Checklist for 

SEPs at Brownfields 

On the next page, two ex138 
Fact Sheet 

amples are provided to 

demonstrate typical proposals Regions may receive 

from parties that wish 

conduct SEPs at 

brownfields. One of the 

proposals would be approved and the other would 

not. A checklist of questions 

along with answers is 

provided to demonstrate the 

analysis Regions should 

apply when considering 

such requests. 

For further information contact: 

If you have any questions regarding 

this fact sheet, please contact the 

Office of Site Remediation 

Enforcement at (202) 564-5100. To 

access the SEP Policy on the internet, 

open page: http://epa.gov/compliance/ 

resources/policies/cleanup/superfund/ 

proj-brownf-mem.pdf 

For further information about EPA's 

Brownfield Economic Development 

Initiative go to page http:// 

www.epa.gov/brownfields 

Hypothetical A: 

The Company A owns and operates a 

manufacturing facility in downtown 

Cityville. The company uses solvents 

as part of its manufacturing process. 

During its operation, Company A 

discharges wastewater into the 

Running River. EPA alleges that on at 

least one occasion, the level of 

solvents in the wastewater exceeded 

the level specified in EPA's effluent 

the level specified in EPA's effluent 

standards under the Clean Water Act. 

EPA filed a civil complaint seeking 

penalties for the CWA violation. 

Company A proposed doing a SEP to 

partly reduce the penalty. The project 

involves assessing the environmental 

conditions of a nearby abandoned lot. 

The lot is owned not by the Company, 

but by the Cityville government, 

which obtained title from the previous 

owner via tax foreclosure. To date, 

Cityville has been attempting to 

interest developers in the property but 

to no avail due to concerns regarding 

possible contamination from a prior 

industrial operation at the lot. To 

determine the extent of contamination, Cityville recently received a 

federal Brownfields Assessment 

Demonstration Pilot. 

Hypothetical B: 

Company B owns and operates a 

factory in downtown Springfield. EPA 

conducted an inspection of the 

factory's air emissions and determined 

that the Company has violated certain 

Clean Air Act (CAA) standards 

resulting in the release of air pollutants into the nearby neighborhood. 

EPA filed a civil complaint seeking 

penalties for the CAA violations. 

Company B proposed doing a SEP 

that involves the cleanup of debris at 

an abandoned parcel located several 

blocks away, downwind from 

Company B's factory. The lot is filled 

with used tires and abandoned trash, 

and is infested with vermin. The lot is 

the site of a former bakery which long 

ago went bankrupt. There is no 

history of any past industrial operation on-site. 

139 
CHECKLIST 

• Does the project contribute to the revitalization of an abandoned, idled, or under-used 

industrial or commercial property where redevelopment has been complicated by real or 

perceived environmental contamination? 

A. Yes. Conducting soil sampling will help revitalize the abandoned lot because it will resolve the 

questionable environmental condition of the property that has discouraged developers. 

B. Yes. Cleaning up the used tires and trash and addressing the vermin problem at this former 

bakery site will make the property more attractive to developers. 

• Does the project include actions that the defendant/respondent would otherwise likely be 

required to perform under federal, state, or local law or regulation? Is there a court or 

administrative order or existing settlement agreement that would obligate the defendant/ 

respondent to undertake the proposed project? 

A. No. Company A does not own the property, and there is no reason to suspect that Company A 

would be responsible for any contamination that may be discovered at the site. 

B. No. Company B does not own the property, and there is no reason to suspect that the 

company would be required under federal, state, or local law to remove debris from the site. 

• Is there an adequate nexus between the violation and the brownfield? Is the project 

within the same ecosystem or within a 50 mile radius of the facility where the violation 

occurred? 

A. Yes. The site is located close to the Company's facility, and the proposed SEP addresses the 

same ecosystem and human population threatened by the Company's wastewater discharge. 

B. Yes. The abandoned parcel is located downwind of Company B's factory. The proposed SEP 

addresses the same ecosystem and human population threatened by the illegal air emissions. 

• Does the SEP address environmental conditions that the federal government is statutorily 

obligated to either address itself or order another to address? Is the site on CERCLA's 

National Priorities List? Is the Agency likely to conduct a removal under CERCLA, or might 

the Agency order any party to perform remediation activity pursuant to CERCLA, RCRA, or 

the CWA? 

A. No. There is no indication that EPA has documented any contamination at the site or would 

investigate the abandoned lot. Therefore, there is no reason to believe that the Agency would 

consider conducting an investigation or removal action or compel any party to undertake such 

activities. 

B. No. There is no indication that the federal government has a statutory obligation to remove 

debris from the abandoned parcel. The site is not on the National Priorities List, and there is no 

reason to believe that the types of debris at issue would warrant the Agency to conduct a 

removal action or compel any party to undertake any response activity. 

• Does the SEP provide a municipality, state, or other entity that has received a federal 

brownfields grant additional funds to perform a specific task identified within the 

assistance agreement? Does the defendant/respondent seek to undertake work at a site 

where a federal grant recipient has received an award to undertake the same work? 

A. Yes. Cityville has received funding through a federal Brownfields Assessment Demonstration 

Pilot. 

B. No. There is no indication that Springfield or any entity has received a federal grant to clean up 

the property. 

• Does the SEP involve an Environmental Quality Assessment Project or an Environmental 

Restoration Project? 

A. Yes. The soil sampling project can be categorized as an Environmental Quality Assessment 

Project. 

B. Yes. Removal of the debris can be categorized as an Environmental Restoration Project. 

140 
Fact Sheet 

Brownfields and RCRA Fact Sheet 

United States Environmental Protection Agency 

Office of Site Remediation Enforcement 

EPA 330/F/99/001 

November 1999 

Background 

In February 1995, EPA 

announced its Brownfields 

Action Agenda, launching the 

first federal effort of its kind 

designed to empower states, 

tribes, communities, and other 

parties to safely cleanup, and 

return brownfields to 

productive use. Building on 

the original agenda, in 1997 

EPA initiated the Brownfields 

National Partnership Agenda, 

involving nearly 20 other 

federal agencies in 

brownfields cleanup and 

reuse. Since the 1995 

announcement, EPA has 

funded brownfield pilot 

projects, reduced barriers to 

cleanup and redevelopment by 

clarifying environmental 

liability issues, developed 

partnerships with interested 

stakeholders, and stressed the 

importance of environmental 

workforce training. 

To date, EPA has focused 

primarily on brownfield issues 

associated with the 

Comprehensive 

Environmental Response, 

Compensation, and Liability 

Act (CERCLA or Superfund). 

Representatives from cities 

and industries, as well as 

other stakeholders however, 

have begun emphasizing the 

importance of looking beyond 

CERCLA and addressing 

environmental issues at 

brownfield sites in a more 

comprehensive manner, 

including issues related to the 

Resource Conservation and 

Recovery Act (RCRA). This 

fact sheet provides a brief 

overview of RCRA and its 

potential requirements for 

parties dealing with 

Brownfields are abandoned, idled, or underused industrial and commercial facilities where 

expansion or redevelopment is complicated by 

real or perceived environmental contamination. 

141 
brownfields and their 

associated assessment and 

cleanup activities. 

RCRA 

The Resource Conservation 

and Recovery Act, an amendment to the Solid Waste 

Disposal Act, was enacted in 

1976 to address a problem of 

enormous magnitude--the 

huge volumes of municipal 

and industrial solid waste 

generated nationwide. Generally, the RCRA program 

focuses on prevention rather 

than cleanup. 

Table 1 

RCRA allows the state to 

assume responsibility for 

implementing a hazardous 

waste regulatory program, 

with oversight from the 

federal government. In order 

for a state to implement such 

a program under RCRA, it 

must receive authorization 

from EPA. To obtain authorization the state program must 

be at least equivalent to and 

consistent with the federal 

rules, and must provide for 

adequate enforcement. In 

states that have received 

authorization, known as 

“authorized states,” the state’s 

authorized hazardous waste 

program applies in lieu of the 

RCRA's Three Interrelated Programs 

Subtitle D 

Solid Waste Program 

Focuses on state and 

local governments as 

the primary planning, 

regulation, and 

implementing entities 

for the management of 

nonhazardous solid 

waste, such as 

household garbage and 

nonhazardous 

industrial solid waste. 

Subtitle C 

Hazardous Waste 

Program 

Establishes a system for 

controlling hazardous 

waste from the time it is 

generated until its 

ultimate disposal - in 

effect, from cradle to 

grave. 

Subtitle I 

Underground Storage 

Tank Program 

Regulates underground 

tanks storing hazardous 

substances and 

petroleum products. 

Major objectives are to 

prevent and clean up 

releases from these 

tanks. 

142 
Fact Sheet

federal program, although 

EPA retains its enforcement 

authorities. 

RCRA establishes three 

distinct yet interrelated 

programs. The solid waste 

program, under RCRA 

Subtitle D, encourages states 

to develop comprehensive 

plans to manage nonhazardous industrial solid waste and 

municipal solid waste, sets 

criteria for municipal solid 

waste landfills and other solid 

waste disposal facilities, and 

prohibits the open dumping 

of solid waste. The underground storage tank (UST) 

program, under RCRA 

Subtitle I regulates underground tanks storing hazardous substances (but not 

hazardous waste) and petroleum products. Subtitle C of 

RCRA provides for the 

comprehensive regulation of 

hazardous waste. When fully 

implemented, this program 

provides “cradle-to-grave” 

regulation of hazardous waste 

by establishing a system for 

controlling and tracking the 

waste from its generation 

through its ultimate disposal. 

The hazardous waste requirements under RCRA Subtitle C 

are the focus of this fact sheet 

because brownfield activities 

may, in certain instances, 

involve the management of 

hazardous waste. 

RCRA’s Cradle-to-Grave 

Hazardous Waste Management System 

Under RCRA Subtitle C, EPA 

has developed a comprehensive program to ensure that 

hazardous waste is managed 

safely from the moment it is 

generated; while it is transported, treated, or stored; 

including final disposal (see 

Figure 1). Therefore, Subtitle 

C requirements apply to three 

Figure 1 

Hazardous 

Waste 

Generation 

Hazardous 

Waste 

Transportation 

Treatment, 

Storage, 

and 

Disposal 

143 
classes of hazardous waste 

handlers: generators; transporters; and treatment, storage or disposal facilities. 

Generators 

Subtitle C regulations broadly 

define the term generator to 

include any person who: 

• First creates or produces a 

hazardous waste (e.g., from an 

industrial process) 

OR 

• First brings a hazardous waste 

into the RCRA Subtitle C 

system (e.g., imports a 

hazardous waste into the US). 

Hazardous waste (HW) 

generators may include 

various types of facilities and 

businesses ranging from large 

manufacturing operations, 

universities, and hospitals to 

small businesses and laboratories. Because these different types of facilities generate 

different volumes of wastes 

resulting in varying degrees 

of environmental risk, RCRA 

regulates generators based on 

the amount of waste they 

generate in a calendar month. 

There are three categories of 

hazardous waste generators 

(see Table 2). 

Transporters 

A hazardous waste transporter 

is any person engaged in the 

off-site transportation of 

hazardous waste within the 

United States, if such transportation requires a manifest 

(generated by a small quantity 

generator or large quantity 

generator). Off-site transportation includes shipments 

from a hazardous waste 

generator’s facility to another 

facility for treatment, storage, 

or disposal. Regulated offsite transportation includes 

shipments of hazardous waste 

by air, rail, highway, or water. 

Treatment, Storage, and 

Disposal Facilities (TSDFs) 

The requirements for treatment, storage, and disposal 

facilities (TSDFs) are more 

extensive than the standards 

for generators and transporters. They include general 

facility operating standards, as 

well as standards for the 

various types of units in 

which hazardous waste is 

managed. With some excep144 
Fact Sheet

tions, a TSDF is a facility 

engaged in one or more of the 

following activities: 

• Treatment - Any method, 

technique, or process designed 

to physically, chemically, or 

biologically change the nature 

of a hazardous waste 

• Storage - Holding hazardous 

waste for a temporary period 

(greater than 90 days), after 

which that hazardous waste is 

treated, disposed of, or stored 

elsewhere 

• Disposal - The discharge, 

deposit, injection, dumping, 

spilling, leaking, or placing of 

any solid or hazardous waste on 

or in the land or water. 

Identifying Hazardous 

Waste 

Determining whether a 

material must be managed in 

accordance with subtitle C 

regulatory requirements 

involves three steps. The first 

step in the hazardous waste 

identification process is 

determining if a waste is a 

solid waste. With some 

exceptions, the regulations 

define solid waste as any 

material that is discarded, 

regardless of its physical state 

(i.e., solid, liquid, semi-solid, 

or contained gas). For more 

information on the exceptions 

see 40 CFR Part 261.4. Once 

a waste is classified as a solid 

waste, the second step is to 

determine whether the waste 

is hazardous as defined by the 

Subtitle C hazardous waste 

regulation. 

According to EPA definitions, 

a material can be hazardous if 

it falls into one of the following categories: 

• It exhibits a “characteristic” of 

hazardous waste (see 40 CFR 

Part 261, Subpart D). 

• The Agency has specifically 

designated (or “listed”) the 

material as hazardous (see 40 

CFR Part 261, Subpart D). 

Characteristic wastes are 

hazardous because their 

inherent properties exhibit 

one or more of the following: 

ignitability (some paints and 

cleaning agents are examples), 

corrosivity (such as waste 

sulfuric acid from car batteries), reactivity (e.g., discarded explosives), or toxicity 

(e.g., lead or arsenic). Regulations in Part 261 define 

145 
these properties. being handled.

Listed wastes are wastes from RCRA as it Relates to

particular industrial processes, Brownfields

wastes from certain industry

sectors, and certain unused Brownfields may come under

chemical formulations when RCRA jurisdiction in two

discarded or intended for ways. First, RCRA cleanup

discard. requirements apply at

brownfields that are RCRA 

The third step for determin- treatment, storage or disposal 

ing whether RCRA Subtitle facilities (TSDF). All treatC requirements apply is ment storage or disposal 

what one does with the mate- facilities are required to obtain 

rial: that is, how is the charac- a RCRA permit. Unless the 

ter-istic or listed material site becomes subject to 

Table 2 

Generator Categories 

Large Quantity 

Generators 

Small Quantity 

Generators 

Conditionally 

Exempt Small 

Quantity Generators 

Conditionally exempt 

small quantity generators 

(CESQGs) - defined as 

those facilities that 

generate: 

• Less than 100 kg of 

hazardous waste per 

month 

OR 

• Less than 1 kg of 

acutely hazardous 

waste per month 

+ May not accumulate 

more than 1,000 kg at 

one time 

Large quantity 

generators (LQGs) -

defined as those 

facilities that generate: 

• 1,000 kg of hazardous 

waste per calendar 

month or greater 

OR 

• Greater than 1 kg of 

acutely hazardous 

waste per calendar 

month 

+ A LQG may 

accumulate hazardous 

waste on site for 90 

days or less without a 

RCRA permit 

Small quantity 

generators (SQGs) -

defined as those 

facilities that: 

• Generate between 

100 kg and 1,000 kg 

of hazardous waste 

per month 

OR 

• Accumulate less than 

6,000 kg of 

hazardous waste at 

any time 

+ A SQG may 

accumulate hazardous 

waste on site for 180 

days or less 

146 
Fact Sheet

RCRA solely as a result of 

conducting cleanup, these 

RCRA permits are required to 

address the cleanup of releases from any unit where 

solid or hazardous wastes 

have been placed at any time. 

Pursuant to 3008(h), EPA, 

may through an administrative or judicial order, also 

compel cleanup at facilities 

that have, or should have had 

interim status, as well as some 

facilities that had interim 

status. Many states have 

similar authority. 

Second, cleanups at 

brownfields that were not 

previously RCRA facilities 

can trigger RCRA requirements. In the course of a 

cleanup, hazardous waste may 

be generated, treated, stored, 

or disposed of on site. If this 

occurs, the property may 

become subject to RCRA. 

Applicable RCRA regulations 

may include the requirement 

to obtain a permit if certain 

treatment, storage, or disposal 

occurs on site. However, if 

the waste is promptly removed from the site (within 

90 days), the remediator 

could be regulated as a hazardous waste generator, and 

would not be required to 

obtain a permit. 

Cleanup Responsibilities 

Under RCRA 

The State or Federal agency 

implementing the RCRA 

program where a site is 

located has the authority to 

compel Corrective Action 

(CA) at a treatment, storage, 

or disposal facility (TSDF). 

Generator-only sites are not 

subject to RCRA corrective 

action requirements. However, in certain circumstances, 

under RCRA §7003, where 

a condition at a site may 

present an imminent and 

substantial endangerment to 

human health and/or the 

environment, EPA has the 

authority to compel present 

and past owners and operators 

as well as generators to clean 

up a site. 

HWIR-Media Rule and 

Brownfields 

The recently promulgated 

Hazardous Remediation 

Waste Management Requirements (HWIR-Media) Final 

147 
Rule makes a number of 

changes that should address 

some concerns regarding the 

application of RCRA to 

brownfield sites. HWIRMedia encourages cleanup 

activities, particularly at sites 

that may not otherwise be 

subject to CA, such as 

brownfields, making requirements under RCRA for 

facilities handling only hazardous remediation wastes 

more flexible (i.e., those 

wastes managed as a result of 

cleaning-up a site). Among 

other things, the rule provides 

incentives for brownfield 

cleanup by no longer mandating facility-wide corrective 

action at cleanup only sites; 

reducing permitting requirements to streamline the 

administrative process; and by 

creating a new kind of unit 

called a “staging pile” that 

allows more flexibility in 

temporarily storing 

remediation waste during 

cleanup activities. 

RCRA Brownfields Prevention 

In June of 1998, EPA announced its RCRA 

Brownfields Prevention 

Initiative which included 

forming a national workgroup 

to identify ways, in appropriate situations, to facilitate the 

cleanup and reuse of previously used property which 

may have RCRA implications. EPA also plans to 

select a few regionally sponsored pilots in 2000 to help 

our goal of protective, expeditious cleanups that allow 

future reuse of the property. 

While the RCRA Brownfields 

Prevention Initiative will not 

address large scale regulatory 

or legislative reform, it will 

build on the statutory and 

regulatory flexibility that 

currently exists. The goals 

for EPA’s RCRA Brownfields 

Prevention Initiative are 

1. To raise awareness by 

announcing and publicizing 

our intentions in undertaking 

this initiative to lenders, 

developers, community 

representatives and other 

stakeholders in brownfields 

cleanup and reuse. 

2. To work with our partners on 

brownfields reuse to gather 

information, identify and 

address RCRA barriers, and 

develop solutions. 

148 
Fact Sheet

3. To develop tools such as fact 

sheets and pilot good ideas 

generated from dialogue with 

interested stakeholders. 

Questions and Answers 

Q: What is a RCRA 

Brownfield? 

A: Brownfields are abandoned 

or underutilized industrial and 

commercial properties whose 

potential for redevelopment is 

complicated by real or perceived environmental contamination irrespective of 

whether the property is subject to Superfund, RCRA or 

another statute. RCRA 

brownfields are simply 

brownfields that may be or 

have been subject to RCRA 

requirements or may have 

RCRA statutory or regulatory 

implications. 

Q: Does EPA have an established program for RCRA 

Brownfields? 

A: In June of 1998, EPA 

announced its RCRA 

Brownfields Prevention 

Initiative which included 

forming a national workgroup 

to identify ways, in appropriate situations, to facilitate the 

cleanup and reuse of previously used property which 

may have been subject to 

RCRA requirements. 

Q: How do I find out if a piece 

of property is regulated under 

RCRA? 

A: You can find out whether a 

property is currently regulated 

under RCRA by contacting 

the state where the property is 

located or by calling the 

RCRA hotline at 800/424-

9346. 

Q: What is the difference 

between Superfund/CERCLA 

and RCRA? 

A: In operation, RCRA 

primarily regulates active 

facilities and is focused on 

how wastes should be managed to avoid potential threats 

to human health and the 

environment although it does 

have a cleanup (i.e., corrective 

action) component. 

CERCLA, on the other hand, 

149 
comes into play primarily 

when a site has been abandoned or mismanagement has 

occurred (i.e., when there has 

been a release or a substantial 

threat of a release in the 

environment of a hazardous 

substance or of a pollutant or 

contaminant that presents an 

imminent and substantial 

threat to human health or the 

environment). 

Q: How is a site or facility 

defined under RCRA? 

A: For purposes of corrective 

action, RCRA defines a 

facility as all contiguous 

property under the control of 

the owner or operator seeking 

a permit under Subtitle C or 

subject to an order under § 

3008(h) of RCRA. 

Q: What activities may subject 

a person to RCRA corrective 

action (CA)? 

A: Generally, treatment, 

storage or disposal of waste 

listed or identified as hazardous under Subtitle C subjects 

a facility to the corrective 

action requirements (unless it 

is a cleanup only site.) 

Q: If I clean up my site under 

CERCLA, do I still have 

worry about RCRA 

requirements? 

A: A cleanup under CERCLA 

should be adequate to meet 

the RCRA cleanup, or corrective action requirements. 

However, a CERCLA cleanup 

does not exempt you from 

RCRA regulations. Sitespecific factors need to be 

evaluated by the implementing agency on a case-by-case 

basis; consult your State, EPA 

Regional office or the RCRA 

hotline. 

Q: As a RCRA facility, are 

there any brownfield 

incentives that I can take 

advantage of? 

A: At the federal level, EPA is 

exploring administrative 

options, within the existing 

statutory framework, to 

provide incentives. EPA plans 

to select a few regionally 

sponsored pilots in 2000 to 

help our goal of protective, 

150 
Fact Sheet

expeditious cleanups that 

allow future reuse of the 

property. Check with your 

respective state and/or local 

governments for incentives 

offered independently of the 

federal government. 

Q: Will sampling trigger 

RCRA? 

A: No, sampling should not 

generally trigger RCRA 

regulations. 

Q: Who is responsible for 

cleanup at a RCRA site? 

A: Unlike Superfund, under 

RCRA generally the current 

owner/operator of a facility is 

responsible for cleanup. 

However, under RCRA §7003 

the implementing Agency has 

the authority to compel past 

owners and operators as well 

as generators to clean up a site 

in certain circumstances. 

Q: How do I get more information? 

A: Visit EPA’s web site at: 

www.epa.gov/oswer or Call 

our RCRA hotline: 800/424-

9346 or 703/412-9810 

For more information on a 

specific site in your area you 

should contact your state 

because RCRA is primarily 

implemented by the states. 

For further information contact: 

Tessa Hendrickson - (202) 564-6052 

Office of Site Remediation and 

Enforcement 

151 
This page is intentionally blank. 

152
Fact Sheet 

The Imminent and Substantial 

Endangerment Provision of Section

7003 of RCRA 

United States Environmental Protection Agency

Office of Site Remediation Enforcement

Quick Reference Fact Sheet

Section 7003 of the Resource Conservation and Recovery Act 

(RCRA), 42 U.S.C. Section 6973, provides EPA with a broad 

and effective enforcement tool that can be used to abate imminent and substantial endangerments to health or the environment. Designed for use by EPA staff, this fact sheet helps 

clarity the meaning of “imminent and substantial endangerment” and describes the usefulness of Section 7003. 

Introduction 

RCRA Section 7003 allows 

EPA to address situations 

where the handling, storage, 

treatment, transportation, or 

disposal of any solid or 

hazardous waste may present 

an imminent and substantial 

endangerment to health or the 

judicial action or issue an 

administrative order to any 

person who has conducted or 

is contributing to such handling, storage, treatment, 

transportation, or disposal to 

require the person to refrain 

from those activities or to take 

any necessary action. 

Section 7003(a) is very 

similar to the imminent and 

substantial endangerment 

provision contained in 

CERCLA Section 106(a) of 

the Compensation, Comprehensive Environmental Response, Compensation, and 

Liability Act (CERCLA), 42 

U.S.C. Section 9606(a). In 

addition, it allows EPA to 

require some actions that can 

also be required under the 

corrective action provision set 

forth in Section 3008(h) of 

RCRA, 42 U.S.C. Section 

6928(h). However, RCRA 

Section 7003 provides EPA 

with a very valuable enforcement tool by allowing EPA to 

address several types of 

situations that are beyond the 

scope of CERCLA Section 

106(a) and RCRA Section 

153 
3008(h). 

The Meaning of “Imminent 

and Substantial Endangerment” 

Despite the dramatic sound of 

the term “imminent and 

substantial endangerment,” it 

is not very difficult to meet 

the endangerment standard set 

forth in RCRA Section 7003. 

The “imminent and substantial endangerment” language 

and standard contained in 

CERCLA Section 106(a) and 

RCRA are very similar to the 

language and in Section 

106(a) and RCRA Section 

7002, 42 U.S.C. Section 

6972, the RCRA citizen suit 

provided provisions which 

allows any person to commence a civil action to seek 

abatement of an imminent and 

substantial endangerment to 

heal or the environment. Thus 

far, the courts have not distinguished between the endangerment standards of these 

three provisions. The following principles have emerged 

from courts interpreting 

RCRA and CERCLA's imminent and substantial endangerment provisions: 

• An “endangerment” is an 

actual, threatened, or potential 

harm to health or the 

environment.[l] As underscored 

by Congress use of the words 

“may present” in the 

endangerment standard of § 

7003, neither certainty nor 

proof of actual harm is 

required.[2] Moreover, neither 

a release nor threatened release 

is required.[3] Endangerment 

to the environment does not 

require a risk to living 

organisms. Thus, a risk to 

groundwater in a populated area 

is sufficient even if the 

conditions may no present an 

endangerment to humans or 

other life forms.[4] 

• An endangerment can be 

“imminent” if the present 

conditions indicate that there 

may be a future risk to health or 

the environment,[5] even 

though the harm may not be 

realized for years.[6] It is not 

necessary for the harm to be 

immediate.[7] 

• An endangerment can be 

“substantial” if there is 

reasonable cause for concern 

that health or the environment 

may be at risk.[8] It is not 

necessary that the risk be 

quantified.[9] 

Factors to consider when 

determining if conditions may 

present an imminent and 

substantial endangerment 

under RCRA Section 7003 

154 
Fact Sheet

include (1) the levels of 

contaminants in various 

media, (2) the existence of a 

connection between the solid 

or hazardous waste and air, 

soil, groundwater, or surface 

water, (3) the pathway of 

exposure from the solid or 

hazardous waste to the population at risk, (4) the sensitivity of the population, (5) 

bioaccumulation in living 

organisms, and (6) visual 

signs of stress on vegetation.[10] It is important to 

note, however, that in any 

given case, one or two factors 

may be so predominant as to 

be determinative of the issue.[11] 

The following are some 

examples of situations where 

courts have determined that 

imminent and substantial 

endangerments have existed 

under RCRA: 

• At a shooting range where lead 

from lead shot had accumulated 

in the tissues of nearby 

waterfowl and shellfish.[12] 

• At a facility where oily waste 

containing hazardous 

constituents had leaked from 

tanks into surrounding 

soils.[13] EPA had determined 

that there was a potential for 

off-site migration of the 

contaminants through a 

drainage ditch leading toward a 

nearby river.[14] EPA also 

documented the death of 

several migratory birds and 

introduced evidence from the 

U.S. Fish and Wildlife Service 

indicating that there was a 

continuing threat to migratory 

birds.[15] 

• At a municipal landfill that had 

leaked at least 10% of its 

leachate containing low levels 

of lead into an adjacent 

wetland.[16] Lead levels in test 

wells surrounding the landfill 

were generally below the 

maximum contaminant levels 

(MCLs) for drinking water,[17] 

and no actual harm was shown 

to the wetland.[18] However, 

an expert testified that cattails 

in the wetland would not show 

actual harm until they had been 

exposed to contamination for 

an extended period of time.[19] 

• At a shopping center where dry 

cleaning solvents discharged 

from dry cleaning facilities had 

contaminated groundwater in a 

populated area.[20] 

Contaminant levels in the 

migrating plume exceeded 

MCLs.[21] Although some 

area wells had been closed at 

least in part because of the 

contaminated plume, the court 

found that the conditions may 

have presented an imminent 

and substantial endangerment 

to the environment, but not 

155 
necessarily to human 

health.[22] 

The Usefulness of Section 

7003 

Section 7003 provides broad 

enforcement authority that can 

be used against a variety of 

parties to address endangerments resulting from various 

types of materials and to 

require a wide variety of 

abatement actions. Section 

7003 is especially valuable 

because it allows EPA to 

address certain situations 

which cannot be addressed 

under either CERCLA Section 

106(a) or RCRA Section 

3008(h). 

Two examples of the general 

usefulness of Section 7003 are 

the following: 

• Under § 7003, “any person” 

includes any past or present 

generator, past or present 

transporter, or past or present 

owner or operator of a 

treatment, storage, or disposal 

facility. EPA can therefore 

initiate actions under Section 

7003 against parties including 

those falling into any of the 

four categories of potentially 

responsible parties (PRPs) 

under CERCLA. 

• Section 7003 allows EPA to 

require the respondent or 

defendant to cease any 

activities contributing to the 

endangerment and/or take any 

necessary action. Possible 

abatement actions include 

investigations and studies, 

interim measures, 

comprehensive corrective 

action, controls on future 

operations, and discontinuance 

of operations. 

Under CERCLA Section 

106(a), EPA may initiate a 

judicial action or issue an 

administrative order to a PRP 

when there may be an imminent and substantial endangerment because of an actual or 

threatened release of a “hazardous substance”. Advantages of RCRA Section 7003 

over CERCLASection 106(a) 

include the following: 

• Section 7003 can be used to 

issue administrative orders to 

any federal department or 

agency in an expeditious 

manner. Section 6001(a) of 

RCRA, 42 U.S.C. Section 6961 

(a), contains an express waiver 

of sovereign immunity that 

allows administrative orders 

and civil and administrative 

penalties and fines to be issued 

and assessed against any 

federal department or agency. 

156 
Fact Sheet

Section 6001(b) of RCRA, 42 

U.S.C. Section 6961(b), 

expressly grants the 

Administrator the authority to 

issue an administrative order to 

another federal department or 

agency pursuant to RCRA's 

enforcement authorities, 

including Section 7003. 

Although RCRA Section 

6001provides that an 

administrative order issued to 

federal department or agency 

does not become final until the 

department or agency has had 

the opportunity to confer with 

the Administrator, concurrence 

from the Department of Justice 

(DOJ) is not required for orders 

issued under RCRA Section 

7003. In contrast, Executive 

Order 12580 on Superfund 

Implementation (January 

23,1987) requires EPA to obtain 

DOJ concurrence before issuing 

an order to federal department 

or agency under CERCLA 

Section 106(a). RCRA Section 

7003 therefore allows for more 

expeditious issuance of orders 

to federal departments and 

agencies. 

• Section 7003 can be used to 

address endangerments caused 

by waste which is “solid waste” 

as defined in Section 1004(27) 

of RCRA, 42 U.S.C. Section 

6903(27), but which is not 

“hazardous waste” as defined in 

Section 1004(5) of RCRA, 42 

U.S.C.Section 6903(5), or in 

the regulations promulgated 

pursuant to Section 3001 of 

RCRA 42 U.S.C.Section 6921. 

The definition of “hazardous 

substance” in Section 101(14) 

of CERCLA, 42 U.S.C.Section 

9601(14), includes “hazardous 

waste” having characteristics 

identified under or listed 

pursuant to Section 3001 of 

RCRA. CERCLA's definition 

of “hazardous substance” does 

not include materials that 

qualify as “solid waste” under 

RCRA Section 1004(27), 

although it does encompass 

some materials, such as 

radionuclides, which are not 

“solid waste” and therefore 

cannot be addressed under 

RCRA Section 7003. 

Nevertheless, RCRA Section 

7003 can be used to address a 

significant category of 

materials, “solid waste” under 

Section 1004(27), that cannot 

be addressed under CERCLA 

Section 106(a). 

• Section 7003 can be used to 

address endangerments caused 

by “hazardous waste” that 

meets the broad definition of 

that term under Section 1004(5) 

of RCRA, but which does not 

meet the more narrow 

definitions of “hazardous 

waste” promulgated in 40 

C.F.R. Part 261 pursuant to 

RCRA Section 3001. As noted 

above, CERCLA's definition of 

“hazardous substance” includes 

“hazardous waste” having 

characteristics identified under 

157 
or listed pursuant to RCRA 

Section 3001. The CERCLA 

definition of “hazardous 

substance” does not include all 

materials that qualify as 

“hazardous waste” as defined in 

RCRA Section 1004(5). 

Section 7003 can therefore be 

used to address some hazardous 

wastes that are beyond the 

scope of CERCLA 

Section 106(a). 

• Section 7003 can be used to 

address endangerments caused 

by petroleum. Petroleum is 

excluded from the definition of 

“hazardous substance” in 

CERCLA Section 101(14). 

Petroleum is not excluded from 

the definitions of “solid waste” 

under RCRA Section 1004(27) 

or “hazardous waste” under 

RCRA Section 1004(5). RCRA 

Section 7003 can therefore be 

used to address a significant 

category of materials B 

petroleum and petroleum 

products B that cannot be 

addressed under CERCLA 

Section 106(a). 

RCRA Section 3008(h) allows 

EPA to require corrective 

action to address the release 

of hazardous waste or hazardous constituents at any treatment, storage, or disposal 

facility authorized to operate 

under interim status pursuant 

to Section 3005(e) of RCRA, 

42 U.S.C. Section 6925(e). 

EPA interprets the term 

“authorized to operate” to 

include facilities currently 

operating under interim status, 

as well as those that lost 

interim status or should have 

obtained interim status but 

failed to do so. RCRA § 

3008(h) does not require a 

finding of imminent and 

substantial endangerment. 

Nevertheless, advantages of 

RCRA Section 7003 over 

RCRA Section 3008(h) 

include the following: 

• Section 7003 can be used to 

address endangerments caused 

by “solid waste” that meets the 

definition of that term under 

Section 1004(27) of RCRA, but 

which does not meet the 

definition of “hazardous waste” 

under RCRA Section 1004(5 ). 

At least one court has held that 

RCRA Section 3008(h) applies 

to the release of hazardous 

constituents listed by EPA in 

Appendix VII I of 40 C.F.R. 

Part 261 and not merely to the 

release of “hazardous waste” as 

stated in RCRA Section 

3008(h).[23] Nevertheless, 

RCRA § 3008(h) does not 

appear to apply to the release of 

merely “solid waste” that is not 

a hazardous waste or a 

hazardous constituent. RCRA 

Section 7003 can therefore be 

used to address a significant 

158 
Fact Sheet

category of materials, “solid 

waste” under Section 1004(27), 

that cannot be addressed under 

RCRA Section 3008(h). 

• Section 7003 can be used to 

address spills of solid or 

hazardous waste by generators 

at facilities that are not 

authorized (and not required to 

be authorized) for interim status 

under RCRA Section 3008(h). 

RCRA Section 3008(h) applies 

only to releases from treatment, 

storage, or disposal facilities 

that have, had, or should have 

had interim status. Section 7003 

can therefore be used to address 

releases and other 

endangerments at a large 

category of facilities that are 

beyond the scope of Section 

3008(h): facilities at which 

solid or hazardous waste is 

generated but which neither 

have, had, nor were required to 

have, interim status. 

[1] See, e.g., Dague v. City of 

Burlington, 935 F.2d 1349,1356 

(2d Cir. 1991). 

[2] Id. 

[3] United States v. Aceto 

Agricultural Chemicals Corp., 

872 F.2d 1373, 1382 (8th Cir. 

1989). 

[4] See, e.g., Lincoln Properties. 

Ltd. v. Higgins, 23. Envtl. L. 

Rep. (Envtl. L. Inst.) 20665, 

20671-672 (E.D. Cal. 1993) 

[5] See, e.g., Dague, 935 F.2d at 

1356. 

[6] See, e.g., United States v. 

Conservation Chemical Co., 

619 F. Supp. at 194 (W.D. Mo. 

1985). 

[7] Dague, 935 F.2d at 1356. 

[8] See, e.g., Conservation 

Chemical Co., 619 F. Supp. at 

194. 

[9] Id. 

[10]See, e.g., Dague v. City of 

Burlington, 732 F. Supp. 458 

(D.Vt. 1989). 

[11] Conservation chemical Co., 

619 F. Supp. at 194. 

[12]Connecticut Coastal 

Fishermen's Association v. 

Remington Arms Co., Inc., 989 

F.2d 1305, 1317 (2d Cir. 1993). 

[13]United States v. Valentine, 856 

F. Supp. 621, 625 (D. Wyo. 

1994). 

[14]Id. at 624. 

[15]Id. at 624-625. 

[16]Dague, 935 F.2d at 1356. 

159 
[17]Dague, 732 F. Supp. at 463. 

[18]Id. at 469. 

[19]Id. at 468. 

[20]Lincoln Properties, 23 Envtl. L. 

Rep. at 20671-672. 

[21]Id. at 20671. 

[22]Id. at 20672. 

[23]United States v. Clow Water 

Systems, 701 F. Supp. 1345, 

1356 (S.D. Ohio 1988). 

For further information contact: 

The Office of Site Remediation 

Enforcement, in conjunction with the 

Office of Regulatory Enforcement, is 

currently developing a guidance 

document to supersede EPA's 1984 

guidance on the use and issuance of 

administrative orders under RCRA 

Section 7003. The 1984 guidance will 

remain in effect until the new guidance 

is issued. 

If you have questions about this fact 

sheet or the project to develop new § 

7003 guidance, please contact EPA's 

Office of Site Remediation Enforcement 

at (202) 564-5100. 

160 
Fact Sheet 

RCRA CLEANUP REFORMS 

Faster, Focused, More Flexible Cleanups 

United States Environmental Protection Agency

Solid Waste and Emergency Response (5305W)

EPA530-F-99-018

Office of Solid Waste

July 1999

The U.S. Environmental Protection Agency (EPA) is implementing a set of administrative reforms, known as the RCRA 

Cleanup Reforms, to the Resource Conservation and Recovery 

Act (RCRA) Corrective Action program. The reforms are 

designed to achieve faster, more efficient cleanups at RCRA 

sites that treat, store, or dispose of hazardous waste and have 

potential environmental contamination. Although these reforms 

will emphasize flexibility and trying new approaches to clean 

up these facilities, EPA and the states will continue to ensure 

protection of human health and the environment. 

Why Is EPA Doing the 

RCRA Cleanup 

Reforms? 

When the RCRA law and 

regulations governing proper 

hazardous waste management 

and does not contribute to a 

future generation of toxic 

waste sites. However, many 

of these facilities had 

existing soil and groundwater contamination resulting 

from historical waste 

went into effect around 

1980, thousands of facilities became newly subject 

to these federal regulations. This RCRA regulatory structure has helped 

ensure that hazardous 

waste generated from 

ongoing industrial operations is properly managed 

National Cleanup Goals 

(Number of Facilities with Cleanup 

Measures Verified per Year) 

Year 

Current Human 

Exposures 

Controlled 

Groundwater 

Contamination 

Controlled 

1999 172 84 

172 172 172 

2001 172 172 

2002 172 172 

2003 257 172 

2004 257 172 

2005 255 172 

Total 1629* 1200* 

By 2005 (95%) 

*Includes facilities verified prior to 1999 

(70%) 

161 
management practices. The 

RCRA Corrective Action 

program addresses cleanup of 

existing contamination at 

these operating industrial 

facilities. 

Congress, the general public, 

EPA, and state agencies all 

believe the pace and progress 

of RCRA cleanups must be 

increased. In reviewing the 

program, EPA and other 

stakeholders identified several 

factors that were impeding 

timely and cost-effective 

RCRA cleanups. In some 

instances, RCRA cleanups 

have suffered from an emphasis on process steps and a lack 

of clarity in cleanup objectives. An additional complication is that the application of 

certain RCRA requirements, 

such as the land disposal 

restrictions (LDR), minimum 

technological requirements, 

and permitting, can create 

impediments to cleanup. 

What Are the RCRA 

Cleanup Reforms? 

The RCRA Cleanup Reforms 

are EPA's comprehensive 

effort to address the key 

impediments to cleanups, 

maximize program flexibility, 

and spur progress toward a set 

of ambitious national cleanup 

goals. The national cleanup 

goals focus on 1,712 RCRA 

facilities identified by EPA 

and the states warranting 

attention over the next several 

years because of the potential 

for unacceptable exposure to 

pollutants and/or for groundwater contamination. The 

goals, set by EPA under the 

Government Performance and 

Results Act (GPRA), are that 

by 2005, the states and EPA 

will verify and document that 

95 percent of these 1,712 

RCRA facilities will have 

"current human exposures 

under control," and 70 percent 

of these facilities will have 

"migration of contaminated 

groundwater under control." 

To ensure that these ambitious 

goals are achieved, the RCRA 

Cleanup Reforms outline 

aggressive national cleanup 

goals for each of the next 

several years. Implementation 

of the proposed reforms will 

help us achieve the national 

RCRA cleanup goals. Specifically, the RCRA Cleanup 

Reforms will: 

162 
Fact Sheet

• Provide new results-oriented 

cleanup guidance with clear 

objectives. 

• Foster maximum use of 

program flexibility and 

practical approaches through 

training, outreach, and new 

uses of enforcement tools. 

• Enhance community 

involvement including greater 

public access to information on 

cleanup progress. 

These reforms are described 

in more detail at the end of 

this fact sheet. The reform 

efforts are intended to build 

on actions taken by EPA and 

the states in recent years to 

accelerate cleanups, such as: 

• The May 1, 1996, Advance 

Notice of Proposed Rulemaking 

(ANPR, 61 FR 19432) which 

contains the Agency's latest 

guidance for the corrective 

action program and identifies a 

number of flexible cleanup 

approaches. 

• Recent promulgation of the the 

Hazardous Remediation Waste 

Management Requirements 

("HWIR-Media," 63 FR 65874, 

November 30, 1998) which, 

among other things, create 

streamlined RCRA permits for 

cleanup wastes, release 

"cleanup only" facilities from 

requirement to conduct facilitywide corrective action, and 

allow for temporary "staging 

piles" that have flexible design 

and operating requirements. 

• Recent promulgation of the 

Post-Closure Regulation (63 FR 

56710, October 22, 1998) 

which provides flexibility to 

EPA and authorized states by 

removing the requirement that 

interim status facilities obtain a 

permit for the post-closure care 

of a waste management unit 

when other enforcement 

documents are used, and 

harmonizing the sometimes 

duplicative closure and 

corrective action requirements. 

• The Land Disposal Restrictions 

Standards for Contaminated 

Soils (63 FR 28617, May 26, 

1998) which better tailor 

RCRA's LDRs to contaminated 

soils managed during cleanups. 

How Will the Success of 

the Reforms Be 

Measured? 

While the ultimate goal of 

RCRA Corrective Action is to 

achieve completed cleanups, 

we will measure the near-term 

success of the program and 

reforms against the GPRA 

goals and annual cleanup 

targets for verifying that 

current human exposures are 

under control and migration 

of contaminated groundwater 

163 
is under control (see table on 

preceding page). Measuring 

and recording our progress 

toward these goals will be a 

top priority for EPA and the 

states over the next several 

years. 

How Will EPA Involve 

Stakeholders In the 

Reforms? 

We will provide periodic 

updates on the RCRA 

Cleanup Reforms and solicit 

input from stakeholders 

through several means including focus meetings, Federal 

Register notices, the new 

RCRA Corrective Action 

newsletter, Internet postings, 

and press releases. EPA seeks 

continuous feedback from all 

stakeholders on the need for 

additional reforms beyond 

those already underway. 

While the Agency values and 

appreciates the feedback and 

interest of all stakeholders, 

limited resources will not 

allow us to respond individually to those who provide 

input on the RCRA Cleanup 

Reforms. All input will be 

seriously considered by EPA, 

however. Based on stakeholder input and our ongoing 

assessment of the program, 

we will continue to refine the 

RCRA Cleanup Reforms, add 

reforms as needed, and communicate program changes 

including those resulting from 

stakeholder input. 

For further information contact: 

the RCRA Hotline at 800-424-9346. You 

may also e-mail your questions via our 

Web site at 

http://www.epa.gov/epaoswer/hotline/ 

index.htm. 

If you would like to provide written 

feedback on the Reforms, please mail 

them to the RCRA Information Center 

(5305W), USEPA, 401 M St., SW, 

Washington, DC 20460 or, e-mail to 

rcra-docket@epa.gov. Please include the 

following number on all 

correspondence, written or e-mailed, to 

the RCRA Information Center: 

F-1999-CURA-FFFFF. 

The RCRA Corrective 

Action program is run 

jointly by EPA and the 

states, with 33 states and 

territories authorized to 

implement the program. 

Corrective action is conducted under RCRA permits, orders and other 

approaches. 

164 
Fact Sheet 

RCRA Cleanup Reforms 

EPA is Implementing the following reforms to help streamline 

RCRA cleanups and meet the national cleanup goals 

I. Provide new resultsoriented cleanup guidance 

with clear objectives 

EPA will issue a Federal 

Register notice concerning 

the operating guidance for 

the corrective action 

program. EPA also will issue 

several guidance documents 

to emphasize use of 

flexibility in the corrective 

action process, consistent 

measures for determining 

when a site has met 

corrective action goals, and 

to provide a more consistent 

basis for groundwater use 

decisions. 

a. Notice Concerning 1990 

Subparr S Proposal 

In an upcoming Federal 

Register notice, EPA plans to 

announce its intention not to 

take final action on most of 

the provisions of the July 27, 

1990, proposed Subpart S 

rule. Provisions of Subpart S 

which have been finalized 

(e.g., Corrective Action 

Management Units) will 

remain in effect. This notice 

is intended to eliminate 

uncertainty for states and 

owner/operators created by 

the potential promulgation 

of detailed federal regulations, thereby clearing the 

way for implementation of 

more flexible corrective 

action approaches. In the 

notice, EPA plans to clarify 

that the Agency does not 

intend to finalize a processoriented corrective action 

approach, and to confirm that 

the 1996 Advanced Notice of 

Proposed Rulemaking 

remains the primary corrective action program 

guidance. 

b. Corrective Action Guidance 

1. Environmental Indicators 

Guidance and Implementation 

The two corrective action 

Environmental IndicatorsCurrent Human Exposures 

under Control and Migration 

of Contaminated Groundwater under Control-are 

measures of program 

progress and are being used 

to meet the goals set under 

the Government Performance and Results Act. This 

guidance, issued in February 

1999, describes how to 

determine if these measures 

have been met. 

These Environmental Indicators are designed to aid site 

decision makers by clearly 

showing where risk reduction is necessary, thereby 

helping regulators and 

165 
facility owner/operators 

reach agreement earlier on 

stabilization measures or 

cleanup remedies that must 

be implemented. Focusing 

on the Environmental 

Indicators should also help 

reduce delays in the review 

of cleanup work plans and 

allow owner/operators and 

regulators to concentrate on 

those problems that potentially pose significant risks. 

2.Results-Based Approaches 

for RCRA Corrective Action 

This guidance will stress that 

results-based approaches 

which emphasize outcomes 

and eliminate unnecessary 

process steps, should be a 

significant part of state/ 

regional corrective action 

programs in order to meet the 

GPRA goals and to move 

facilities toward the longerterm goal of final facility 

cleanup. Results-based 

approaches include setting 

cleanup goals, providing 

procedural flexibility in how 

goals are met, inviting 

innovative technical 

approaches, focusing data 

collection, and letting owner/ 

operators undertake cleanup 

action with reduced Agency 

oversight, where appropriate. 

Under such approaches, 

owner/operators focus on 

environmental results and the 

most technologically efficient means of achieving them 

while still being held fully 

accountable. 

3. Corrective Action Completion Guidance 

This guidance will discuss 

how to document completion 

of corrective action at 

facilities. It will address: 

termination of permits and 

interim status where 

corrective action is complete; 

how to determine that 

corrective action is complete 

at part of a facility; and the 

importance of public 

involvement in corrective 

action. This guidance will 

provide for a more predictable completion process 

and provide facility owner/ 

operators with reasonable 

assurance that regulatory 

activities can be completed at 

their facility. 

4. The Role of Groundwater 

Use in RCRA Corrective 

Action 

This guidance is intended to 

provide more certainty about 

cleanup objectives and 

expectations with respect to 

groundwater remediarion. It 

will include recommendations on how to account for 

current and reasonably 

expected uses of groundwater when imple-menting 

interim and final RCRA 

corrective action remedies. 

166 
Fact Sheet

II. Foster Maximum Use of 

Program Flexibility and 

Practical Approaches 

throughTraining, Outreach, And New Uses of 

Enforcement Tools 

Through outreach and 

training, EPA will encourage 

maximum appropriate use of 

the existing flexibility in the 

corrective action program 

and prompt implementation 

of recent rules offering 

regulatory flexibility. 

a. Prompt Implementation of 

the HWIR-Media and PostClosure Rules 

EPA will strongly encourage 

states to expeditiously incorporate the Hazardous 

Remediation Waste Management Requirements (HWIRMedia) and Post-Closure 

regulations into their 

programs. As more states 

adopt and implement the 

flexibility in the HWIR 

Media rule, Post Closure 

rule, and the alternative soil 

treatment standards promulgated under LDR Phase 

IV, impediments to cleanup 

will be reduced. This is 

because these rules limit the 

applicability in certain 

cleanup situations of some 

RCRA requirements such as 

land disposal restrictions, 

minimum technological 

requirements, and permitting, or provide alternative 

requirements more tailored 

to cleanup situations. 

b. Maximize Practical 

Approaches and Use All 

Appropriate Authorities to 

Expedite Cleanup 

The national EPA program 

office will reach out to the 

EPA regions, states, and 

external stakeholders to 

emphasize the importance of 

environmental results in the 

corrective action program. 

EPA will place a priority on 

authorizing additional states 

to implement corrective 

action or enhancing work 

sharing arrangements with 

states that are not authorized 

for the program. With the 

RCRA Cleanup Reforms we 

hope to develop a new 

atmosphere of partnership 

and cooperation among 

regulatory authorities, 

industry, and stakeholders 

We will encourage regulators 

to use a broad spectrum of 

approaches to expedite 

corrective action and achieve 

GPRA goals. These 

approaches include new uses 

of enforcement tools to 

create incentives for cleanup 

at facilities with cooperative 

owners as well as to compel 

cleanups at facilities where 

collaborative approaches 

have not yielded results. 

167 
c. Provide Comprehensive 

Training on Successful 

Cleanup Approaches 

EPA has launched a 

comprehensive training 

effort on Results-Based 

Corrective Action, which 

features a three-day 

workshop offered to EPA 

Regions and states in 1999 

and 2000. An Internet 

version of this training is also 

being developed for release. 

The training will emphasize 

to corrective action 

regulators the flexibility in 

existing policies and 

regulations. EPA and State 

regulators will learn from 

their peers about innovative, 

successful approaches that 

are speeding cleanups now at 

corrective action sites. The 

training emphasizes using a 

Conceptual Site Model and 

Environmental Indicators to 

help focus corrective action 

activity at sites. This 

comprehensive training 

effort will help EPA and 

State regulators make 

maximum use of the 

flexibility inherent in the 

corrective action program 

and to adopt more 

streamlined approaches for 

accelerating cleanups. 

III. Enhance Community 

Involvement Including, 

Greater Public Access to 

Information on Cleanup 

Progress 

a. Emphasize Public Involvement in RCRA Cleanups 

Some of the clear benefits of 

meaningful public involvement include: letting the 

public know from the onset 

that their opinions are valued 

and can influence decision 

making; learning from the 

public about past environmental problems associated 

with the facility; gaining an 

understanding of current as 

well as future land use plans; 

and avoiding delays which 

can arise late in the remedy 

selection process when the 

public has not been 

adequately engaged. 

EPA will continue to 

emphasize the importance of 

meaningful public involvement throughout RCRA 

cleanups. EPA's commitment 

to meaningful public 

involvement was described 

in the 1996 Advance Notice 

of Proposed Rulemaking and 

is part of the central theme 

of effective communication 

that is interwoven throughout 

the corrective action training 

effort. In addition, public 

involvement is the focus of 

the RCRA Public Participation Training which is now 

under development and will 

be offered to regions and 

states. EPA will also convene 

workshops with stakeholders 

later this year. Through these 

workshops we hope to better 

168 
Fact Sheet

understand the public's 

concerns as well as gather 

suggestions for further 

improvements to the corrective action program. 

b. Provide Detailed Information on Cleanup Progress 

EPA will post information on 

cleanup progress for 

individual facilities on the 

Internet. With this information, we hope to generate 

greater public interest and 

awareness in corrective 

action at individual facilities, 

thereby enhancing the ability 

of the community to become 

more involved in decisions 

about the cleanup. This 

information will allow stakeholders to monitor progress 

at facilities in their area as 

well as overall progress in the 

corrective action program. 

Information is available at: 

www.epa.gov/epaoswer/ 

osw/cleanup.htm. 

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170
Fact Sheet 

RCRA CLEANUP REFORMS 

Reforms II: Fostering Creative Solutions 

United States Environmental Protection Agency

Solid Waste and Emergency Response (5305W)

EPA530-F-01-001

Office of Solid Waste

January 2001

www.epa.gov/osw

The U.S. Environmental Protection Agency (EPA) is implementing a second set of administrative reforms to accelerate the 

cleanup of hazardous waste facilities regulated under the 

Resource Conservation and Recovery Act (RCRA). EPA's 1999 

Reforms promoted faster, focused, more flexible cleanups. The 

2001 Reforms reinforce and build upon the 1999 Reforms and 

will pilot innovative approaches, accelerate changes in culture, 

connect communities to cleanup, and capitalize on redevelopment potential, while maintaining protection of human health 

and the environment. 

Why Is EPA Reforming the 

RCRA Corrective Action 

Program? 

The goals for the RCRA 

Corrective Action program 

remain very challenging. To 

more effectively meet these 

goals and speed up the pace of 

cleanups, EPA introduced 

RCRA Cleanup Reforms in 

1999 and is implementing 

additional Reforms in 2001. 

The 1999 and 2001 Reforms 

build upon actions taken by 

EPA and the states in recent 

years to accelerate cleanups. 

EPA believes that the 1999 

Reforms remain central to 

successful implementation of 

the program. The 1999 Reforms were designed to: 

• Focus the program more 

effectively on achievement of 

environmental results, rather 

than fulfillment of unnecessary 

steps in a bureaucratic process; 

• Foster maximum use of 

program flexibility and 

practical approaches to achieve 

program goals; 

• Enhance public access to 

cleanup information and 

improve opportunity for public 

involvement in the cleanup 

process. 

171 
The 1999 Reforms set the 

near-term focus of the program on attainment of the two 

Environmental Indicators and 

established an environment 

for program implementors to 

be innovative and resultsoriented. The 1999 Reforms 

have successfully led the 

program toward faster, focused, more flexible cleanups. 

An example of progress since 

1997 is the increase in the 

number of RCRA cleanup 

facilities meeting both Environmental Indicatorse, (from 

47 to 504). 

In 2000, EPA held a series of 

meetings with program 

implementors and stakeholders, including representatives 

from tribes, federal and state 

agencies, regulated industry, 

and environmental and community groups, to discuss 

program impediments, successful approaches and ideas 

for 2001 Cleanup Reforms. 

Central ideas that emerged 

include the importance of: (1) 

reinforcing and building upon 

the 1999 Reforms; (2) empowering program 

implementors to try new 

approaches at the site level; 

and (3) using frequent, informal communication throughout the cleanup process. 

What Are the Goals 

of the RCRA 

Corrective Action 

Program? 

EPA has established two 

near-term goals, termed 

"Environmental Indicators," for the RCRA Corrective Action program. 

These goals, developed 

under the Government 

Performance and Results 

Act (GPRA), are that by 

2005, the states and EPA 

will verify and document 

that 95 percent of the 

1,714 RCRA cleanup facilities under GPRA focus 

will have "current human 

exposures under control," 

and 70 percent of these facilities will have "migration of contaminated 

groundwater under control." The long-term goal 

of the program is to 

achieve final cleanup at all 

RCRA corrective action 

facilities. 

172 
Fact Sheet

What Are the RCRA 

Cleanup Reforms of 

2001? 

The RCRA Cleanup Reforms 

of 2001 highlight those 

activities that EPA believes 

would best accelerate program 

progress and foster creative 

solutions. The 2001 Reforms 

reflect the ideas EPA heard 

from program implementors 

and stakeholders and introduce new initiatives to reinforce and build upon the 1999 

Reforms. Specifically, the 

2001 Reforms will: 

• Pilot innovative approaches; 

• Accelerate changes in culture; 

• Connect communities to 

cleanups; 

• Capitalize on redevelopment 

potential. 

The 2001 Reforms include 

just some of the innovative 

approaches that have been 

identified by program 

implementors and stakeholders. EPA intends to continue 

work in other areas critical to 

meeting program goals. In 

particular, we seek to: continue a dialogue with interested parties on groundwater 

cleanup and other issues 

relating to final cleanup; 

provide guidance tailored to 

cleanup at facilities with 

limited resources to pay for 

cleanup; and, continue to 

work with federally-owned 

facilities to help them meet 

their Environmental Indicator 

goals. Similarly, we encourage program implementors 

and stakeholders to use 

approaches that improve the 

program yet are not specifically included in the RCRA 

Cleanup Reforms. 

I. Pilot innovative 

approaches. 

The RCRA Cleanup Reforms 

Pilot Program will support 

state and EPA Regional 

Offices in their efforts to use 

innovative, results-orientated 

and protective approaches to 

speed achievement of Environmental Indicator goals and 

final cleanup. Stakeholders 

are encouraged to contact 

state and EPA Regional 

Offices with their pilot ideas. 

EPA has set a target of 25 

pilot projects to be launched 

in 2001. EPA expects at least 

one pilot project in each EPA 

Region, administered by the 

state or EPA. EPA will showcase pilot projects to share 

173 
successes and lessons learned 

and to promote use of similar 

approaches at other facilities. 

EPA recommends that stakeholders consider pilot projects 

in one or more areas. Examples include pilots that: 

• Achieve program goals most 

effectively at companies with 

multiple facilities; 

• Improve stakeholder 

involvement and 

communication to resolve 

issues where cleanup progress 

is slow; 

• Use site characterization 

technologies or strategies that 

efficiently assess 

Environmental Indicators; 

• Enhance the use of protective 

and accountable state nonRCRA Cleanup programs to 

achieve program goals; 

• Establish EPA Regional or state 

“corrective action expediters” 

to focus on cleanups that are 

stalled or delayed; 

• Expedite achievement of 

program goals at federallyowned facilities; 

• Use Superfund or emergency 

authorities at RCRA sites for 

bankrupt or unwilling facilities. 

II. Accelerate changes in 

culture. 

EPA will help program 

What is the RCRA 

Corrective Action 

Program? 

In 1980, when the RCRA law 

and regulations went into effect, 

thousands of facilities became 

subject to hazardous waste 

management regulations. These 

regulations helped ensure that 

hazardous waste generated 

from ongoing industrial operations is properly managed and 

does not contribute to a future 

generation of toxic waste sites. 

However, many of these facilities had soil and groundwater 

contamination resulting from 

their waste management practices prior to 1980. The RCRA 

Corrective Action program addresses cleanup of past and 

present contamination at these 

operating industrial facilities. 

Who Runs the RCRA Corrective Action Program? 

The RCRA Corrective Action 

program is run by both EPA and 

the states, with 38 states and territories authorized to implement 

the program. Corrective action 

is conducted under RCRA permits, orders and other approaches. 

implementors and stakeholders accelerate changes in the 

culture in which they imple174 
Fact Sheet

ment the program by: focusing on results over process; 

encouraging frequent, informal communication among 

stakeholders; encouraging 

partnerships in training; 

promoting methods of information exchange; and, using 

new approaches to meet 

Environmental Indicator and 

long-term cleanup goals. EPA 

will: 

• Promote nationwide dialogue 

among program implementors 

and stakeholders on RCRA 

cleanups. EPA Regional Offices 

will work with states in an 

effort to hold at least one 

meeting in 2001 in each EPA 

Region, open to all stakeholders 

who wish to interact, provide 

input, or learn more about the 

RCRA Corrective Action 

program. Discussion topics 

could cover local, regional or 

national topics relevant to 

corrective action. 

• Conduct targeted training in 

partnership with program 

implementors and stakeholders. 

EPA will work with interested 

parties to deliver targeted 

training, depending upon the 

needs of those requesting the 

training and available 

resources. Training topics could 

cover, for example: innovative 

technical and administrative 

approaches to cleanup; success 

stories and lessons learned from 

Focus on Results 

The RCRA Cleanup Reforms foster creative, practical, results-based approaches to corrective action. In the field, this 

means: 

• Providing tailored oversight. 

Eliminate administrative or 

technical steps where not 

needed to assure effective 

performance. 

• Using holistic approaches. 

Evaluate facilities for overall 

risk and apply appropriate 

facility-wide corrective 

action measures. 

• Exercising procedural flexibility. Emphasize results 

over mechanistic process 

steps and eliminate unproductive activities. 

• Setting performance standards, Establish clear protective standards the owner/ 

operator must fulfill to 

complete corrective action. 

• Targeting data collection. 

Examine actual conditions at 

each facility to design data 

requirements as needed to 

support corrective action 

decisions. 

implementation of the 1999 

Cleanup Reforms; Corrective 

Action program basics; and use 

175 
of performance-based 

approaches to corrective action. 

• Use web-based communication 

to share successes and lessons 

learned and promote innovative 

approaches. EPA will support 

the establishment of a webbased interactive tool to 

promote sharing of successes 

and lessons learned and to 

provide for frequent exchange 

of ideas among all stakeholders 

on any corrective action topic, 

including those that are 

technical, policy-oriented or 

site-specific. 

• Overcome barriers to achieving 

Environmental Indicators. EPA 

will clarify the relationship 

between Environmental 

Indicators and final cleanups 

and how Environmental 

Indicators can be met within the 

context of existing orders and 

permits. EPA will answer 

"Frequently Asked Questions" 

about Environmental 

Indicators, and issue technical 

guidance on ways to assess the 

impacts of contaminated 

groundwater on surface water 

and indoor air quality. In 

addition, EPA will demonstrate 

new uses of enforcement tools 

to achieve Environmental 

Indicators. 

III. Connect communities 

to cleanups. 

EPA will provide the public 

with more effective access to 

cleanup information. EPA 

seeks to increase public 

interest in and awareness of 

cleanup activities, and to 

further enhance the public's 

ability to become more involved in decisions about 

cleanups in communities. EPA 

will: 

• Clarify principles and 

expectations for public 

involvement in corrective action 

cleanups. EPA will set out 

general principles and 

expectations for providing the 

public with the opportunity to 

become involved at corrective 

action sites. EPA also will share 

examples of successful public 

involvement approaches that 

have been used at RCRA 

cleanup sites and lessons 

learned. 

• Increase support of Technical 

Outreach Services for 

Communities (TOSC). The 

TOSC program provides 

communities with technical and 

educational assistance from 

universities on issues associated 

with cleanup of hazardous sites. 

EPA will provide resources to 

the TOSC program for 

community involvement at 

RCRA cleanup sites and 

advertise the availability of this 

program. 

• Place Environmental Indicator 

evaluation forms and cleanup 

summaries on EPA web sites. 

176 
Fact Sheet

EPA will place Environmental 

Indicator evaluation forms and 

summaries of cleanup activities 

of 1,714 RCRA facilities on the 

web sites of EPA Regional 

Offices. The evaluation forms 

and summaries will provide 

readily available information on 

the status of cleanup at these 

sites. 

• Publicize and promote the use 

of readily accessible cleanup 

information sources. EPA will 

produce and distribute a 

pamphlet for the general public 

that explains how to access 

RCRA Corrective Action 

program information and sitespecific cleanup information. 

IV. Capitalize on 

redevelopment potential. 

EPA encourages program 

implementors and stakeholders to capitalize on the redevelopment potential of RCRA 

cleanup sites. Many of these 

sites are located in areas that 

are attractive for redevelopment and are poised for 

community revitalization. 

These factors can motivate 

interested parties to pursue an 

expedited cleanup, sometimes 

with additional resources. 

EPA will: 

• Initiate Additional R CRA 

Brownfields Pilots. EPA will 

launch 4-6 additional RCRA 

Brownfields pilot projects in 

2001. These pilots will be 

designed to showcase the 

flexibility of RCRA and the use 

of redevelopment potential to 

expedite or enhance cleanups. 

Pilot applicants could be 

program implementors or 

stakeholders. Pilot participants 

also benefit from RCRA 

brownfields expertise. Limited 

funding may become available 

for EPA to conduct public 

meetings and related activities. 

• Initiate the Targeted Site Effort 

(TSE) Program to spur cleanup 

at RCRA sites with significant 

redevelopment/reuse potential. 

EPA will ask each Regional 

Office to identify two sites for 

the TSE in 2001. The TSE 

program will apply to sites that 

have significant redevelopment/ 

reuse potential, and require a 

limited amount of extra EPA 

support to help spur cleanup. 

The TSE program will provide 

participants with focused 

attention and access to RCRA 

brownfields expertise. Limited 

funding may be available for 

EPA to conduct public meetings 

and related activities. 

• Provide training and outreach 

to program implementors on 

using redevelopment potential 

to meet program goals. EPA 

will provide training and 

outreach to program 

implementors and stakeholders 

to promote the environmental 

and community benefits that 

177 
can be gained by integrating 

brownfields redevelopment 

opportiunities and RCRA 

facility cleanups. 

• Promote cleanup and 

redevelopment with 

R CRA "Comfort/Status" 

Letters. " Comfort/status" 

letters provide information 

regarding EPA's intent to 

exercise its RCRA corrective 

action response and 

enforcement authorities at a 

cleanup site. EPA will issue 

examples of letters that have 

been used to spur cleanup and 

redevelopment at RCRA 

facilities. 

How Will EPA Measure 

the Results of the 

Reforms? 

Measuring and recording the 

results of the RCRA Cleanup 

Reforms is a priority for EPA 

and the states to ensure 

continued improvement of the 

Corrective Action program. 

EPA will measure progress in 

putting the reforms into 

practice. EPA recognizes 

program implementors are 

using new approaches that 

may or may not be highlighted in the Cleanup Reforms, and will measure 

progress under these approaches as well. While the 

ultimate goal of the Corrective 

Action program is to achieve 

final cleanups, EPA will 

continue to measure the nearterm success of the program 

against its Environmental 

Indicator goals for controlling 

human exposure and migration of contaminated groundwater. 

How Will EPA Involve 

Stakeholders in 

Implementing the 

Reforms? 

EPA will provide periodic 

updates on the RCRA 

Cleanup Reforms and solicit 

input from stakeholders 

through several means, including focus meetings, 

Federal Register notices, the 

RCRA Corrective Action 

Newsletter, Internet postings, 

and press releases. 

EPA seeks continuous feedback from all stakeholders on 

the need for additional reforms beyond those already 

underway. EPA values and 

appreciates the feedback and 

interest of all stakeholders. 

However, limited resources 

may not allow us to respond 

individually. Based on stakeholder input and our ongoing 

assessment of the program, 

178 
Fact Sheet

we will continue to refine and

add to the RCRA Cleanup

Reforms, as needed, and will

communicate program

changes.

If you would like to provide

written comments on the

RCRA Cleanup Reforms,

please mail your comments

to:

RCRA Information Center

(5305W),U.S. Environmental

Protection Agenry, Ariel Rios

Building, 1200 Pennsylvania

Avenue, NW, Washington,

DC, 20460-0002, or send an

email to the RCRA docket at

rcra-docket@epa.gov. Please

include the following number

on all correspondence, written 

or e-mailed, to the RCRA 

Information Center: F-2001-

CRII-FFFFF. 

For further information on corrective 

action cleanups, please visit state and 

EPA Regional web sites, which can be 

linked via the EPA corrective action web 

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

correctiveaction. The EPA corrective 

action web site has the latest and more 

detailed information on the RCRA 

Cleanup Reforms. 

If you have questions regarding the 

RCRA Cleanup Reforms, please call the 

RCRA Hotline at 800-424-9346 or TDD 

800-553-7672, or visit their web site at 

http://www.epa.gov/epaoswer/hotline/ 

index.htm. 

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180
Fact Sheet

Environmental Fact Sheet 

TREATMENT STANDARDS SET FOR TOXICITY 

CHARACTERISTIC (TC) METAL WASTES, MINERAL 

PROCESSING WASTES, AND CONTAMINATED SOIL 

United States Environmental Protection Agency

Solid Waste and Emergency Response (5305W)

EPA530-F-98-010

Office of Solid Waste

April 1998

www.epa.gov/osw

The Environmental Protection Agency (EPA) is publishing 

regulatory controls that encourage the safe recycling and 

disposal of hazardous metal waste and newly identified waste 

from mineral processing. 

Background 

The widespread practice of disposing of hazardous waste in 

units located directly on the land has been regulated by EPA's 

Land Disposal Restrictions (LDR) program for many years. A 

major part of the LDR program is to adequately protect public 

health and safety by establishing treatment standards for 

hazardous wastes before they can be disposed of in land disposal units. These treatment standards either specify that the 

waste be treated by a specified technology, or that they be 

treated by any technology as long as the concentration of 

hazardous constituents is below a certain level. Universal 

Treatment Standards specify the concentration levels for hazardous constituents. In addition to setting new treatment standards, another continuing task of the EPA is to better define 

which industrial materials are wastes, thus subject to regulation, and which should be excluded from regulation. 

Action 

LDR treatment standards are established for metal-bearing 

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182
APPENDIX C

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184
Report on U.S. EPA’s Prospective 

Purchaser Agreements and 

Comfort/Status Letters: 

How Effective Are They? 

September 29, 2000 

Background 

To quell the growing concern that some parties may incur 

Superfund liability although they did not cause the hazardous 

waste contamination, EPA developed two mechanisms - PPAs 

and comfort/status letters. 

Over the years, EPA had heard that these tools were very 

effective in allaying those concerns although the Agencies had 

not collected data. 

In order to substantiate the anecdotal claims that PPAs and 

comfort/status letters enabled parties to reuse formerly contaminated property, OSRE undertook a survey analysis of 

regional staff and private parties. OSRE used the surveys to 

collect general information on the use of these tools, obtain 

specific data on property cleanup and reuse, and determine the 

effectiveness of these tools in meeting the needs of private 

parties and regional staff to cleanup and reuse contaminated 

property. 

OSRE evaluated the survey responses according to the following criteria: 

• How instrumental PPAs and comfort/status letters have been in 

accelerating site cleanup and revitalization of blighted properties; 

• How effective PPAs and comfort/status letters have been in meeting the 

needs of the requesters;The timeliness of the PPA and comfort/status 

letter process, and whether they have satisfied the affected parties; 

185 
• What affected parties consider 

the most important elements of 

PPAs or comfort/status letters; 

• The types of property cleanups 

and reuse situations in which 

PPAs or comfort/status letters 

have been most useful; 

• The problems parties have 

encountered while going 

through the PPA or comfort/ 

status letter process and 

recommendations for addressing 

those problems; and, 

• Alternatives to PPAs and 

comfort/status letters. 

Survey Results 

Comfort/Status Letters 

Regional and private party 

respondents were given the 

opportunity to provide comments on their experiences in 

negotiating a comfort/status 

letter and provide suggestions 

for improving the process. 

The majority of private parties 

were satisfied with EPA’s 

comfort/status letter process. 

The following is a summation 

of the most consistent and 

significant suggestions offered 

by regional and private party 

respondents. 

Benefits: 

• Comfort/status letters, enable 

the return of properties to more 

environmentally beneficial uses. 

• Comfort/status letters help local 

communities revive their 

neighborhoods. 

• Comfort/status letters enhance the 

economic viability of reuse projects. 

• Comfort/status letters are a relatively 

fast and inexpensive tool to facilitate 

brownfield redevelopment. 

Improvements: 

• Accelerate the comfort/status letter 

process. 

• Ensure that EPA and private parties 

explore other options that could 

alleviate concerns over Federal 

Superfund liability. 

• Strengthen assurance and reduce 

caveats in comfort/status letters. 

• Archive sites that are eligible for 

comfort/status letters whenever 

possible. 

The comfort/status letter survey 

findings indicate that regional 

offices are effectively implementing the policy and that the letters 

have facilitated property reuse. 

Respondents also reported that 

comfort/status letters, for the most 

part, are relatively easy to obtain. 

EPA has already made progress 

towards facilitating property reuse 

and addressing some of the challenges presented by survey respondents. 

186 
Survey Results 

PPAs 

The majority of private parties 

were satisfied with EPA’s PPA 

process. Although respondents provided relatively few 

comments, there were consistent themes that underscore 

the benefits and areas that 

EPA had already identified for 

improvement. Other factors 

also came to light. For example, 

the more fully characterized a 

site, the faster EPA and 

purchasers finalize the PPA. 

Benefits: 

• PPAs help local communities 

revive their neighborhoods. 

• PPAs support diverse uses at 

properties of varying sizes. 

• PPAs enhance the economic 

viability of reuse projects. 

• PPAs allow property reuse and 

site cleanup to coincide. 

• PPAs preserve the Superfund 

Trust Fund, thus allowing EPA 

to clean up other hazardous 

waste sites. 

Improvements: 

• Streamline the PPA process. 

• Ensure that EPA and private 

parties explore other options 

that could alleviate concerns 

over Federal Superfund 

liability. 

• Provide guidelines on 

appropriate consideration. 

• Improve communication with 

states, local governments, and 

local communities. 

The PPA survey findings 

indicate that EPA is effectively implementing its PPA 

guidance to encourage and 

facilitate the cleanup and 

reuse of Superfund sites and 

that the number of successful 

agreements has increased 

significantly in recent years. 

Respondents also reported 

that EPA, for the most part, 

has been responsive to purchasers in meeting their needs 

in a timely manner. At the 

same time, the respondents 

commented that EPA still 

could improve the process of 

obtaining PPAs. As outlined 

on pages 50-51 of the Final 

Report, EPA has already made 

progress towards its goals of 

improving the PPA process 

and addressing the difficulties 

private parties encountered 

while obtaining a PPA. 

For further information contact: 

Elisabeth Freed - (202) 564-5117

Office of Site Remediation Enforcement

187 
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188
APPENDIX D

189
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190
Sample Comfort/Status Letters 

Sample No Previous Superfund Interest Letter 

Addressee 

Re: [Insert name or description of property/site] 

Dear [Insert name of party]: 

I am writing in response to your letter dated --/--/-- concerning the property referenced 

above. My response is based upon the facts presently known to the U.S. Environmental 

Protection Agency (EPA) and is provided solely for informational purposes. 

The federal Superfund Program, established to cleanup hazardous waste sites, is administered by EPA in cooperation with individual states and local and tribal governments. Sites are 

discovered by citizens, businesses, and local, state or federal agencies. When a potential 

hazardous waste site is reported, EPA records the available information in its database, the 

Comprehensive Environmental Response, Compensation, and Liability Information System 

(CERCLIS). [NOTE: if a region practices pre-CERCLIS screening procedures, please include 

language indicating that the procedures exists, whether or not the property is in the process of 

being "pre-screened", and what this means to the inquirer. Adjustments may be needed to the 

sample language contained in this letter.] The fact that a site is listed in CERCLIS, however, 

does not mean that an EPA response action will occur at the site or that ownership or operation 

of the site is restricted or may be associated with liability. The fact that a property is not listed 

in CERCLIS does mean that EPA is not currently planning to take any action under the federal 

Superfund program to evaluate the site for inclusion on the National Priorities List (NPL) or to 

conduct removal or remediation activities. 

The above-referenced property was not identified in a search of the active and archived 

records in the CERCLIS database. Please note that its absence from CERCLIS does not 

represent a finding that there are no environmental conditions at this property that require 

action or that are being addressed under another federal or state program. The absence of the 

property from CERCLIS means that, at this time, EPA is not aware of any information 

indicating that there has been a release or threat of release of hazardous substances at or from 

the facility that needs to be assessed by the federal Superfund program and that no such 

assessment has been performed by EPA in the past. I encourage you to contact [insert name of 

state or local agency] to determine if they have information regarding the property and its 

environmental condition. [Regions also are encouraged to check with other program offices to 

determine whether EPA is addressing this site under another statute such as RCRA]. 

If you would like more comprehensive information on current or historical CERCLIS data 

or to request an additional search, please contact the National Technical Information Service 

(NTIS), a publishing clearinghouse for government information. The address is: U.S. 

Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161 (telephone: (703) 

487-4650; fax: (703) 321-8547.) CERCLIS information is also avaliable on the Internet at 

http://www.epa.gov/superfund/index.html#Products. Should you have any further questions 

about Superfund, please feel free to contact me at [insert phone number/address.] 

Sincerely, 

Regional Contact 

cc: State contact 

191 
Sample No Current Superfund Interest Letter 

Addressee 

Re: [Insert name or description of property] 

Dear [Insert name of party]: 

I am writing in response to your letter dated --/--/-- concerning the property referenced 

above. My response is based upon the facts presently known to the United States Environmental Protection Agency (EPA) and is provided solely for informational purposes. For the reasons 

stated below, EPA does not presently contemplate additional Superfund action for this property. 

In response to growing concern over health and environmental risks posed by hazardous 

waste sites, Congress enacted the Comprehensive Environmental Response, Compensation, and 

Liability Act of 1980, as amended (CERCLA), establishing the Superfund program to clean up 

these sites. The Superfund program is implemented by EPA in cooperation with individual 

states and local and tribal governments. Sites are discovered by citizens, businesses, and local, 

state, or federal agencies. After a potential hazardous waste site is reported to EPA, the 

available information is recorded in the Comprehensive Environmental Response and Liability 

Information System (CERCLIS), EPA's data management system for Superfund. Sites are 

added to CERCLIS when EPA believes that there may be contamination that warrants action 

under Superfund. 

I. [FOR ARCHIVED SITES] 

If, after an initial investigation, EPA determines that the contamination does not warrant 

Superfund action, or if an appropriate Superfund response action has been completed, EPA will 

archive that site from CERCLIS. This means that EPA believes no further federal response is 

appropriate. Archived sites may be returned to the CERCLIS site inventory if new information 

necessitating further Superfund consideration is discovered. 

EPA has archived the above-referenced property from the CERCLIS site inventory because 

[choose one of the following (a, b, or c) to complete the sentence] 

[a.], following site evaluation activities, EPA determined that either no contamination was 

found or conditions at the property did not warrant further federal Superfund involvement. 

[b.] a federal removal action was completed and no further Superfund action is planned for 

this property. 

[c.] environmental conditions at the property are subject to requirements of [RCRA, UST, 

OPA, etc.], however, no further interest under the federal Superfund program is warranted. For 

further information concerning these requirements, please contact [name and telephone 

number]. 

[Add to previous sentence] EPA, therefore, anticipates no need to take additional Superfund 

enforcement, investigatory, cost recovery, or cleanup action at this archived site unless new 

information warranting further Superfund consideration or conditions not previously known to 

EPA regarding the site are discovered. EPA will maintain a dialogue with the states and will 

continue to refer archived sites to the states for their review and consideration. You may want 

to contact [insert state contact, address and telephone number] for further information. 

II. [FOR PARTIAL OR FULL DELETIONS FROM NPL OR FOR A SITE BOUNDARY SITUATION] 

192 
CERCLIS does not describe sites in precise geographical terms primarily because the 

boundaries of the contamination and available information on those boundaries can be 

expected to change over time. Once enough information regarding the nature and extent 

of the release of the hazardous substances is gathered, EPA can more accurately delineate 

the boundaries of a site. [Choose either (a), (b) or (c)]. 

(a) [If the property was included in a partial deletion from the NPL] 

The above-referenced property [is/appears to be] situated within the [name of NPL site] 

which is included on EPA's list of high priority hazardous waste CERCLIS sites known as 

the National Priorities List (NPL). EPA, however, has determined that no further 

investigatory or cleanup action is appropriate at the property under the federal Superfund 

program. With the [insert State Agency] concurrence, EPA has decided to delete the 

portion of the NPL site which contains the above-referenced property in accordance with 

the Agency's A Procedures for Partial Deletions at NPL Sites" (OERR Directive Number 

9320.2-11, August 30, 1996). 

(b) [If the property is contained within the NPL site or is defined as the NPL site and 

the site has been deleted from the NPL] 

The identified property [is/appears to be] [select one: situated within the defined 

geographical borders of the [name of NPL site] or defined as the [name of the NPL site]] 

which is included on EPA's list of high priority hazardous waste CERCLIS sites known as 

the National Priorities List (NPL). EPA, however, has determined that no further 

investigatory or cleanup action is appropriate at the property. In consultation with the 

[insert State Agency], EPA has decided to delete this property from the NPL in accordance 

with "Deletion from the NPL" 40CFR 300.425(e). 

(c) [If the property is not part of the CERCLIS site but is nearby] 

The above-referenced property is located [near or adjacent to] the [name of CERCLIS 

Site]. At this time, [statement as to the status of the site at present time: e.g., preliminary 

assessment, site investigation, removal, remedial investigation or feasibility study is 

underway or is completed]. Based upon available information, the property is not 

presently considered by EPA to be a part of the [name of the CERCLIS site]. 

[Add to end of paragraph (a), (b), or (c)] 

EPA, therefore, anticipates no need to take [any/additional] [Superfund enforcement--

include if PRP search and cost recovery are complete] investigatory or cleanup action at 

this property unless new information warranting further Superfund consideration or 

conditions not previously known to EPA regarding the property are discovered. You may 

want to contact [insert state agency information] for further information. [If appropriate, 

enclose a copy of the fact sheet on the CERCLIS site]. 

III. [IF ADMINISTRATIVE RECORD HAS BEEN COMPILED] 

EPA has compiled an administrative record for the [name of CERCLIS or NPL Site] 

which provides information on the nature and extent of the contamination found at the 

site. This record is available at EPA Region -- and at [location nearby to the site]. 

If you have any additional questions, or wish to discuss this information, please feel 

free to contact [insert EPA contact and address]. 

Sincerely yours, 

Regional Contact 

cc: State contact 

193 
Sample Federal Superfund Interest Letter 

Addressee 

Re: [insert name or description of property/site] [COMMENT1] 

Dear [Insert name of party]: 

I am writing in response to your letter dated --/--/-- concerning the property referenced 

above. My response is based upon the facts presently known to the United States Environmental Protection Agency (EPA) and is provided solely for informational purposes. 

In response to growing concern over health and environmental risks posed by hazardous 

waste sites, Congress passed the Comprehensive Environmental Response Compensation and 

Liability Act (CERCLA) and established the Superfund program to clean up these sites. The 

Superfund program is implemented by EPA in cooperation with individual states and local and 

tribal governments. Sites are discovered by citizens, businesses, and local, state and federal 

agencies. After a potential hazardous waste site is reported to EPA, the site-specific 

information is recorded in the Superfund database, the Comprehensive Environmental 

Response and Liability Information System (CERCLIS). Sites are added to CERCLIS when 

EPA believes that there may be contamination that warrants action under Superfund. 

EPA initially screens a potential hazardous waste site to determine what type of action, if 

any, is necessary. The Superfund program may then perform a preliminary assessment and site 

investigation to determine whether contamination at a property is likely to require a federal 

cleanup response, an evaluation to determine if a short term response action to eliminate or 

reduce contamination is needed, and add the site to EPA's list of high priority hazardous waste 

sites known as the National Priorities List (NPL). 

EPA is examining [and/or addressing] the property referenced above in connection with the 

[insert name of CERCLIS/NPL site] under the authority of CERCLA. [Insert appropriate 

paragraphs from Sections I and/or II below. Use III for requests regarding the applicability of 

a specific policy. Section IV represents the closing paragraph for all the Federal Superfund 

Interest letters]. 

I. STATUS OF THE IDENTIFIED PROPERTY: 

a. The above-referenced property is presently part of [or is] the [insert name of site.] 

[Add paragraph from Section II for further information concerning the site.] 

b. The above-referenced property may be part of the [insert name of site.] [Add 

paragraph from Section II for further information concerning the site.] 

II. STATUS OF EPAACTIVITIES 

a. The site has been placed in the Comprehensive Environmental Response, 

Compensation and Liability Information System ("CERCLIS") site inventory, but no studies or 

investigations have been performed to date. Accordingly, EPA has not developed sufficient 

information relating to the nature and extent of contamination to presently determine whether 

further federal action is appropriate under Superfund. Additionally, EPA has not yet 

determined which properties may be considered part of the site. 

b. A Superfund site evaluation is planned at the [insert name of site] to investigate 

possible contamination, and where it may be located. Accordingly, EPA has not yet determined which properties may be considered part of the [insert name of site.] [Add description 

of site evaluation activity or attach relevant documents, if available.] 

194 
c. A Superfund site evaluation activity is underway at the [insert name of site] to 

investigate possible contamination, and where it may be located. Accordingly, EPA has not yet 

determined which properties may be considered part of the [insert name of site.] [Add 

description of site evaluation activity or attach relevant documents, if available.] 

d. The [insert name of site] has been proposed to [or placed on] the Superfund 

National Priorities List ("NPL"). [Refer to and/or attach Federal Register notice.] The 

description of [insert name of site] contains EPA's preliminary evaluation of which properties 

are affected, although the actual borders of the Superfund site could change based on further 

information regarding the extent of contamination and appropriate remedy. 

e. A Superfund Remedial Investigation/Feasibility Study (RI/FS) is planned at [insert 

name of site.] [Add description of RI/FS and ensuing activities or attach relevant documents, if 

available]. 

f. A Superfund Remedial Investigation/Feasibility Study (RI/FS) is underway at 

[insert name of site.] [Add description of RI/FS and ensuing activities or attach relevant 

documents, if available]. 

g. A Superfund Remedial Investigation/Feasibility Study (RI/FS) has been completed 

at [insert name of site.] [Add description of RI/FS and ensuing activities or attach relevant 

documents, if available]. 

h. EPA is planning a Superfund Remedial Design/Remedial Action (RD/RA) at [insert 

name of site.] [Insert pertinent information such as a description of the ROD and RD/RA, such 

as date of issuance of the ROD, schedule for cleanup; Fund lead or PRP implementation, 

cleanup progress to date; a schedule for future cleanup, especially a final completion date, 

cleanup levels to be achieved, and anticipated future land use of the Site, or attach relevant 

informational documents]. 

i. EPA has commenced a Superfund Remedial Design/Remedial Action (RD/RA) at 

[insert name of site.] [Insert pertinent information such as a description of the ROD and RD/ 

RA, such as date of issuance of the ROD, schedule for cleanup; Fund lead or PRP implementation, cleanup progress to date; a schedule for future cleanup, especially a final completion 

date, cleanup levels to be achieved, and anticipated future land use of the Site, or attach 

relevant informational documents]. 

j. Superfund Remedial Design/Remedial Action (RD/RA) has been completed at 

insert name of site.] [If possible provide information on cleanup achievements, whether it was 

PRP or Fund-lead, etc., or attach relevant informational documents, if available] A Five-year 

Review will [will not] be necessary at [insert name of site.] [Also, describe status with respect 

to deletion from the NPL.] 

k. A removal action is planned at [insert name of site.] [provide information on 

cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene 

Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents, 

if available.] 

l. A removal action is ongoing at [insert name of site.] [provide information on 

cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene 

Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents, 

if available.] 

m. A removal action has been completed at [insert name of site.] [provide information 

on cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene 

Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents, 

if available.] 

195 
III. FOR PARTIES OR SITES COVERED BY AN EPA POLICY/STATUTE/REGULATION 

Dear [Insert name of party]: 

I am writing in response to your letter dated --/--/-- concerning the property referenced 

above. My response is based upon the facts presently known to the United States Environmental Protection Agency (EPA). 

As you may know, the above-referenced property is located within or near the [insert name 

of CERCLIS site.] EPA is currently taking [insert description of any action that EPA is taking 

or plans to take and any contamination problem.] 

[Choose either paragraph [a] or [b]]: 

[a. For situations when a party provides information showing that 1) a project found to be 

in the public interest is hindered or the value of a property is affected by the potential for 

Superfund liability, and 2) there is no other mechanism available to adequately address the 

party's concerns.] 

The [insert policy citation/statutory/regulatory provision], provides that EPA, in an exercise 

of its enforcement discretion, will not take an enforcement action against parties who meet the 

conditions and criteria described in the [insert policy/statute/regulation]. Based upon the 

information currently available to EPA, EPA believes that the [policy/statutory/regulatory 

provision] applies to [you/your] situation. I am enclosing a copy of the [policy/statutory or 

regulatory provision and fact sheet, if appropriate] for your review. 

[b. For situations when a party does not provide information showing that 1) a project 

found to be in the public interest is hindered or the value of a property is affected by the 

potential for Superfund liability, and 2) there is no other mechanism available to adequately 

address the party's concerns, attach the appropriate policy/statutory or regulatory language and 

insert the following language]: 

The [insert policy citation/statutory/regulatory provision], provides that EPA, in an exercise 

of its enforcement discretion, will not take an enforcement action against parties who meet the 

conditions and criteria described in the [insert policy/statute/regulation]. [EPA currently does 

not have enough information available to determine whether the [insert policy/statutory/ 

regulatory citation] applies to your situation OR EPA, based upon the current information 

available, believes that you/your circumstances do not meet the criteria/provisions of the 

[policy/statute/regulation]. I, however, have enclosed a copy of the [policy/statutory or 

regulatory language] for your own review and determination of its applicability to you [or your 

situation]. 

IV. CLOSING PARAGRAPH 

EPA hopes that the above information is useful to you. [Optional--In addition, we have 

included a copy of our latest fact sheet for the (insert name of site.)] Further, we direct your 

attention to the [insert location of site local records repository] at which EPA has placed a 

copy of the Administrative Record for this site. [Include for section III letters only: This letter 

is provided solely for informational purposes and does not provide a release from CERCLA 

liability.] If you have any questions, or wish to discuss this letter, please feel free to contact 

[insert EPA contact and address]. 

Sincerely, 

Regional Contact 

Enclosure 

196 
Sample State Action Letter 

Addressee 

Re: [Insert name or description of site/property] 

Dear [Insert name of party]: 

I am writing in response to your letter dated --/--/-- concerning the property referenced 

above. My response is based upon the facts presently known to the United States Environmental Protection Agency (EPA) and is provided solely for informational purposes. 

The problem of investigating, responding to, and cleaning property contaminated by 

hazardous substances is a complex one. In an effort to maximize resources and ensure timely 

responses, EPA and the states work together in responding to properties posing threats of 

environmental contamination. Although the Comprehensive Environmental Response 

Compensation and Liability Act (CERCLA, also known as "Superfund") is a federal law that 

establishes a federal program, the law also envisions and provides for state involvement at sites 

handled under the Superfund program. CERCLA explicitly describes scenarios under which a 

state may have a significant and prominent role in site activities. 

I. [INSERT THIS SECTION FOR SITES DESIGNATED STATE-LEAD IN CERCLIS] 

The site about which you have inquired, [site name], is a site that falls under the federal 

Superfund program, but has been designated a state-lead. A state-lead designation means that 

although the site remains in EPA's inventory of sites and may be on EPA's list of highest 

priority sites, the National Priorities List (NPL), implementing responsibilities to investigate 

and cleanup that site rest with the state of [insert name of state]. Specifically, [insert name of 

state] is responsible for the day-to-day activities at the site and will ultimately recommend the 

cleanup for the site. EPA's role is to review some of [insert name of state]'s milestone 

documents, if appropriate, provide technical assistance if needed, and, in most cases, approve 

the final cleanup method recommended by the state. The state and EPA work together closely, 

pursuant to the terms of a Memorandum of Agreement (MOA) to ensure that site responses are 

conducted in a timely manner and that interested parties are included in site activities. 

Because EPA's day-to-day role at the [insert name of site] is somewhat limited, you should 

check with the [your state or state's environmental program] for more detailed information on 

site activities. [insert name of state] is best able to provide you with detailed information 

about the site and public documents regarding site activity. [Regions should include the state 

RPM name and number, or at least the state's applicable department name and number]. 

II. [INSERT THIS SECTION FOR SITES DESIGNATED ADEFERRED TO STATE 

AUTHORITIES PURSUANT TO EPA'S SUPERFUND DEFERRAL POLICY] 

The site about which you have inquired, [site name], is a site that falls under the federal 

Superfund program, but for which EPA does not have the day-to-day responsibility. Specifically, the [site name] site is not proposed for or listed on the NPL. EPA has agreed not to 

propose or list the [site name] site on the NPL while the state of [name of state] addresses the 

environmental conditions at the property under its own state authorities. While the [site name] 

cleanup is being conducted, EPA intends to act in accordance with "Guidance on Deferral of 

NPL Listing Determinations While States Oversee Response Actions" (OSWER Dir. 9375.6-

11, May 3, 1995). A copy of this guidance is enclosed for your review and should help you to 

better understand EPA's role and intentions at sites for which activities are deferred to state 

authorities. 

197 
III. [INSERT FOR A SITE DESIGNATED "DEFERRED" THAT NOW HAS BEEN 

ARCHIVED] 

The conditions at the above-referenced property were addressed by [name of state] pursuant 

to EPA's "Guidance on Deferral of NPL Listing Determinations While States Oversee 

Response Actions" (OSWER Dir. 9375.6-11, May 3, 1995). Upon completion of cleanup 

activities at the [site name], the property has been removed from EPA's inventory of hazardous 

waste sites, the Comprehensive Environmental Response, Compensation, and Liability 

Information System (CERCLIS). Consistent with EPA's state deferral guidance, EPA does not 

intend to further consider the property for listing on the NPL [or to take additional Superfund 

enforcement, investigatory, cost recovery, or clean up action at the property] unless EPA 

receives new information about site conditions that warrants reconsideration. 

A copy of EPA's "A Guidance on Deferral of NPL Listing Determinations While States 

Oversee Response Actions" is enclosed for your review, so that you may better understand the 

nature of EPA's role at the [site name]. For detailed information about site activities and 

conditions, you may wish to contact [insert name of state or state's environmental department], 

the agency responsible for overseeing activities on the property. 

IV. [INSERT FOR A SITE ADDRESSED UNDER A STATE VCP THAT HAS AN MOA 

IN PLACE] 

The site about which you have inquired, [site name], is a site contained in EPA's inventory 

of hazardous waste sites, the Comprehensive Environmental Response, Compensation, and 

Liability Information System. The [site name] site is not, however, proposed for or listed on 

EPA's list of highest priority sites, the National Priorities List (NPL). EPA and the state of 

[insert name of state] have agreed, pursuant to a memorandum of agreement (MOA) between 

the two agencies, to place the site under the authorities of [insert name of state]'s Voluntary 

Cleanup Program. For specific details regarding the activities at [site name] or the MOA, you 

may wish to contact the [state name or department responsible for implementing the MOA]. 

If you have any additional questions, or wish to discuss this information, please feel free to 

contact [insert EPA contact and address]. 

Sincerely yours, 

Regional Contact 

cc: State contact 

[COMMENT1](Insert name of Site and identification of property identified in the initial

request letter)

[COMMENT2]Select the following paragraph(s) under (A) which apply. Add propertyspecific information as appropriate.

[COMMENT3] [If appropriate, attach and refer to depiction of Site to illustrate]

198 
APPENDIX E 

199
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200
Headquarters 

401 M Street, SW 

Washington, DC 20460 

Office of Site Remediation 

Enforcement 

Mail Code: 2273A 

Fax: 202-564-0093 

Tessa Hendrickson 

Policy and Guidance Branch 

202-564-6052 

hendrickson.tessa@epa.gov 

Phil Page 

Policy and Guidance Branch 

202-564-4211 

page.phillip@epa.gov 

Elisabeth Freed 

Policy and Guidance Branch 

202-564-5117 

freed.elisabeth@epa.gov 

Outreach and Special Projects 

Staff 

(Brownfields Lead Office)

Mail Code: 5101

Fax: 202-260-6606

Linda Garczynski, Director 

202-566-2731 

garczynski.linda@epa.gov 

Ann McDonough, 

Associate Director 

202-566-2729 

mcdonough.ann@epa.gov 

Office of Emergency and Remedial Response 

Mail Code: 5204G 

Fax: 703-603-9104 

Melissa Friedland (SRI) 

703-603-8864 

friedland.melissa@epa.gov 

John Harris (SRI) 

703-603-9075 

harris.john@epa.gov 

Technology Innovation Office 

Mail Code: 5102G 

Fax: 703-603-9135 

Daniel Powell 

703-603-7196 

powell.daniel@epa.gov 

Office of Environmental Justice 

Mail Code: 2201A 

Fax: 202-564-0740 

Charles Lee 

202-564-2698 

lee.charles@epa.gov 

Office of General Counsel 

Mail Code: 2366A 

Fax: 202-564-5531 

Karen Kraus (Superfund) 

202-260-4139 

kraus.karen@epa.gov 

Dawn Messier (RCRA) 

202-564-5517 

messier.dawn@epa.gov 

Office of Solid Waste (RCRA) 

Mail Code: 5303W 

Fax: 703-308-8658 

Mike Fitzpatrick 

703-308-8411 

fitspatrick.michael@epa.gov 

201 
Sara Rasmussen 

703-308-8399 

rasmussen.sara@epa.gov 

Regional Superfund 

Brownfields Contacts 

Region 1 - CT, ME, MA, NH, RI, 

VT 

One Congress Street

Boston, MA, 02114-2023 

Fax: 617-918-1291 

Lynne Jennings 

617-918-1210 

jennings.lynn@epa.gov 

Rona Gregory* 

617-918-1096 

gregory.rona@epa.gov 

Audrey Zucker* 

zucker.audrey@epa.gov 

Region 2 - NJ, NY, PR, VI 

290 Broadway, 18th Floor 

New York, NY 10278 

Fax: 212-637-4360 

Larry D’Andrea 

212-637-4314 

dandrea.larry@epa.gov 

Michael Mintzer* 

212-637-3168 

mintzer.michael@epa.gov 

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

WV 

1650 Arch Street 

Philadelphia, PA 19103 

Fax: 215-814-5518 

Tom Stolle 

215-814-3129 

stolle.tom@epa.gov 

Heather Gray Torres* 

215-814-2696 

torres.heathergray@epa.gov 

Region 4 - AL, FL, GA, KY, MS, 

NC, SC, TN 

Atlanta Federal Center 

61 Forsyth Street 

Atlanta, GA 30303 

Fax: 404-562-8628 

Mickey Hartnett 

404-562-8661 

hartnett.mickey@epa.gov 

Janet Magnuson* 

404-562-9581 

magnuson.janet@epa.gov 

Region 5 - IL, IN, MI, MN, OH, 

WI 

77 West Jackson Boulevard 

Chicago, IL 60604-3507 

Fax: 312-353-7190 

Deborah Orr 

312-886-7576 

orr.deborah@epa.gov 

Peter Felitti* 

312-886-5114 

felitti.peter@epa.gov 

Region 6 - AR, LA, NM, OK, TX 

First Interstate Bank Tower at

Fountain Place

1445 Ross Avenue, Suite 1200

Dallas, TX 75202-2733

Fax: 214-665-6660

202 
Stan Hitt 

214-665-6736 

hitt.stanley@epa.gov 

Joseph Compton* 

214-665-8506 

compton.joseph@epa.gov 

Region 7 - IA, KS, MO, NE 

901 North 5th Street 

Kansas City, KS 66101 

Fax: 913-551-7063 

Susan Klein 

913-551-7786 

klein.susan@epa.gov 

Bob Richards* 

913-551-7502 

richards.robert@epa.gov 

Region 8 - CO, MT, ND, SD, UT, 

WY 

999 18th Street, Suite 500 

Denver, CO 80202-2405 

Fax: 303-312-6071 

Kathie Atencio 

303-312-6803 

atencio.kathie@epa.gov 

Suzanne Bohan* 

303-312-6925 

bohan.suzanne@epa.gov 

Region 9 - AZ, CA, HI, NV, AS, 

GU 

75 Hawthorne Street 

San Francisco, CA 94105 

Fax: 415-744-1796 

Jim Hanson 

415-744-2237 

hanson.jim@epa.gov 

Bill Keener* 

415-744-1356 

keener.bill@epa.gov 

Region 10 - AK, ID, OR, WA 

1200 Sixth Avenue 

Seattle, WA 98101 

Fax: 206-553-0124 

Tim Brincefield 

206-553-2100 

brincefield.tim@epa.gov 

Cara Steiner-Riley* 

206-553-2569 

steiner-riley.cara@epa.gov 

*Indicates Regional Brownfield Attorney 

Regional RCRA

Brownfields Contacts 

Matt Hoagland 

USEPA Region 1 (MC HBT) 

One Congress Street 

Boston, MA 02114-2023 

617-918-1361 

hoagland.matt@epa.gov 

Michael Poetzch 

USEPA Region 2 

290 Broadway/ 22nd Floor 

New York, NY 10007-1866 

212-637-4147 

poetzch.michael@epa.gov 

Deborah Goldblum 

USEPA Region 3 (MC 3RC30)

1650 Arch Street

Philadelphia, PA 19103-2029

215-814-3432

goldblum.deborah@epa.gov

203 
Susan Capel 

USEPA Region 4 

Atlanta Federal Cente 

61 Forsyth Street 

Atlanta, GA 30303-8960 

404-562-9655 

capel.susan@epa.gov 

Ann Wentz 

USEPA Region 5 (MC DW-8J) 

77 West Jackson Boulevard 

Chicago, IL 60604-3590 

312-886-8097 

wentz.ann@epa.gov 

Cathy Gilmore 

USEPA Region 6 (MC 6 EN-HX) 

1445 Ross Avenue, Suite 1200 

Dallas, TX 75202-2733 

214-665-6755 

gilmore.cathy@epa.gov 

Stephanie Doolan 

USEPA Region 7 (MC 

RCAPARTD) 

901 N. 5th Street 

Kansas City, KS 66101 

913-551-7719 

doolan.stephanie@epa.gov 

Bill Rothenmeyer 

USEPA Region 8 (MC 8 P-HW) 

999 18th Street, Suite 300 

Denver, CO 80202-2466 

303-312-6045 

rothenmeyer.william@epa.gov 

Karen Ueno 

USEPA Region 9 (MC WST-2) 

75 Hawthorne Street 

San Francisco, CA 94105 

415-744-2023 

ueno.karen@epa.gov 

Mike Slater 

USEPA Region 10

Oregon Operations Office

811 S.W. 6th Avenue, third floor

Portland, OR 97204

slater.mike@epa.gov

204