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Superfund Task Force Recommendations and Accomplishments: Goal 3

Related Task Force Links

Encouraging Private Investment

The Task Force employed four strategies to encourage private investment:

  • Use alternative and non-traditional approaches for financing site cleanups
  • Streamline the process for comfort letters and settlement agreements with third parties
  • Optimize tools and realign incentives to encourage third-party investment
  • Address liability concerns of local governments

To learn how EPA will integrate the work completed under the Task Force into the Superfund Program, see:

On this page:

Recommendation 22: Explore Environmental Liability Transfer (ELT) Approaches and Other Risk Management Tools at PRP cleanups

  • Memorandum on use of “look-first” approach to CERCLA settlement agreements 
    On January 16, 2020, EPA issued the "Use of the “Look-First” Approach in Comprehensive Environmental Response, Compensation, and Liability Act Settlement Agreements Involving Third Parties" to address the use of a "look-first" provision in settlement agreements under CERCLA involving potentially responsible parties, the government, and a third-party who agrees to perform cleanup work at a site.
     
  • External Stakeholder Outreach on Environmental Liability Transfer and “Look First” Provisions in Superfund Settlements
    Over the past two years, EPA reached out to external stakeholders and received feedback on various business models, products, and the current industry climate for the transfer of cleanup responsibility to analyze the benefits, challenges, and other considerations associated with financial risk management tools. In June 2018 and June 2019, EPA held public listening sessions on (1) alternative and non-traditional approaches for financing and performing Superfund site cleanups to accelerate site redevelopment and reuse, and (2) to raise awareness of the Agency’s use of “look first” provisions in Superfund settlements involving third parties that assume cleanup responsibilities. EPA is in the process of analyzing the remarks received from the June 2019 listening session. After completing the review, EPA plans to draft a memorandum for EPA Regions on the use of the “look first” approach in CERCLA settlement agreements.

    Use of the “Look-First” Approach in Comprehensive Environmental Response, Compensation, and Liability Act Settlement Agreements Involving Third Parties
    Listening Sessions – Superfund Task Force Recommendation 22

Recommendation 23: Ensure Timely Use of Site-Specific Tools When Needed and Appropriate to Address Liability Concerns at Contaminated Sites

  • Developed an Internal Prospective Purchaser Inquiry Tool
    EPA developed the Prospective Purchaser Inquiry Tool (“PPI Tool”) to help EPA regional staff ask the right questions and use the right models to efficiently and effectively respond to questions from developers and other third parties interested in acquiring potentially contaminated property. Additionally, the Agency held a public listening session in June 2018 on the recommendation to gain insight and feedback from stakeholders.

    Listening Sessions – Superfund Task Force Recommendation 23

Recommendation 24: Create and Maintain an OECA Information Repository to Provide Access to Enforcement Information and Tools to Support Third-Party Cleanup and Reuse

  • Created Repository of Enforcement Tools and Revised Enforcement Website
    EPA established a special collection of comfort/status letters and other enforcement tools in SEMS that EPA staff can access when needed. Additionally, EPA has completed extensive revisions to its enforcement website to inform and facilitate third-party cleanup and reuse. EPA also has created an intranet site to provide EPA staff with general information on comfort status/letters, sample comfort/status letters, and information on the SEMS special collection of comfort/status letters and other enforcement tools.

    Superfund Enforcement web content
    "Addressing Liability Concerns to Support Cleanup and Reuse of Contaminated Lands"

Recommendation 25: Update EPA’s Position on the Use of Site-Specific Agreements with Third Parties at NPL Sites

  • Encouraging More Frequent Consideration of Third-Parties to Foster Cleanup and Reuse at NPL Sites
    In April 2018, EPA and DOJ issued a new policy memorandum titled, “Agreements with Third Parties to Support Cleanup and Reuse at Sites on the Superfund National Priorities List.” The memorandum encourages more frequent consideration of Bona Fide Prospective Purchaser Agreements (BFPPs) and Prospective Purchaser Agreements (PPAs), when appropriate, to foster cleanup and reuse of NPL sites.

    Agreements with Third Parties to Support Cleanup and Reuse at Sites on the Superfund National Priorities List

Recommendation 26: Revise EPA’s Model Agreements to Create More Opportunities for Settlement with Third Parties Interested in Cleaning Up and Reusing NPL Sites

  • Internal Cleanup and Reuse Case Tracking System
    EPA reinstituted its internal cleanup and reuse case tracking system to monitor site-specific progress and identify timely steps to resolve a party’s liability using EPA’s liability tools. In addition, EPA conducted outreach to Bona Fide Prospective Purchasers and other third parties to discuss ongoing liability concerns and potential new approaches to facilitate cleanup and reuse of contaminated properties. Based on this outreach and lessons learned from site-specific agreements, the Agency has identified potential revisions to the current model prospective purchaser and Bona Fide Prospective Purchaser agreements.

Recommendation 27: Identify Tools for Third Parties Interested in Investment or Other Opportunities Supporting the Cleanup or Reuse of NPL Sites

  • Held Public Listening Session and Meeting with External Stakeholder
    EPA conducted extensive outreach to a variety of stakeholders involved in the cleanup and redevelopment of Superfund sites. The Agency reached out to lenders, investors, purchasers, and other third parties to discuss ongoing liability concerns and the potential for new approaches to facilitate cleanup and reuse. Through these comprehensive efforts, EPA identified revisions to the model comfort/status letters under Recommendation 28 and changes to the Common Elements guidance under Recommendation 29.

    Listening Sessions – Superfund Task Force Recommendation 27

Recommendation 28: Provide Greater “Comfort” in Comfort/Status Letters

Recommendation 29: Revise or Develop New Enforcement Guidance to Support the Cleanup and Reuse of Contaminated Sites

Recommendation 30: Revise Federal Facility Enforcement Guidance

  • Revised Policy Towards Landowners and Transferees of Federal Facilities
    In May 2019, EPA issued a revision of the 1997 “Policy Towards Landowners and Transferees of Federal Facilities” to encourage redevelopment and reuse at federal facilities on the NPL. The revised policy supports the use of tools such as comfort letters and other agreements to address potential liability concerns of landowners and transferees who acquire federal property and aims to alleviate uncertainty regarding potential enforcement by the Agency for contamination existing as of the date of property acquisition.
     
  • Developed Model Language for Amending Federal Facility Agreements to Encourage Reuse and Redevelopment
    In July 2019, EPA transmitted to EPA regional offices model language for amending FFAs to encourage reuse and redevelopment at NPL federal facilities. The proposed language would place federal facility agreement provisions on hold in instances where a third party, rather than the federal entity, wants to do the cleanup. EPA developed two amendment options. In Option 1, EPA independently selects the remedy. In Option 2, the federal agency participates in remedy selection.

    Transmittal of Revised Policy Toward Landowners and Transferees of Federal Facilities to Encourage Cleanup and Reuse at Federal Facilities on the National Priorities List (NPL)
    Federal Facility Agreement Amendment Option 1
    Federal Facility Agreement Amendment Option 2

Recommendation 31: Develop New Local Government Enforcement Guidance to Address Concerns Raised by the Landowner Liability Provisions Potentially Applicable to Local Governments

  • Revising Fact Sheet to Address Local Government Potential Liability Concerns

    On June 11, 2020, the EPA issued the "Superfund Liability Protections for Local Government Acquisitions after the Brownfields Utilization, Investment, and Local Development Act of 2018" to address potential CERCLA liability concerns of local governments related to contaminated property acquisitions. The guidance focuses on CERCLA § 101(20)(D) as amended by the BUILD Act and also provides an overview of CERCLA’s liability framework and other protections that may apply to local government acquisitions of contaminated property. Through this guidance, the EPA is clarifying its enforcement intentions by describing circumstances when it may exercise its discretion to not pursue CERCLA enforcement actions against local governments that may fall within a category of liable parties under Section 107 of CERCLA. The guidance supersedes the 2011 factsheet titled "CERCLA Liability and Local Government Acquisitions and Other Activities."

    Superfund Liability Protections for Local Government Acquisitions after the Brownfields Utilization, Investment, and Local Development Act of 2018

Recommendation 32: Develop a Model Comfort/Status Letter and Other Tools to Address the Liability Concerns and Other Barriers Unique to Local Governments

  • Developing Model Comfort/Status Letter for Local Governments Acquiring Contaminated Properties
    EPA is drafting a local government-specific model comfort/status letter as a site-specific tool to facilitate and support local governments in the acquisition of contaminated properties. EPA expects the model comfort/status letter to be issued in 2020.
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