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 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.

Enforcement and Compliance Incentives

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 expand the use of the following tools when there is a commitment from a developer or other party to implement ER3. Additional incentives may be identified as we gain more experience with the ER3 initiative.

Enforcement Tools

1. Prospective Purchaser Agreements (PPAs)

EPA uses PPAs to clarify and settle the responsibilities and/or liabilities of a prospective purchaser to enable the reuse of contaminated properties.

Under existing EPA policy, a PPA may be appropriate if there are significant benefits to the community and the environment – 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.

2. 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 clean up 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 clean up action at the property.

3. Green Building Supplemental Environmental Projects (SEPs) on Contaminated Properties

Using SEPs to “green” the reuse of a contaminated site can also serve as an ER3 incentive. To obtain a green building SEP, a defendant/respondent would agree to support the use of environmentally beneficial “green building” technologies at the redevelopment of a nearby contaminated property in exchange for penalty mitigation credit.

For more information on the green building SEP concept please refer to the fact sheet entitled “Supplemental Environmental Projects: Green Building on Contaminated Properties (PDF).” (8 pp, 67 KB, about PDF)

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