All About Superfund Brownfields: Remediation and CERCLA, SARA, Superfund Guidance
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All About Superfund Brownfields: Remediation and CERCLA, SARA, Superfund Guidance
Brownfields are abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination. Scroll on for LOTS of guidance and regulations!
More than 35 States now have voluntary cleanup programs (VCPs) under which private parties that voluntarily agree to clean up a contaminated site are offered some protection from future State enforcement action at the site, often in the form of a "no further action" letter or "certificate of completion" from the State. Such State commitments do not affect EPA's authority to respond to actual or threatened releases of hazardous substances under CERCLA.
EPA does, however, encourage its Regions to use the negotiation of voluntary cleanup program Superfund Memoranda of Agreement (SMOAs) as an opportunity to define a division of labor between the Region and the State by defining what kinds of sites fall within the SMOA. EPA has developed a framework for these negotiations (see memorandum below). This framework provides suggested language for stating a Region's intended treatment of sites participating in a VCP program covered by a SMOA.
Interim Approaches for Regional Relations with State Voluntary Cleanup Programs, Memorandum, November 14, 1996 [ HTML (6K) | PDF (27K) 4 pages ]
New Tax Incentive to Spur the Cleanup and Redevelopment of Brownfields
On August 5, 1997, President Clinton signed the Taxpayer Relief Act (HR 2014/PL 105-34), which included a new tax incentive to spur the cleanup and redevelopment of brownfields in distressed urban and rural areas. The Brownfields Tax Incentive builds on the momentum of the Clinton Administration's Brownfields National Partnership Action Agenda, announced in May 1997. The National Partnership outlines a comprehensive approach to the assessment, cleanup, and sustainable reuse of brownfields, including specific commitments from 15 Federal agencies. The Brownfields Tax Incentive will help bring thousands of abandoned and under-used industrial sites back into productive use, providing the foundation for neighborhood revitalization, job creation, and the restoration of hope in our nation's cities and distressed rural areas.
Tax-Incentive Fact Sheet [ HTML | PDF (16K) 2 Pages ] EPA Document Number: EPA 500-F-97-155 August 1997 Eligibility Fact Sheet [ HTML (11K) | PDF (18K) 3 pages EPA Document Number: EPA 500-F-98-140 June 1998 Public Law 105-34 Subtitle E of Title IX [ HTML | PDF (13K) 4 Pages ] List of Eligible Pilots [ HTML | PDF (9K) 1 Page ]
Cumulative Risk Assessment Guidance-Phase I Planning and Scoping
The practice of risk assessment within the Environmental Protection Agency (EPA) is evolving away from a focus on the potential of a single pollutant in one environmental medium for causing cancer toward integrated assessments involving suites of pollutants in several media that may cause a variety of adverse effects on humans, plants, animals, or even effects on ecological systems and their processes and functions.
Memorandum: July 1997 [ HTML (6K) | PDF (22K) 2 pages ] Guidance: July 1997 [ HTML (32K) | PDF (131K) 12 pages ]
Liability and Other Guidance
EPA has been working with States and municipalities to develop guidance that will provide some assurance that, under specified circumstances, prospective purchasers, lenders, and property owners do not need to be concerned with Superfund liability. These guidance clarify the liability of certain parties' association with and activities at a site, and clearly state EPA's decision to use its enforcement discretion not to pursue such parties. EPA anticipates that these clear statements of the Agency's position will alleviate any concerns parties may have in becoming involved in the cleanup and redevelopment of previously used properties.
Fact Sheet: April 1997 [ HTML file (8K) | PDF (11K) 2 pages ] Publication Number: EPA 500-F-97-104
Land Use in the CERCLA Remedy Selection Process
EPA issued directive encouraging discussions among local land use planning authorities and communities to be conducted early in the site assessment process. This directive ensures that site remedies meeting future land use objectives and protecting human health and the environment are selected.
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.
Memorandum: November 12, 1996 [ HTML file | PDF file (6K) 2 pages ] Fact Sheet [ HTML file | PDF file (7K) 1 page ] Policy: November 12, 1996 [ HTML file | PDF file (61K) 18 pages ]
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.
Policy on CERCLA Enforcement Against Lenders and Government Entities That Acquire Property Involuntarily
EPA issued guidance describing the Agency's policy of not pursuing for cleanup costs those lenders who provide money to an owner or developer of a contaminated property, but do not actively participate in the daily management of the property. The guidance also clarifies what is meant by "involuntary" acquisition by a government entity.
Federal Register (Volume 60, Number 237)[Notices]: December 11, 1995 [ASCII text (11K) | PDF(54K) 3 pages ]
Underground Storage Tank (UST) Lender Liability Rule
EPA promulgated this rule clarifying when a lender may be exempt from UST liability.
Federal Register (Volume 60, Number 173)[Rules and Regulations ]: September 7, 1995 [ASCII text (178K) | PDF (263K) 75 pages]
Guidance on Deferral of NPL Listing Determinations While States Oversee Response Actions
Memorandum and Guidance: August 1995 [ASCII text (69K) | PDF (223K) 38 pages | Word 6.0 (122K)] EPA Document Number: EPA/540/F-95/002 OSWER Directive Number: 9375.6-11
In 1977, Congress enacted the Community Reinvestment Act (CRA) to require banks, thrifts, and other lenders to make capital available in low- and moderate-income urban neighborhoods, thereby boosting the nation's efforts to stabilize these declining areas. Concern over potential environmental and financial liability for cleaning up these sites has made lenders, developers, and property owners reluctant to finance redevelopment of these properties. Rather than reuse former urban industrial sites, businesses have instead moved to suburban or rural "greenfields," which carry fewer perceived risks to development.
In January 1995, EPA announced its original Brownfields Action Agenda in response to the widespread economic development obstacles posed by urban brownfields. The (1995-1996) Brownfields Action Agenda encouraged a cooperative approach by EPA, lenders, and prospective purchasers to ease fears of financial liability and regulatory burdens. EPA has coordinated with the Office of the Comptroller of the Currency to create incentives within the CRA regulations for economic revitalization and development.
EPA Document Number: EPA 500-F-97-100 Fact Sheet, April 1997 [ HTML | PDF (8K) 2 Pages ]
Region 1 of the EPA has a page that offers guidance to download. This guidance combines the goals of two major regional initiatives, the Superfund Beneficial Reuse Initiative and the Comprehensive Ground Water Protection Strategy. As part of the Superfund Beneficial Reuse Initiative, this guidance is intended to result in more informed and focused decision-making and more common-sense, cost-effective ground water cleanups which will facilitate the beneficial reuse of contaminated parcels. Click below to go to that site.