In the past, EPA’s cleanup enforcement program has provided relief from Superfund liability, where appropriate, to developers through tools such as prospective purchaser agreements (PPAs) and comfort/status letters.
In 2002, Congress amended the Superfund statute and allowed bona fide prospective purchasers (BFPPs) to avoid Superfund liability if they meet certain criteria. Because of these amendments, the enforcement tools provided in the past to limit liability are no longer necessary. However, EPA may nevertheless be willing to provide a developer with a PPA or comfort/status letter for a site where the developer agrees to incorporate sustainable development concepts into the project.
Other laws requiring cleanup, such as the Resource Conservation and Recovery Act (RCRA) corrective action and underground storage tank (UST) cleanup provisions, do not have liability defenses for prospective purchasers like those found in Superfund. Accordingly, EPA may be willing to enter into PPAs or provide comfort/status letters at sites undergoing RCRA corrective action or cleanups from UST releases to promote sustainable development.