MARCH 2011 

EPA-330-F-11-001 

Siting Renewable Energy on

Office of Enforcement and Compliance Assurance Contaminated Properties: 

Office of Site Remediation Enforcement 

Office of Solid Waste and Emergency Response 

Center for Program Analysis Addressing Liability Concerns 

The U.S. Environmental Protection Agency (EPA) recognizes the overall environmental benefits 

of siting renewable energy projects on contaminated properties and has developed this fact sheet 

to help clarify potential liability issues, summarize available resources and policy tools, and 

facilitate the implementation of these types of projects. This fact sheet provides answers to some 

1

common questions that developers of renewable energy projects on contaminated properties 

may have regarding potential liability for cleaning up contaminated properties. It also includes a 

Reference Section listing key EPA documents and websites and endnotes citing specific 

provisions discussed in the fact sheet that provide additional information. 

Key Messages for Renewable Energy Developers 

The vast majority of contaminated properties requiring cleanup are most likely to be addressed by state 

cleanup programs. Generally, only contaminated properties with significant actual or potential public health 

and/or environmental impacts or those needing immediate attention are likely to warrant federal cleanup or 

enforcement under CERCLA or RCRA. 

CERCLA includes a number of liability protections and generally prohibits federal CERCLA enforcement 

against parties who are cleaning up certain lower risk contaminated properties in compliance with a state 

response program that specifically governs cleanups. 

EPA has developed a variety of property-specific documents designed to encourage cleanups and facilitate 

contaminated property transactions and revitalization by parties not responsible for the contamination. 

Not all leases trigger CERCLA liability for lessees and EPA has issued general guidance regarding a lessee’s 

potential CERCLA liability. EPA will work with parties on a renewable energy project to address potential 

lessee liability issues and to determine whether a property-specific document from EPA may be needed. 

EPA encourages renewable energy developers to consult with legal counsel and the appropriate state, tribal 

or local environmental protection agency before taking any action to acquire, cleanup, or redevelop 

contaminated property. 

Please see the questions and answers below for a more complete explanation. 

What is EPA’s RE-Powering America’s Land Initiative? 

The RE-Powering America’s Land: Siting Renewable Energy on Potentially Contaminated Land 

2 and Mine Sites Initiative is an effort by EPA to identify the renewable energy potential of 

contaminated properties and provide other useful resources for communities, developers, 

industry, state and local governments, or anyone interested in reusing these properties for 

renewable energy development. 
Utility-scale renewable energy facilities often require large amounts of land that may displace or 

otherwise impact valuable open space, agricultural lands, or other uncontaminated “greenspace.” 

Meanwhile, thousands of former commercial and industrial properties across the country remain 

unused because of concerns about potential liability and contamination. These unused properties 

may not be well suited for residential or light commercial use. EPA’s Initiative seeks to address 

both the contamination and liability issues in order to place these properties back into productive 

use. EPA has identified more than 11,000 EPA- and state-tracked contaminated properties and 

mine sites (comprising nearly 15 million acres) that have potential for development as solar, 3 wind, biomass, and/or geothermal facilities.

Using potentially contaminated property and mine sites for renewable energy development offers 

many potential benefits. For example, it may: 

preserve “greenspace”;

provide developers with access to existing grid connection and other infrastructure; 

allow the location of generation facilities to be closer to the electrical load; 

create jobs;

garner support from local communities; and 

enable potentially contaminated properties to return to productive and sustainable use.

Will I be held liable by EPA (or a state) if I develop a renewable energy project on a 

contaminated property? 

State and federal cleanup laws have led to the cleanup and reuse of thousands of contaminated 

properties, in part by ensuring that those actually responsible for pollution are held responsible 

for cleanups. However, these same laws have sometimes created uncertainty regarding who will 

pay the costs of cleaning up such properties. Recognizing the numerous environmental, public 

health, and economic benefits associated with cleaning up and reusing previously developed 

property, brownfields and land revitalization programs were developed. Many state and federal 

laws and policies were changed to clarify, and in certain situations provide protection against, the 

liability risk associated with the reuse of contaminated properties, particularly for parties who 

wish to reuse property that they did not contaminate. Today, state and federal governments are 

using a wide variety of mechanisms, including liability protections, policy guidance, and sitespecific revitalization tools, to clarify potential liability and address uncertainty, some of which 

are discussed in this fact sheet. 

Notwithstanding these statutory changes and efforts by the federal and state governments, many 

prospective purchasers, developers, and lenders report hesitation about involvement with 

contaminated properties because of fear they might be held liable under federal or state cleanup 

laws. However, relatively few contaminated properties involve cleanup or enforcement under the 

two principal federal cleanup laws, the Comprehensive Environmental Response, Compensation, 

and Liability Act (CERCLA, also known as the Superfund law) and the Resource Conservation 

4 and Recovery Act (RCRA). Generally, only contaminated properties with significant actual or 

potential public health and/or environmental impacts or those needing immediate attention are 

5 6 likely to warrant federal cleanup or enforcement under CERCLA or RCRA. Such properties

could include: 

sites on the Superfund National Priorities List (NPL); 

Siting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 2 
sites where EPA has completed or is undertaking CERCLA cleanup activities;

facilities subject to RCRA corrective action or post-closure care;

contaminated sites, including underground storage tanks (USTs), in Indian country; and

federally-owned sites undergoing CERCLA or RCRA cleanups.

The vast majority of properties requiring cleanup are most likely to be addressed by state cleanup 

programs, such as state Superfund, brownfields, voluntary cleanup (VCP), or UST programs. 

Depending on the state, laws may provide liability protections for new owners or lessees who 

were not responsible for the past contamination. Since 2008, all states have programs or policies 

to provide some level of liability protection to new owners or lessees in specific situations. While 

individual states are the best source of information about their land cleanup and revitalization 

laws and programs, EPA will work with parties on a renewable energy project to determine 

which agency has oversight responsibility for the property. 

7 The 2002 Brownfield Amendments to CERCLA (Brownfield Amendments) generally prohibit 

federal CERCLA enforcement against parties who are cleaning up certain lower risk 

contaminated properties called “eligible response sites” in compliance with a state response 

8 program that specifically governs cleanups. This is commonly referred to as the “enforcement 

9 bar.” CERCLA does include exceptions to this enforcement bar under specific circumstances. In 

addition, many states are parties to a memorandum of agreement (MOA) with EPA regarding the 

10 appropriate use of their VCPs. These MOAs do not alter legal rights or responsibilities, but 

often include general enforcement assurances from EPA that it does not intend to initiate 

enforcement actions related to properties assessed and cleaned up under VCPs and in accordance 

with the terms of the MOA. 

Of course, whether a purchaser or lessee will qualify for liability protection under federal or state 

law or policy depends on the facts and circumstances of each case, including, among other 

things, the developer’s conduct with respect to any hazardous substances on the property. The 

remainder of this fact sheet will address issues associated with CERCLA and RCRA liability. 

What CERCLA liability protections are available for purchasers of contaminated 

property? 

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

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

public, pay to clean up the contamination. As described in CERCLA § 107(a), the following 

categories of persons can be held liable for the costs or performance of a cleanup under 

CERCLA: 

the current owner or operator of a facility;

an owner or operator at the time of disposal;

a person who arranged for the disposal or treatment of hazardous substances (“generator”

or “arranger”); and 

a person who accepted hazardous substances for transport and selected the site to which 

the substances were transported (“transporter”). 

Siting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 3 
11 

CERCLA includes several self-implementing liability protections for parties who own or acquire 

contaminated property but did not cause or contribute to the contamination. The Brownfield 

Amendments created new liability protections for “bona fide prospective purchasers” (BFPPs)

12 and “contiguous property owners,” and also modified CERCLA’s existing liability defense 

13 provision for “innocent landowners.” For landowners who meet the statutory requirements, 

EPA approval is not required for these liability protections to take effect, as discussed below. 

These protections also may apply to properties acquired from the federal government. 

The CERCLA liability protection for BFPPs is an important and widely-applicable provision 

because it applies to parties who purchase contaminated property with or without knowledge of 

the contamination (see below for discussion of lessees). To remain protected from CERCLA 

liability for existing contamination at the property, a new purchaser must achieve and maintain 

BFPP status. 

14 The statutory requirements for BFPP liability protection are: 

the property must have been acquired after January 11, 2002; 

all disposal of hazardous substances must have taken place before acquisition; 

“All Appropriate Inquiries” (AAI) must have been conducted in compliance with federal

15 regulations before acquiring the property; 

the party seeking to become a BFPP cannot otherwise be liable or affiliated with any 

other person that is potentially liable for the property’s cleanup costs; and 

after acquiring the property, the BFPP must: 

16 take reasonable steps to prevent releases of hazardous substances found at the 

property; 

provide cooperation, assistance, and access to the property for EPA or others 

undertaking cleanup work; 

comply with CERCLA information requests and subpoenas; 

provide all legally required notices; 

not impede any cleanup work or natural resource restoration; and 

comply with land use restrictions and not impede the effectiveness or integrity of 

institutional controls placed on the property to prevent the spread or release of 

contaminants. 

CERCLA also includes liability exemptions for certain lenders and others who hold secured 

17 interests in property and state or local governments that involuntarily acquire contaminated 

property (for example, through bankruptcy, foreclosure, or abandonment) and did not cause or 

contribute to the contamination. CERCLA § 101(20)(D) provides that a unit of state or local 

government will not be considered an owner or operator of contaminated property (and thus is 

exempt from potential CERCLA liability as a PRP) if the state or local government acquired 

ownership or control involuntarily. CERCLA § 101(35)(A)(ii), in conjunction with CERCLA 

§ 107(b)(3), provides an innocent landowner defense for state and local governments that have 

18 acquired contaminated property “involuntarily” or through certain other mechanisms.

With respect to federal facilities, CERCLA provides transferees of federally-owned property 

19 additional statutory protections. Federal law provides that the Secretary of Defense shall hold 

harmless and indemnify persons (including lessees) that acquire ownership or control of any 

Siting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 4 
facility at a military installation that is closing or closed pursuant to a base closure law from any 

claim for personal injury or property damage that results from the release or threatened release of 

hazardous substances, petroleum, or petroleum derivatives. The indemnification does not apply 

to persons and entities that contributed to any release or threatened release or with respect to 

20 contamination disposed of at the property after the period of federal ownership.

What RCRA liability protections are available for purchasers of contaminated 

property? 

RCRA does not contain a BFPP or similar liability protection for purchasers of contaminated 

property. However, subject to enforcement discretion and resources, EPA may be able to use 

some of its property-specific documents (see discussion below) to clarify potential RCRA 

liability for those developing renewable energy projects on contaminated properties. Further, 

interested parties also may be able to work with their respective states or EPA to separate the 

ownership of an UST from the ownership/lease of the land. RCRA Subtitle I (addressing USTs) 

does contain a “security interest exemption” that provides secured creditors (i.e., lenders) a 

21 limited statutory exemption from corrective action liability for releases from petroleum USTs.

EPA's 1995 UST Lender Liability Rule lays out the specific conditions under which certain 

secured lenders may be exempted from RCRA Subtitle I regulatory requirements including 

22

corrective action, technical requirements, and financial responsibility.

Are there liability protections for lessees of contaminated property? 

Yes, in certain circumstances. A common scenario for renewable energy facilities involves a 

developer leasing property on which it builds and operates a generation facility, leading to 

questions regarding a lessee’s potential liability risks. Not all leases trigger CERCLA liability for 

lessees. However, given the factors some courts have used to decide whether a particular lessee 

is an “operator” (or “owner”) under CERCLA, EPA recognizes that there may be uncertainty 

regarding potential liability of lessees under CERCLA. Due in part to CERCLA’s explicit 

23 reference to “tenants” in the definition of a BFPP, EPA has issued general guidance (discussed 

below) as to how EPA intends to exercise its enforcement discretion regarding a tenant’s 

24 potential CERCLA liability. EPA will work with parties on a renewable energy project to 

address potential lessee liability issues as discussed below. 

Lessees and Indicia of Ownership under CERCLA 

EPA’s guidance regarding a tenant’s potential CERCLA liability describes how EPA intends to 

exercise its enforcement discretion on a site-specific basis regarding a lessee with sufficient 

25 “indicia of ownership” to establish “owner” liability under CERCLA. Specifically, if a lessee 

has sufficient indicia of ownership to be an owner, EPA intends to exercise its enforcement 

discretion and consider the lessee to be a BFPP so long as the lessee complies with the statutory 

26 requirements for the BFPP liability protection discussed above.

The concept of “indicia of ownership” has been used by some courts to hold lessees liable as 

owners under CERCLA in certain circumstances, including where particular lease terms are such 

to make the lessee the functional equivalent of an owner. These courts have engaged in a factSiting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 5 
specific inquiry as to whether the terms of the lease for the contaminated property included 

sufficient indicia of ownership. One court looked closely at a lease to determine the extent of the 

lessee’s responsibilities at the property, the autonomy of the lessee in making decisions regarding 

27 the property, and the authorization given by the owner for the lessee’s use of the property. The 

court looked at certain factors to evaluate indicia of ownership for purposes of CERCLA 

liability, including, whether the term of the lease was lengthy; whether the owner relinquished 

control over a lessee’s ability to sublet the property or to use the property; and whether the lessee 

was responsible for taxes, insurance, and repairs. Where a lease provides more limited rights to a 

lessee, courts applying a similar analysis could find that the lease does not provide sufficient 

indicia of ownership to establish liability under CERCLA. If a prospective lessee is uncertain 

whether the terms of a lease create CERCLA liability, as a precautionary measure, the lessee 

nonetheless could opt to follow the requirements for BFPP protection, as if it intended to be an 

owner. 

Lessees with “Derivative” BFPP Status 

In addition to purchasers of contaminated property, CERCLA’s BFPP protection applies to 

lessees who have entered into a lease with an owner who is itself a BFPP. CERCLA provides 

that a lessee may derive BFPP status from an owner so long as the owner achieves and maintains 

its BFPP status and the lessee does not dispose of hazardous substances at the property or impede 

any cleanup work or natural resource restoration. As explained in more detail in EPA’s guidance 

regarding a tenant’s potential CERCLA liability, if the owner loses its own BFPP status through 

no fault of the lessee, EPA intends to exercise its enforcement discretion on a property-specific 

basis and not pursue the lessee so long as the lessee meets the statutory requirements for the 

28 BFPP liability protection discussed above. If the owner is a PRP, the lessee cannot derive 

BFPP status from the owner. 

Lessees and Potential Operator Liability under CERCLA 

Many developers who lease contaminated property for renewable energy generation projects 

may not be leasing from a BFPP and may not have sufficient indicia of ownership to be eligible 

to seek BFPP status. Parties who lease or develop contaminated property should recognize the 

potential to incur liability as a current operator under CERCLA, even if they did not cause or 

contribute to the original contamination. For example, the installation of renewable energy 

infrastructure often may require activities such as grading or earth removal and the installation of 

footings, power lines, and other infrastructure. Determining whether these or other activities may 

exacerbate existing contamination will require a careful technical and legal analysis of the 

property and the proposed activities. To assist lessees with this analysis, EPA may be able to 

provide a property-specific document containing information on the property’s cleanup status 

and EPA’s current intentions concerning its exercise of its cleanup and enforcement authorities. 

State Liability Protections for Lessees 

As discussed above, states, through cleanup programs such as state Superfund, brownfields, 

VCPs, or UST programs oversee the cleanup of most contaminated properties. Such state 

programs often facilitate the reuse of these properties by providing liability protections for new 

Siting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 6 
owners, which may or may not apply to lessees of property or which may be contingent upon 

whether the owner is liable because he or she caused or contributed to the contamination. EPA 

recommends that prospective lessees contact the state environmental protection agency in the 

state where the property is located to discuss available state liability protections for lessees. 

I believe my project will not trigger cleanup liability. Can I obtain documentation to 

confirm that the government (state and/or EPA) will not hold me liable? 

State VCPs frequently will provide property-specific liability protection (for example, covenants 

not-to-sue or no-action letters, sometimes accompanying certificates of completion) to entities 

seeking to purchase, rent, or otherwise become financially involved in reusing contaminated 

property. These property-specific tools typically work best at properties where significant 

environmental assessment work has already occurred and where information is available about 

the extent of the contamination. In addition and as discussed above, CERCLA’s “enforcement 

bar” generally prohibits federal CERCLA enforcement against parties who are cleaning up 

certain lower risk contaminated properties in compliance with a state response program that 

specifically governs cleanups. 

Given that most contaminated properties are addressed under state programs and that the 

CERCLA liability protections are self-implementing for the most part, EPA does not need to 

become involved with property-specific determinations regarding an entity’s potential CERCLA 

liability. However, EPA will work with parties on a renewable energy project to determine 

whether a site-specific document from EPA may be needed for a transaction to go forward. 

Moreover, EPA has issued guidance regarding how it intends to exercise its discretion in taking 

enforcement actions in certain common situations. These guidance documents are intended to 

clarify EPA’s enforcement intentions and may provide greater certainty to parties who are not 

responsible for the contamination but are concerned about potential CERCLA or RCRA liability. 

As EPA gains more experience with renewable energy development, EPA may develop 

additional facts sheets that address common factual scenarios such as the installation of a solar 

generating facility on a landfill cap, or the construction of wind turbine facilities on mine-scarred 

land. 

EPA also has developed a variety of property-specific informational documents for Superfund 

and RCRA properties designed to encourage cleanups and facilitate contaminated property 

transactions and revitalization by parties not responsible for the contamination. These propertyspecific documents include comfort/status letters, ready for reuse (RfR) determinations, and 

Superfund NPL partial deletions. EPA will work with parties on a renewable energy project to 

determine whether a property-specific document from EPA may be needed for a transaction to 

go forward. Each of these documents is intended to provide information on the property’s 

cleanup status and may further provide information about EPA’s current intentions concerning 

its exercise of its cleanup and enforcement authorities. For example, an RfR determination is an 

environmental status report that documents EPA’s technical determination that all or a portion of 

a property is sufficiently cleaned up to support specified types of uses. 

Siting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 7 
Comfort/status letters could provide renewable energy developers with information EPA has 

about a contaminated property and EPA’s intentions with respect to the property as of the date of 

the letter. The “comfort” comes from a greater understanding of what EPA knows about the 

property and EPA’s intentions with respect to any cleanup activities. The comfort/status letter 

also could discuss “reasonable steps” that a renewable energy developer who is purchasing or 

29 leasing property may need to take to achieve and/or maintain liability protection. EPA believes 

Congress did not intend to create, as a general matter, the same types of cleanup obligations for a 

BFPP that exist for a liable party under CERCLA. “Nevertheless, it also seems clear that 

Congress also did not intend to allow a landowner to ignore the potential dangers associated with 

30 hazardous substances on its property.” Thus, for example, a “reasonable steps” comfort/status 

letter could identify steps to take when installing solar panels on a soil or engineered cap to help 

avoid exacerbating existing contamination and potentially triggering CERCLA liability. EPA 

recognizes that renewable energy projects may involve unique activities or require more invasive 

actions; thus, direct consultation is recommended with EPA’s RE-Powering America’s Land 

team members, other EPA revitalization staff, and relevant state environmental protection 

agency staff to identify property-specific recommendations or reasonable steps. A list and 

contact information for EPA Regional staff who can assist you is available on EPA’s website at 

http://www.epa.gov/renewableenergyland/contacts. 

Finally, in certain circumstances, EPA may enter into administrative agreements concerning the 

property to clarify potential CERCLA and/or RCRA liability. These may include BFPP doing 

work agreements, prospective purchaser agreements (PPAs), prospective lessee agreements 

(PLAs), windfall lien resolution agreements, contiguous property owner agreements, and 

31 contiguous property owner no action assurance letters. While EPA believes the need for these 

types of agreements has been largely addressed by the self-implementing liability protections 

provided by the Brownfield Amendments and by enforcement discretion guidance, the Agency 

recognizes that in certain circumstances, a property-specific document may be needed to 

facilitate a transaction. For example, under the Environmentally Responsible Redevelopment and 

Reuse (ER3) initiative, EPA has used enforcement incentives such as a PPAs and PLAs to 

32 promote sustainable cleanup and redevelopment of contaminated properties.

Generally, EPA’s property-specific documents and agreements are available in situations where 

such documents may facilitate the cleanup and redevelopment of contaminated properties, where 

there is a realistic perception or probability of incurring Superfund or RCRA liability, and where 

there is no other mechanism available to adequately address the party’s concerns. In accordance 

with EPA guidance, EPA generally considers issuing these documents for properties that are the 

subject of planned, ongoing, or previous federal cleanup or enforcement actions under CERCLA 

or RCRA. In addition, EPA anticipates that it will provide “reasonable steps” comfort/status 

letters for sites with significant federal involvement such that EPA has enough information to 

form a basis for suggesting reasonable steps (e.g., the site is on the NPL or EPA has conducted 

or is conducting a removal or remedial action on the site). 

Siting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 8 
Are there other mechanisms available to provide liability relief to purchasers and 

lessees who are not responsible for causing the contamination? 

Yes. In addition to the self-implementing CERCLA liability protections, EPA guidance, and 

property-specific documents discussed in this fact sheet, there are various private arrangements 

that can be used to manage environmental liability risks associated with the reuse of 

contaminated properties. Indemnification and release agreements and environmental insurance 

policies are examples of non-governmental tools that may be used to allocate responsibility for 

liability concerns. Indemnification and release agreements are private contracts in which one 

party (for example, a property owner) agrees to assume another party’s potential liability (for 

example, a lessee of that property). Indemnification and release agreements provide prospective 

buyers, lenders, insurers, and developers with a means of assigning responsibility for cleanup 

costs and encourage negotiations among private parties without government involvement. 

However, the existence of an indemnification and release agreement generally does not affect the 

way EPA or a particular state determines whether a party is a PRP and/or the decision whether to 

pursue an enforcement action against that party. Such an agreement, however, may affect the 

33 way a court determines whether a party qualifies for one of the CERCLA liability protections.

It is always advisable to seek legal advice before purchasing or leasing potentially contaminated 

property. 

Who can I talk to about liability concerns or to find out more information about the 

RE-Powering America’s Land Initiative? 

EPA has a national team in place to implement the RE-Powering America’s Land Initiative. 

There are a number of ways to find out more information or to get in contact with a team 

member. For general information, please go to http://www.epa.gov/renewableenergyland or 

contact EPA's Center for Program Analysis at cleanenergy@epa.gov. Staff from one of EPA’s 

Ten Regional offices may also be able to provide information and assistance to parties with 

questions about siting renewable energy development on contaminated properties located in a 

Region’s jurisdiction-- particularly on federal sites -- or with concerns about potential liability 

associated with such activities. 

For a list and contact information for EPA Regional staff who can assist you, please go to 

http://www.epa.gov/renewableenergyland/contacts. EPA also encourages you to consult with 

your legal counsel and with the appropriate state, tribal or local environmental protection agency 

before taking any action to acquire, cleanup, or redevelop contaminated property. 

Disclaimer: This fact sheet is provided solely as general information regarding liability in response to questions frequently raised by parties 

considering the purchase or lease of a potentially contaminated property. It does not provide legal advice, have any legally binding effect, or 

expressly or implicitly create, expand, or limit any legal rights, obligations, responsibilities, expectations, or benefits for any person. It is the 

property owner or lessee’s sole responsibility to ensure compliance with applicable local, state and federal environmental requirements and to 

ensure that its use of a contaminated property does not interfere with or impede the property’s cleanup or protectiveness, and participation in 

EPA’s RE-Powering America’s Land Initiative does not alter this responsibility. 

Siting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 9 
REFERENCE DOCUMENTS AND WEBSITES 

Documents and Information Cited to in this Fact Sheet (See endnotes) 

EPA’s RE-Powering America’s Land Initiative 

http://www.epa.gov/renewableenergyland 

EPA’s Renewable Energy Interactive Mapping Tool using Google Earth 

http://www.epa.gov/oswercpa/mapping_tool.htm 

EPA’s Cleanups in My Community website 

http://iaspub.epa.gov/Cleanups/ 

State & Tribal Response Programs Agreements 

http://www.epa.gov/swerosps/bf/state_tribal/moa_mou.htm 

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

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

(“Common Elements”), March 2003 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elem-guide.pdf 

All Appropriate Inquiries Rule website 

http://www.epa.gov/brownfields/aai 

UST Lender Liability Rule 

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

Enforcement Discretion Guidance Regarding the Applicability of the Bona Fide Prospective Purchaser

Definition in CERCLA § 101(40) to Tenants (“Tenants Guidance”), January 2009

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

Summary of EPA Enforcement Tools that Address Liability Concerns 

http://www.epa.gov/compliance/cleanup/revitalization/tools.html 

Environmentally Responsible Redevelopment and Reuse (ER3) Initiative 

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

Additional EPA Documents and Websites – Enforcement and Liability 

Revitalizing Contaminated Sites: Addressing Liability Concerns (“Revitalization Handbook”), March 2011 

http://www.epa.gov/compliance/resources/publications/cleanup/brownfields/handbook/index.html 

Top 10 Questions to Ask When Buying a Superfund Site, May 2008 

http://www.epa.gov/compliance/resources/publications/cleanup/superfund/top-10-ques.pdf 

CERCLA Liability and Local Government Acquisitions and Other Activities, March 2011 

http://www.epa.gov/compliance/resources/publications/cleanup/brownfields/local-gov-liab-acq-fs-rev.pdf 

Brownfields and Land Revitalization Cleanup Enforcement website 

http://www.epa.gov/enforcement/cleanup/revitalization/index.html 

CERCLA, Brownfields and Lender Liability Fact Sheet, April 2007 

http://www.epa.gov/swerosps/bf/aai/lenders_factsheet.pdf 

Other Cleanup Enforcement Policies and Guidance 

http://www.epa.gov/compliance/resources/policies/cleanup/index.html 

Siting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 10 
REFERENCE DOCUMENTS AND WEBSITES (CONT.) 

Additional EPA Documents and Websites – Long-Term Stewardship and Institutional Controls 

Institutional Controls Guidance website 

http://www.epa.gov/superfund/policy/ic/guide/index.htm 

Long-Term Stewardship Task Force Report, September 2005 

http://www.epa.gov/landrecycling/ltstf_report/index.htm 

Additional EPA Documents and Websites – Superfund 

Superfund Redevelopment website 

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

Considering Reasonably Anticipated Future Land Use and Reducing Barriers to Reuse at EPA-lead Superfund 

Remedial Sites 

http://www.epa.gov/superfund/programs/recycle/pdf/reusedirective.pdf 

Additional EPA Documents and Websites – RCRA 

RCRA Brownfields Prevention website 

http://www.epa.gov/waste/hazard/correctiveaction/bfields.htm 

Additional EPA Documents and Websites – Petroleum and Underground Storage Tanks 

Region, State, Tribal, and Local Underground Storage Tank Program Contacts 

http://www.epa.gov/oust/states/index.htm 

Petroleum Brownfields website 

http://www.epa.gov/oust/petroleumbrownfields/index.htm 

Additional EPA Documents and Websites – Federal Facilities 

Policy Towards Landowners and Transferees of Federal Facilities, June 1997 

http:// www.epa.gov/swerffrr/documents/613memo.htm 

Addendum to 1997 Policy Towards Landowners and Transferees of Federal Facilities, December 2006 

www.epa.gov/fedfac/addendum_to_EPA_1997_Policy_Towards_Landowners_and_Transferrees_of_FF. pdf 

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) (“Early Transfer Authority Guidance”), June 1996 

http://www.epa.gov/fedfac/documents/hkfin.htm 

Interim Guidance for EPA’s Base Realignment and Closure Program, April 2006 

http://www.epa.gov/swerffrr/pdf/interim_brac_guidance.pdf 

Additional EPA Documents and Websites – State Programs 

Review of All State Brownfields and VCP Programs, November 2009 

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

Individual State Summaries of Incentives and Liability Relief for Renewable Energy on Contaminated Land 

http://www.epa.gov/renewableenergyland/incentives.htm 

Siting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 11 
1 For purposes of this Fact Sheet, the term “developer” is meant broadly, and includes financing parties as well as 

project developers. 2 Additional information about EPA’s RE-Powering America’s Land Initiative is available on the Agency’s 

website at http://www.epa.gov/renewableenergyland. 3 EPA’s Renewable Energy Interactive Mapping Tool using Google Earth, available on the Agency’s website at 

http://www.epa.gov/oswercpa/mapping_tool.htm, will assist in locating these sites identified by EPA. 4 CERCLA, 42 U.S.C. §§ 9601, et seq.; RCRA, 42 U.S.C. §§ 6901, et seq. EPA and authorized states have 

several statutory authorities under RCRA under which they may require site investigation and/or cleanup 

activities at or from a RCRA facility. EPA encourages renewable energy developers to seek legal advice 

regarding potential liability before purchasing or leasing contaminated property. 5 States and private parties can also use CERCLA and RCRA in certain circumstances to pursue potentially 

responsible parties for performance of cleanups and payment of cleanup costs. Common law actions for 

nuisance, trespass, or negligence may also be available to states and private parties in certain circumstances. 6 For more information about individual properties being addressed by federal cleanup or enforcement actions, 

visit EPA’s Cleanups in My Community website at http://iaspub.epa.gov/Cleanups/. 7 Small Business Liability Relief and Brownfields Revitalization Act, Pub. L. 107-118 (Jan. 11, 2002). 8 CERCLA § 128(b). “Eligible response sites” are defined at CERCLA § 101(41). 9 CERCLA § 128(b)(1)(B)(i)-(iv) describes the four exceptions to this enforcement bar. 10 More information on current VCP MOAs is available from EPA’s State and Tribal Response Program

Agreements website at http://www.epa.gov/swerosps/bf/state_tribal/moa_mou.htm. 11 CERCLA §§ 101(40)(A)–(H) and 107(r)(1). 12 CERCLA § 107(q). 13 CERCLA §§ 107(b)(3) and 101(35)(A). 14 Some of the requirements for achieving BFPP status must be satisfied prior to acquiring a property. Other 

requirements for maintaining BFPP status are ongoing obligations that must be met after the purchase of the 

property for the duration of the BFPP’s ownership. For more information on these statutory requirements, see 

EPA’s “Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide 

Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability” 

(“Common Elements”) (Bromm, March 6, 2003). This guidance is available at 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/common-elem-guide.pdf. 15 EPA’s “All Appropriate Inquires” (AAI) website, http:// www.epa.gov/brownfields/aai, provides a link to the 

final rule which establishes specific regulatory requirements for conducting AAI into previous ownership, uses, 

and environmental conditions of a property for the purposes of qualifying for certain landowner liability protections under CERCLA. See also, All Appropriate Inquiries Rule, 70 Fed. Reg. 66070 (effective Nov. 1, 2006); 

40 C.F.R. Part 312. 16 “In requiring reasonable steps from parties qualifying for landowner liability protections, EPA believes 

Congress did not intend to create, as a general matter, the same types of response obligations that exist for a 

CERCLA liable party (e.g., removal of contaminated soil, extraction and treatment of contaminated 

groundwater).” Common Elements at pp. 9-10. 17 CERCLA § 101(20)(E) addresses lenders holding indicia of ownership to protect security interests. 18 It is important to note that CERCLA § 101(35)(A)(ii) explicitly includes acquisitions by condemnation or 

eminent domain in addition to certain “involuntary” acquisitions.” Conversely, the CERCLA § 101(20)(D) 

exemption does not apply to eminent domain or condemnation. 19 CERCLA §§ 120(h)(3) and (4) provides that certain deeds shall warrant all necessary remedial action has been 

taken before the transfer and that the United States will conduct all additional remedial action found to be 

necessary after the transfer. 20 Section 330, National Defense Authorization Act for Fiscal Year 1993, Pub. L. 102-484, as amended, 10 U.S.C. 

§ 2687. 21 Solid Waste Disposal Act § 9003(h)(9), 42 U.S.C. § 6991b. 22 40 C.F.R. § 280.200-300. Additional information on the UST Lender Liability Rule is available on EPA’s 

website at http://www.epa.gov/oust/fedlaws/280_i.pdf. 23 CERCLA § 101(40). 

Siting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 12 
24 See “Enforcement Discretion Guidance Regarding the Applicability of the Bona Fide Prospective Purchaser 

Definition in CERCLA § 101(40) to Tenants” (“Tenants Guidance”) (Nakayama/Bodine, Jan. 14, 2009) 

available on EPA’s website at http://www.epa.gov/compliance/resources/policies/cleanup/superfund/bfpptenant-mem.pdf. Also see “Enforcement Discretion Guidance Regarding the Applicability of the Bona Fide 

Prospective Purchaser Definition in CERCLA Section 101(40) to Tenants: Frequently Asked Questions,” 

available on EPA’s website at 

http://www.epa.gov/compliance/resources/publications/cleanup/superfund/tenant-bfpp-guide-ref.pdf. 25 See Tenants Guidance at pp. 3-4. 26 CERCLA §§ 101(40)(A)–(H) and 107(r)(1). 27 Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 330-331 (2d Cir. 2000). 28 Although there is no All Appropriate Inquiries (AAI) requirement for a tenant with derivative BFPP status, a 

tenant may need to obtain information on the prior uses of the property to have an informed basis on which to 

comply with these requirements. 29 Developers of contaminated property should recognize that property conditions, reasonable steps to address 

such property conditions, and costs to implement such reasonable steps are unique to each property. 30 Common Elements at p. 10. 31 CERCLA § 107(q)(3). For more information about contiguous property owner no action assurance letters, see 

“Interim Enforcement Discretion Guidance Regarding Contiguous Property Owners” (Jan. 13, 2004) available 

on EPA’s website at http://www.epa.gov/compliance/resources/policies/cleanup/superfund/contig-prop.pdf. 

Also, see “Model CERCLA Section 107(q)(3) Contiguous Property Owner Assurance Letter” (Nov. 9, 2009) 

available on EPA’s website at http://www.epa.gov/compliance/resources/policies/cleanup/superfund/cpoassure-mod-ltr-mem.pdf. 32 More information about ER3 is available on the Agency’s website at 

http://www.epa.gov/compliance/cleanup/revitalization/er3/index.html. 33 One recent judicial decision addressed the applicability of the BFPP “no affiliation” requirement in a case 

involving an indemnification agreement in which the purchaser agreed to indemnify the seller as to 

environmental liability at the site. One of the grounds for the court’s decision that the purchaser could not claim 

liability protection as a BFPP was that the indemnification agreement constituted an affiliation. Ashley II of 

Charleston, LLC v. PCS Nitrogen, Inc., 2010 WL 4025885, *57 (D.S.C., Oct. 13, 2010). 

Siting Renewable Energy on Contaminated Properties: Addressing Liability Concerns 13