Pacific Southwest, Region 9
Serving: Arizona, California, Hawaii, Nevada, Pacific Islands, Tribal Nations
Policy and Guidance
Related National Policy and Guidance
The information below highlights important EPA policy and guidance that will assist in the redevelopment of a Superfund site. This information has been organized into three broad categories.
Legal Guidance on Reuse
The following legal guidance are important because they explain how to obtain federal Superfund liability protection/limitations before you purchase a Superfund site. Specifically, they will help you understand criteria you must meet in order to qualify for 'bona fide prospective purchaser' status. In addition, because a current Superfund lien may have been filed on the site, or a Windfall Lien may arise upon purchase, the guidance below explains under what circumstances a Windfall Lien may be filed on your site, and EPA approaches for potentially resolving Windfall Lien concerns.
for Obtaining 'Bona Fide Prospective Purchaser' Status (Common Elements
Guidance) (PDF) (22 pp, 366K)
This guidance describes the eight criteria landowners must meet in order to qualify for 'bona fide prospective purchaser' status. Specifically, this guidance discusses the threshold criteria (criteria that must be met before purchasing the site) for performing 'all appropriate inquiry' and demonstrating no 'affiliation' with a liable party as well as related issues and continuing obligation criteria (criteria that a buyer must continue to meet to maintain the liability protection status).
Also see the Common Elements Reference Sheet (PDF) (6 pp, 204K).
- All Appropriate Inquiries Rule
Enacted November 1, 2006, "All appropriate inquiries" is the process of evaluating a property's environmental conditions. The rule is applicable to any party who may potentially claim protection from Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) liability as an innocent landowner, a bona fide prospective purchaser, or a contiguous property owner. This site provides background information as well as the language of the final rule.
Also view the Fact Sheet on All Appropriate Inquiries Final Rule (PDF) (2 pp, 81K).
- Windfall Lien Guidance (PDF) (32 pp, 386K)
This guidance 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. Further, it describes EPA's and DOJ's approach to settling Windfall Liens and discusses comfort/status letters and agreements that EPA may, with its discretion, provide to a 'bona fide prospective purchaser' in order to address the bona fide prospective purchaser's Windfall Lien concerns.
Also view the additional Windfall Lien Information (PDF) (4 pp, 157K).
- Frequent Questions about Legal Issues
A web page that highlights answers to several questions related to legal issues associated with the redevelopment of Superfund sites. Issues discussed include Superfund and Windfall Liens and criteria for establishing 'bona fide prospective purchaser' status.
General Reuse Guidance
The following are summaries of documents and links that contain additional information potentially relevant to your redevelopment project.
- 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" concerning the status of the cleanup, the reasonable steps that must be followed in order to maintain liability protection/limitations under the 'bona fide prospective purchaser' provision, and/or the status of any EPA liens.
Also view the Comfort/Status Letters Fact Sheet (PDF) (20 pp, 988K).
- Additional Superfund Redevelopment Initiative Guidance & Policy
Provides descriptions and, when available, links to numerous additional documents relevant to Superfund redevelopment made available by the National Superfund Redevelopment Program.
- Superfund Cleanup Enforcement Policy & Guidance
Provides links to numerous Superfund cleanup enforcement policy and guidance documents, including documents on consent decree procedures, cost recovery, institutional controls, etc.
- Tools & Resources
A web page created by EPA Region 9 that describes a variety of tools and resources provided by Region 9 and the national Superfund Redevelopment Program to support Superfund site redevelopment. Issues and services discussed include legal issue clarification, liability clarification, EPA documentation to indicate "Ready for Reuse" status, support services for community-based site redevelopment planning, and EPA support to return clean but vacant properties to productive use.
Reuse Guidance on Technical Issues
The following technical guidance documents are primarily for EPA and state remedial project managers. However, because these documents discuss EPA policy on tools for incorporating future land use considerations into the remedy decision making process and Ready for Reuse determinations, you may be interested in certain portions of these documents. For instance, an understanding of EPA's reuse assessment process may assist you in discussions with EPA regarding how a site may ultimately be remediated and any potential limitations on how the site may be used in the future.
- Land Use in the CERCLA Remedy Selection Process (PDF) (11 pp, 915K)
This 1995 directive presents a framework for considering land use in making remedy selection decisions under CERCLA at Superfund sites.
- Reuse Assessments: A Tool to Implement the Land Use Directive (PDF) (24 pp, 83K)
This 2001 document reaffirms the original Land Use Directive (see above) and expands upon EPA's framework for developing future land use assumptions when making remedy selection decisions for Superfund sites.
- Guidance for Preparing Superfund Ready for Reuse (RfR) Determinations (PDF)
(13 pp, 166K)
Provides information on the use and preparation of RfR determinations at Superfund sites including what information is sufficient to support the RfR decision and how to document the RfR determination.
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