COMMON ELEMENTS CHECKLIST

The landowner liability protection “common
elements” are the following:

Threshold Criteria:

| All appropriate inquiry

im Not a potentially responsible party and not
affiliated with a potentially liable party

Ongoing Obligations:

LJ Complying with and not impeding land use
restrictions and institutional controls

Exercising appropriate care by taking
reasonable steps with respect to hazardous
substances on property

Cooperation, assistance and access

Compliance with information requests and
administrative subpoenas

Coo oOo

Providing legally required notices

REASONABLE STEPS CHECKLIST

Taking reasonable steps with respect to
hazardous substances on property includes:

L] Stopping continuing releases

im Preventing threatened future releases

im Preventing or limiting human,
environmental, or natural resource

exposure to earlier hazardous substance
releases

WANT TO LEARN MORE?

To access copies of the guidance documents and for

more information please visit EPA’s Web site at:

www.epa.gov/enforcement/brownfields

For more information about revitalizing
contaminated sites and addressing potential liability
concerns, please see OSRE’s Revitalization
Handbook at:

www.epa.gov/compliance/resources/publications/
cleanup/brownfields/handbook

or contact the
Office of Site Remediation Enforcement
at
(202) 564-5110

or

U.S. Environmental Protection Agency
Office of Enforcement and Compliance Assurance
Office of Site Remediation Enforcement
MC 2273-A
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460

EPA Publication No. 330-F-08-002

Office of Site
Remediation Enforcement

LANDOWNER
PROTECTIONS
UNDER CERCLA

This brochure describes the 2002
Brownfields Amendments' liability
protections for landowners at Superfund
and Brownfields sites.



IMPLEMENTATION OF THE
BROWNFIELDS AMENDMENTS

The Small Business Liability Relief and Brownfields
Revitalization Act, a.k.a. "Brownfields Amendments,"
was signed into law on January 11, 2002.

The Brownfields Amendments provide important
liability protections and clarifications for certain
landowners who are not responsible for site
contamination. Potential liability under the
Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), a.k.a.
“Superfund,” was often perceived as a deterrent to
reuse of contaminated properties. CERCLA
landowner liability protections help to serve as an
essential component of the successful reuse of
previously contaminated properties in an
environmentally responsible manner.

EPA’s Office of Site Remediation Enforcement
(OSRE) is responsible for the management of EPA’s
Superfund enforcement program. OSRE actively
worked with EPA’s Regional Offices and the
Department of Justice to develop guidance documents
that help with the implementation of the landowner
liability provisions provided by the Brownfields
Amendments.

Several of the guidances are interim because EPA
recognized that experience in implementing the
Brownfields Amendments may require modifying the
guidances in the future. OSRE welcomes comments
on all of the guidances identified in this brochure.

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EPA GUIDANCE DOCUMENTS

Landowner Liability Protection
“Common Elements”

Explains EPA’s approach to applying criteria common
to the new landowner liability protections, a.k.a.
“common elements.” The criteria apply to the bona fide
prospective purchaser, contiguous property owner, and
innocent landowner liability protections. The guidance
discusses the appropriate care/reasonable steps and
institutional control/land use criteria, two of the most
asked questions about provisions of the liability
protections. The guidance includes a sample reasonable
steps comfort/status letter that may be used to facilitate
property reuse. (See reverse side of this flyer for
“Common Elements Checklist.”)

Contiguous Property Owner
Liability Protection

Discusses Section 107(q), which provides a liability
exemption for contiguous property owners or others
similarly situated who own real property contaminated
as a result of pollution migration from another’s
property. The guidance explains EPA’s enforcement
approach towards such parties.

Bona Fide Prospective Purchaser
Liability Protection

Discusses the liability protection for a bona fide
prospective purchaser. This protection largely
eliminates the need for federal CERCLA covenants not
to sue in prospective purchaser agreements (PPAs). The
guidance describes the limited circumstances where EPA
involvement might be appropriate to facilitate beneficial
reuse of the property.

Bona Fide Prospective Purchaser
Removal Model Agreement

Responds to requests for liability protection from
would-be purchasers of contaminated property who will
achieve bona fide prospective purchaser status but want

to perform cleanup under EPA oversight and beyond
the reasonable steps to prevent releases requirement.
EPA may enter into a removal agreement providing a
federal CERCLA covenant not to sue and contribution
protection to a bona fide prospective purchaser when
EPA can receive, among other things, oversight costs.
The model agreement addresses potential liability
concerns when substantial cleanup work is performed
by the bona fide prospective purchaser. The model
includes appropriate provisions for the performance of
removal work and the release and waiver of any
windfall lien.

Windfall Lien Interim Policy

Explains when the United States would, and would
not, use the windfall lien provision. This provision
gives EPA a lien on a bona fide prospective purchaser’s
property for an increase in fair market value
attributable to EPA’s cleanup action. The guidance
also describes EPA’s general approach to resolving
windfall liens and includes sample documents to
facilitate property reuse: a sample windfall lien
comfort/status letter and a model windfall lien
resolution.

Windfall Lien Administrative Procedures

Explains the timing for filing a notice of a windfall
lien on a property after acquisition by a bona fide
prospective purchaser. The guidance also describes
the administrative procedures for filing the notice and
includes a model pre-filing notice letter.

Eligible Response Site Guidance

Explains EPA’s process for using a site risk
assessment pre-score to determine which sites are, and
are not, eligible response sites as defined under
Section 101(41). Generally, this site status protects a
party conducting a cleanup in compliance with a State
response program from federal enforcement under
CERCLA.