Cleanup Enforcement

EPA has developed a number of policies and tools that address landowner liability concerns so that protective cleanups and revitalization can take place. These tools and guidance can be found in the Revitalization Handbook or the Brownfields cleanup policy and guidance database. These tools include:

• Comfort/status letters
• Prospective purchaser agreements (PPAs) and prospective lease agreements (PLAs)
• BFPP work agreements, and
• Windfall lien resolution agreements.

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Comfort/Status Letters

Some properties may remain unused or underutilized because potential property owners, developers, and lenders are unsure of the properties' environmental status.  EPA helps these interested parties better understand EPA's involvement, or likely involvement, at a potentially contaminated property through a comfort/status letter.

Although EPA tries to avoid involvement in private real estate actions, EPA is willing to provide a comfort/status letter when appropriate. A comfort/status letter may:

• Clarify the likelihood of EPA involvement at a property;
• Identify the applicability of a statutory provision or EPA policy (e.g., the Windfall Lien policy) toward a specific party or property;
• Describe the cleanup progress at a Superfund or RCRA site; and/or
• Suggest reasonable steps that should be taken at a site.  

EPA’s Common Elements Guidance (PDF) (22pp, 336KB) (March 2003) and Windfall Lien Guidance (PDF) (32pp, 386KB) (July 2003) provide model comfort/status letters addressing these topics.  

If EPA is not involved at the property, the letter may refer the party to the appropriate state agency.  The Agency uses sample letters to respond to requests.  Language from any of these letters may be used together to create a site-specific letter.  

Additional information on model comfort/status letters is available from the Superfund cleanup policy and guidance database.

PPAs and PLAs

EPA has long recognized the value of redeveloping contaminated land and the need to provide liability relief to encourage prospective purchasers of such land. 

Before the bona fide prospective purchaser (BFPP) liability protection was available, EPA developed tools for prospective purchasers of contaminated property, including prospective purchaser agreements (PPAs) and prospective lessee agreements (PLAs).  These are agreements between a liable party and EPA whereby EPA provides the party with liability relief in exchange for payment and/or cleanup work. 

After the enactment of the Brownfields Amendments, EPA issued a policy on May 31, 2002, Bona Fide Prospective Purchasers and the New Amendments to CERCLA (PDF), (5pp, 146KB) which discusses the interplay of the legislatively created BFPP and EPA’s use of PPAs.  In that policy, EPA stated that in most circumstances, PPAs will no longer be needed for a party to enjoy liability relief under CERCLA as a present owner.  There will continue to be, however, limited circumstances under which EPA will consider entering into a PPA, such as:

• significant environmental benefits will be derived from the project in terms of cleanup;
• there will be reimbursement of EPA response costs, or a new use; and
• there is a significant need for a PPA in order to accomplish the project’s goals

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BFPP Work Agreements

Despite the protections given to BFPPs, many prospective purchasers of contaminated property want further protection from EPA for cleanup work performed by them under EPA supervision.  

As a result, EPA and the Department of Justice (DOJ) issued a CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser (PDF) (29pp, 196KB) for use as an agreement with a BFPP who intends to perform removal work at its property.  The purpose of the model is to promote land reuse and revitalization by addressing liability concerns associated with acquisition of contaminated property.  In particular, the removal work to be performed under the model must be of greater scope and magnitude than the “reasonable steps to prevent releases” which must be performed by BFPPs if they are to maintain their protected status. 

The model provides a covenant not to sue for “existing contamination” and requires the person performing the removal work to reimburse EPA’s oversight costs.  Contribution protection is also provided.  The model is for use at sites of federal interest where the work is more significant and complex than the taking of "reasonable steps to prevent release," which is otherwise required of a BFPP who wishes to preserve its protected status.

Windfall Lien Resolution Agreements

Where EPA is likely to pursue a windfall lien and a BFPP wants to resolve any existing or potential windfall lien, EPA has developed a model windfall lien resolution document which is available as Attachment B to the July 2006 windfall lien guidance (PDF) (32pp, 386KB).

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