Superfund Task Force Recommendation 23 Listening Session: Informing Parties About Streamlining the Cleanup and Redevelopment Process

The Environmental Protection Agency (“EPA”) held a listening session concerning the Superfund Task Force (“Task Force”) Recommendation 23 on June 13, 2018. Recommendation 23 focuses on tools designed to assist parties interested in redevelopment of contaminated sites.

The EPA created the Task Force in May 2017, which is comprised of senior representatives from various EPA offices associated with Superfund policy and enforcement. The Task Force intends to streamline and strengthen the Superfund program. In July 2017, the Task Force issued a report containing five goals and 42 recommendations.

The Task Force’s five goals are to: i) expedite the cleanup and remediation process; ii) reinvigorate responsible party cleanup and reuse; iii) encourage private investment; iv) promote development and community revitalization; and v) engage parties and stakeholders.

Phil Page from EPA’s Office of Site Remediation Enforcement, Policy, and Program Evaluation Division presented the listening session for Recommendation 23. The slide deck from the session is available here. Recommendation 23 aims to deliver an efficient and effective process to identify site-specific liability issues, to identify best manage practices to quickly respond to third-party concerns regarding liability, and to create a national team of redevelopment experts. Recommendation 23 discusses the use of Liability Issue Identification Tools (LIITs) that include site history and other relevant information, information regarding interested parties and Bona Fide Prospective Purchasers (BFPP), the potential need for a written agreement for a BFPP or other interested party and the legal consideration necessary to create an enforceable agreement, and community input.

For example, site history can provide whether an interested party has performed all appropriate inquiries under CERCLA section 101(40)(B), which would be necessary to enter into certain agreements. An interested party may also qualify as a BFPP under CERLCA sections 101(40) and 107(r). Interested parties need to be certain about potential liability concerns that a written agreement could address. In some instance, without an agreement, an interested party that begins a remediation may become liable for the full remediation. For this reason, it is important that any written agreement address an interested party’s source of financial assurance. In other instances, a written agreement may be unnecessary. For example, EPA can provide comfort or status letters that address potential liability concerns.

EPA opened the floor to public input at the end of this presentation. The lone speaker discussed some of the outstanding issues in EPA’s process. Her comments included concerns that sometimes there is a simple lack of resources to satisfactorily remediate and reuse a site, and property taxes can be a demotivating factor as well. She also discussed that timing issues can be a preventative factor because, oftentimes, real estate transactions move faster than the agency’s process.

EPA is seeking comments to Recommendation 23. In particular, EPA would like to hear from parties on what type of information parties need from EPA in a first meeting to discuss a potential project, what other general enforcement-related tools would be helpful to parties considering whether to pursue a project on contaminated property, and what other steps EPA should include to help identify and address liability concerns. The comment period runs until June 20. Interested parties may submit comments including the subject header “LS 23″ to OSRE-SFTF-listeningsession@epa.gov.

Gibbons blogs covering the other listening sessions are available at these links: Recommendation 16.2, Recommendation 27, Recommendation 22, and Recommendation 21.