EPA Revises CERCLA Comfort/Status Letter Policy
Posted on November 16, 2015
On August 25, 2015, the EPA issued a memorandum setting forth its revised Superfund comfort/status letter policy, as well as three updated model Superfund comfort/status letters for parties interested in acquiring contaminated, potentially contaminated, and formerly contaminated properties for reuse and redevelopment.
Comfort/status letters are one means EPA uses to address concerns regarding properties that may present CERCLA cleanup and liability issues. The letters are purely informational; they do not provide any EPA assurance against enforcement action. However, by summarizing information contained in the EPA’s files regarding contamination and cleanup at the property, the letters can help interested parties make informed decisions regarding potential CERCLA liability. In addition, EPA’s policy indicates that the agency’s comfort/status letters may suggest property-specific reasonable steps a party may take at the property to achieve or maintain liability protections under the Bona Fide Prospective Purchaser (BFPP) provision of CERCLA (42 U.S.C. § 9601(40)), a key concern of potential brownfield developers following a 2013 Fourth Circuit decision holding that owner failed to establish bona fide prospective purchaser (BFPP) exemption from liability. See PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161 (4th Cir. 2013) cert. denied, 134 S. Ct. 514 (2013).