Cleanup Enforcement

State and local government property acquisition is important to brownfields and land revitalization. EPA's Enforcement Office is working to address liability concerns of state or local governments that acquire contaminated sites for cleanup and revitalization. 

A state or local government entity may acquire property:

• Involuntarily as a function of their governmental sovereign powers. 
• Through a negotiated purchase in a transaction similar to one negotiated between private parties.

The manner in which property is acquired by a governmental entity is essential for determining its potential Superfund liability protections.

Involuntary Acquisitions
Bona Fide Prospective Purchaser
Local Government Compliance Assistance Center

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Involuntary Acquisitions

Generally, Superfund provides liability protection to state and local governments who acquire property by virtue of their function as a sovereign. The exclusion from Superfund liability (CERCLA 101(20)(D)) and the affirmative defense for Superfund liability (CERCLA 101(35)(A)(ii)) describe when a unit of state or local government is entitled to Superfund liability protection for property they own or acquire by virtue of their function as a sovereign. The types of acquisitions contemplated in these provisions are referred to generally as "involuntary acquisitions" but may also include acquisitions by purchase or condemnation using eminent domain authority.

EPA has addressed involuntary acquisition in several guidance documents that are listed below.

1. Policy on CERCLA Enforcement Against Lenders and Government Entities that Acquire Property Involuntarily (PDF) (5pp, 232KB) (9/22/95)
2. Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action (PDF) (6pp, 315KB) (10/20/95)
3. Fact Sheet: The Effect of Superfund on Involuntary Acquisitions of Contaminated Property by Government Entities (PDF) (3pp, 221KB) (12/31/95)
4. Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (PDF) (6pp, 37KB) (6/30/97)

Bona Fide Prospective Purchaser

State and local governments that acquire property, like private parties, are eligible for bona fide prospective purchaser (BFPP) protection from Superfund liability. In cases where it is unclear that the acquisition is by virtue of a government entity’s function as a sovereign, achieving BFPP status may be the only liability protection available to that government entity.

A list of requirements that BFPPs must comply with is available on the bona fide prospective purchaser web page.

Local Government Compliance Assistance Center

EPA, working with industry, academic institutions, environmental groups, and other agencies, sponsors compliance assistance centers that address the requirements of specific sectors.

The Local Government Environmental Assistance Network (LGEAN) is a "first-stop shop" providing environmental management, planning, funding, and regulatory information for local government elected and appointed officials, managers and staff.  LGEAN enables local officials to interact with their peers and others online.

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