Legal Policy and Guidance Related to Reuse
The following legal guidance documents are important because they detail how to address federal Superfund liability issues before you use or purchase a Superfund site as well as other issues that may arise on sites, such as EPA liens. Specifically, they provide information on the criteria one must meet in order to qualify for 'bona fide prospective purchaser' status, under what circumstances a windfall lien may be placed on your site, and EPA approaches for resolving potential windfall lien concerns.
- 2002 Brownfields
By establishing that landowners who qualify as bona fide prospective purchasers, contiguous property owners, or innocent landowners that are not liable under Superfund, this amendment to CERCLA can support reuse and revitalization of Superfund properties.
for Obtaining 'Bona Fide Prospective Purchaser' Status (Common Elements
Guidance) (PDF) (22 pp, 366K, About PDF)
This guidance describes the eight criteria landowners must meet to qualify for 'bona fide prospective purchaser' status. Specifically, this guidance discusses the threshold criteria (criteria that must be met before purchasing a site) for performing 'all appropriate inquiry' and demonstrating no 'affiliation' with a liable party as well as related issues (e.g., criteria that a buyer must continue to meet to maintain liability protection status).
- You can also view the Common Elements Guidance Reference Sheet (PDF) (6 pp, 240K, About PDF).
- EPA's 'Bona Fide Prospective Purchaser' (BFPP) Removal Model Agreement (PDF) (32 pp, 242K, About PDF), clarifies EPA's continuing effort to promote land reuse and revitalization by addressing liability concerns associated with acquiring contaminated properties.
Enacted November 1, 2006, "All appropriate inquiries" is the process of evaluating a property's environmental conditions and assessing potential liability for any contamination.
- You can also view the Fact Sheet on All Appropriate Inquiries Final Rule (PDF) (2 pp, 113K, About PDF).
Lien Guidance (PDF) (32 pp, 386K, About PDF)
Describes the 'Windfall Lien' provision of the 2002 Brownfields Amendments. Specifically, the document articulates factors that may lead EPA and the Department of Justice (DOJ) to assert a Windfall Lien and provides examples of situations where EPA will not pursue a Windfall Lien.
- Policy on the
Issue of Comfort/Status Letters
This document demonstrates the types of letters that EPA may issue to parties seeking to purchase, develop, or operate on contaminated or potentially contaminated property to provide some level of "comfort" that EPA will not pursue them for the costs to clean up any contamination resulting from previous use.
property owners (PDF) (11 pp, 88K, About PDF)
Memo that addresses interim guidance regarding liability limitation for landowners who qualify as contiguous property owners as defined in the 2002 Brownfields Amendments.
liability policy and guidance
Contains additional EPA model documents and guidance on liability and settlement procedures under Superfund and CERCLA.