Superfund Listening Session - Revising EPA’s “Common Elements” Guidance to Encourage Third Party Investment

SFTF Recommendation No. 29: Revise or Develop New Enforcement Guidance to Support the Cleanup and Reuse of Contaminated Sites: Propose potential revisions to the 2003 "Common Elements Guidance" based on case law developments and lessons learned by EPA and the private sector (Goal 3/Strategy 3).

Date of Event: June 11, 2018.

The goal of this recommendation is to comprehensively revise “Common Elements” based on the experience the Agency has gained through discussions with stakeholders, issuance of numerous other guidance documents, an understanding of relevant case law, and continuous site-specific work on issues related to the landowner liability protections. The revision is intended to provide greater certainty and significantly improve the guidance’s utility for developers, lenders, investors, and other third parties to identify or create opportunities for new investment in cleaning up contaminated sites.  Information on the listening session series.

On this page:

• Overview of Session Topic and Issues
• Who Should Attend
• Questions to Session Participants for Verbal and Written Remarks
• Presenter
• Information relevant to this Listening Session

Overview of Session Topic and Issues

The “Common Elements” Guidance, the “Interim Guidance Regarding Criteria Landowners Must Meet in Order to Quality for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability (“Common Elements”), issued March 6, 2003, is EPA’s core enforcement guidance document that describes the overlapping threshold criteria and ongoing obligations that parties must meet to satisfy one of the landowner liability protections (Bona Fide Prospective Purchaser, Contiguous Property Owner, Innocent Landowner). The 2003 guidance is “interim,” and when issued, contemplated revisions “as EPA gains more experience implementing the Brownfields Amendments (2002 amendments to Superfund).”

An internal EPA workgroup is currently meeting regularly and discussing revisions to the guidance. The workgroup will review all verbal and written remarks received as a part of this listening session and will utilize these remarks to improve the document’s utility for stakeholders.

This listening session will explore proposed revisions to the 2003 “Common Elements” guidance and will solicit input from stakeholders. The presentation by EPA staff will provide details on the proposed updates to sections of the guidance covering the following:

• obligations to take “reasonable steps” with respect to hazardous substance releases,
• complying with land use restrictions, and
• not impeding the effectiveness or integrity of institutional controls.

Further, the session will cover a proposed new section in the guidance on the requirement that bona fide prospective purchasers and innocent landowners not dispose of hazardous substances after property acquisition.

Questions to Session Participants for Verbal and Written Remarks

The Agency would like participants of this listening session to focus their remarks, both verbal and written, on the following questions and topics:

1. What changes to the 2003 “Common Elements” guidance will better serve to assist with new third-party investment in contaminated sites?
2. Are there particular updates/changes you would like to see in a revised “Common Elements” guidance that would provide better clarity/certainty for third parties in cleaning up contaminated sites?

Who Should Attend

This listening session is open to the general public. Anyone interested in how EPA is revising its core enforcement document on the landowner liability protections, including members of the redevelopment community, community group and non-profit organizations, including environmental justice, and federal state and tribal agency staff involved with these issues.

Presenter

• Craig Boehr (OECA/Office of Site Remediation Enforcement/Policy and Program Evaluation Division)

Relevant Information Related to the Listening Session

• Superfund Task Force website
• Superfund enforcement website
• EPA’s 2003 “Common Elements” Guidance and related materials (Superseded 7/29/2019)

Visit Listening Sessions - Superfund Task Force Recommendations for more information on the series of eight listening sessions.