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Brownfields Liability

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Liability Issues

EPA issued interim guidance clarifying some of the conditions that contiguous property owners ("CPOs"), bona fide prospective purchasers ("BFPPs"), or innocent landowners ("ILOs") must meet to qualify for the liability limitations provided in the Brownfields Law. In addition, the Agency issued guidance on the definition of eligible response site provided in the law and how EPA plans to implement its authorities to exclude particular sites from the definition of an eligible response site. Both guidance documents clarify how EPA intends to use its enforcement discretion in specific situations not to pursue certain potentially liable parties. Links to the EPA Website addresses containing these guidance documents are provided below.

Policy Toward Owners of Property Containing Contaminated Aquifers

EPA issued guidance outlining its policy of not suing property owners for groundwater contamination of an aquifer underlying the property if the owner did not cause or contribute to the contamination.

Prospective Purchasers Agreements Guidance

Bona Fide Prospective Purchasers and the New Amendments to CERCLA. EPA issued guidance that stated that EPA believes that, in most cases, the Brownfields Amendments make PPAs from the federal government unnecessary. The following discussion describes when, primarily because of significant public benefit, EPA will consider providing a prospective purchaser with a covenant not to sue now that the Brownfields Amendments are law.

Guidance on Agreements with Prospective Purchasers of Contaminated Property

EPA issued guidance outlining situations under which the Agency may enter into an agreement not to file a lawsuit against a purchaser of property that was contaminated prior to the purchase.

Model Comfort Letter Clarifying NPL Listing, Uncontaminated Parcel Identifications, and CERCLA Liability Involving Transfers of Federally Owned Property

EPA issued this model comfort letter clarifying common myths about NPL listing and CERCLA liability, and highlights certain provisions concerning the transfer of Federally owned properties.

Policy on the Issuance of Comfort/Status Letters

The "Policy on the Issuance of Comfort/Status Letters" is designed primarily to assist parties who seek to cleanup and reuse brownfields. EPA headquarters and regional offices often receive requests from parties for some level of "comfort" that if they purchase, develop, or operate on brownfield property, EPA will not pursue them for the costs to clean up any contamination resulting from the previous use. The majority of the concerns raised by these parties can be addressed through the dissemination of information known by EPA about a specific property and an explanation of what the information means to EPA.

Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996

As part of the Omnibus Consolidated Appropriations Bill for Fiscal Year 1997 signed by President Clinton on September 30, Congress enacted the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996 (the "Act"). The Act includes lender and fiduciary liability amendments to CERCLA, amendments to the secured creditor exemption set forth in Subtitle I of RCRA, and validation of the portion of the CERCLA Lender Liability Rule that addresses involuntary acquisitions by government entities. The amendments made by the Act apply to all claims not finally adjudicated as of September 30, 1996, which include all cases that are in the process of being settled.

Underground Storage Tank (UST) Lender Liability Rule

EPA promulgated this rule clarifying when a lender may be exempt from UST liability.
September 7, 1995

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