Cleanup Enforcement

EPA, through the ER3 initiative, will offer appropriate incentives to developers and property owners that are willing to adopt sustainable development practices. EPA’s Office of Enforcement and Compliance Assurance (OECA), working with Regional offices, will seek to provide enforcement and regulatory relief related incentives. To enhance this initiative, OECA is also coordinating with other EPA offices to develop a catalogue of incentives that can be used individually or in combination based on site-specific circumstances.

For over a decade, OECA has developed numerous tools to ease liability concerns to help spur the redevelopment and reuse of contaminated sites. See Enforcement Tools that Address Liability Concerns for a discussion on these tools. Through ER3, OECA will explore the expanded use of the following tools when there is a commitment from a developer or other party to implement ER3. Additional incentives may be identified and further developed as OECA  gains more experience with the ER3 initiative.

On this page :

• Propsective Purchaser Agreements and Bona Fide Prospective Purchaser Work Agreements
• Comfort/Status Letters

Prospective Purchaser Agreements and Bona Fide Prospective Purchaser Work Agreements

Prior to enactment of the 2002 Brownfield Amendments, EPA used prospective purchaser agreements (PPAs) to clarify and settle the responsibilities and/or liabilities of a prospective purchaser to enable the reuse of contaminated properties.

In May 2002, EPA issued the "Bona Fide Prospective Purchasers and the New Amendments to CERCLA" (PDF) (5pp, 146K, About PDF) policy stating that, in most cases, the Brownfields Amendments make agreements that provide a covenant the to sue (prospective purchaser agreements or PPAs) from the federal government unnecessary.

EPA continues to believe that PPAs are no longer necessary in the vast majority of cases, because BFPPs may now purchase property with knowledge of contamination and not acquire Superfund liability as long as they meet certain BFPP criteria. In the May 2002 BFPP Policy, the Agency recognized that, in limited instances, the public interest would be served by entering into PPAs or some other form of agreement with purchasers of contaminated property.

EPA has subsequently developed a "BFPP Doing Removal Work Agreement (PDF)" (--pp, --K, About PDF) which responds to requests from parties who enjoy liability protections provided for bona fide prospective purchasers who will perform removal work at sites of federal interest that they own or intend to acquire, where EPA may advise on the extent of cleanup required and oversee the work, and where the removal work will exceed the "reasonable steps to prevent releases" obligation upon which their BFPP status depends.

Under existing EPA policy, a PPA may be appropriate if there are significant benefits to the community and the environment and a BFPP Work Agrement may not work – a criterion that would likely be met by an ER3 project. EPA will consider negotiating a PPA in those cases where a PPA would not necessarily be appropriate or necessary and where the entity incorporates ER3 principles and develops a property in a manner that results in environmentally responsible performance.

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Comfort Status Letters

EPA issues comfort status letters to explain EPA"s current knowledge of the existing environmental and regulatory status of a contaminated site targeted for redevelopment or reuse.

Generally, a comfort status letter is provided if:

• it will facilitate the clean up and reuse of a contaminated property;
• there is a realistic perception or probability that EPA will initiate a cleanup action; and
• there is no other adequate mechanism available to address the party’s concerns.

If an entity commits to pursuing ER3, EPA will consider issuing a comfort letter even if the circumstances do not meet these general criteria, such as at a site with no realistic probability that EPA will initiate a cleanup action at the property.

EPA continues to look at broad range of enforcement tools which can provide liability relief and/or liability certainty to developers as well as other potential incentives from other Agency offices to help promote sustainable development.

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