Appendix 5 Issuance of CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser

AuthorAllison Rumsey/Michael Daneker
Page 239
November 27, 2006
U.S. Environmental Protection AgencyU.S. Department of Justice
SUBJECT:Issuance of CERCLA Model Agreement and Order on Consent for Removal
Action by a Bona Fide Prospective Purchaser
FROM:Susan E. Bromm, Director /s/
Office of Site Remediation Enforcement
U.S. Environmental Protection Agency
Bruce S. Gelber, Chief /s/
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
TO:Director, Office of Site Remediation and Restoration, Region I
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Site Cleanup Division, Region III
Director, Waste Management Division, Region IV
Directors, Superfund Division, Regions V, VI, VII and IX
Assistant Regional Administrator, Office of Ecosystems Protection and
Remediation, Region VIII
Director, Office of Environmental Cleanup, Region X
Director, Office of Environmental Stewardship, Region I
Director, Environmental Accountability Division, Region IV
Regional Counsel, Regions II, III, V, VI, VII, IX, and X
Assistant Regional Administrator, Office of Enforcement, Compliance, and
Environmental Justice, Region VIII
Deputy and Assistant Chiefs, Environmental Enforcement Section, U.S.
Department of Justice
Chief, Deputy Chief, and Assistant Chiefs, Environmental Defense Section,
U.S. Department of Justice
We are pleased to issue the CERCLA Model Agreement and Order on Consent for
Removal Action by a bona fide prospective purchaser (“BFPP”) (BFPP Removal Model
Agreement). This model is part of EPA’s continuing effort to promote land reuse and
revitalization by addressing potential liability concerns associated with acquiring contaminated
Page 240 Superfund Deskbook
properties. This model responds to requests from parties who enjoy liability protections
provided for bona fide prospective purchasers by Sections 101(40) and 107(r) of the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(“CERCLA”), 42 U.S.C. § 9601, et seq. as amended by the Brownfields Amendments, who will
perform removal work at sites of federal interest that they own or intend to acquire, where EPA
may advise on the extent of cleanup required and oversee the work, and where the removal work
will exceed the “reasonable steps to prevent releases” obligation upon which their BFPP status
In May 2002, EPA issued a policy stating that, in most cases, the Brownfields
Amendments make agreements that provide a covenant not to sue (prospective purchaser
agreements or PPAs) from the federal government unnecessary. Bona Fide Prospective
Purchasers and the New Amendments to CERCLA, May 31, 2002 ( BFPP Policy). EPA
continues to believe that PPAs are no longer necessary in the vast majority of cases, because
BFPPs may now purchase property with knowledge of contamination and not acquire CERCLA
liability as long as they meet certain BFPP criteria. In the May 2002 BFPP Policy, the Agency
recognized that, in limited instances, the public interest would be served by entering into PPAs
or some other form of agreement with purchasers of contaminated property. One of the
instances identified in the BFPP Policy as justifying a federal covenant not to sue was where a
significant environmental benefit will be derived from the project in terms of cleanup. This
model is intended to serve as the vehicle for providing a federal covenant not to sue and
contribution protection for BFPPs who will perform removal work exceeding reasonable steps at
a site of federal interest. The model offers an “existing contamination” covenant like that
offered in the 1999 Model PPA, and includes appropriate provisions associated with the
performance of removal work. In addition, it provides a release and waiver of any windfall lien.
The model conforms to other recently issued models insofar as certain provisions have been
standardized from model to model. It is unique, however, in that the settling party already has
statutorily conferred liability protection as a BFPP.
The attached BFPP Removal Model Agreement is intended for removal sites where there
is a federal interest and the work required is complex or significant in extent. For this reason,
this Model includes provisions relating to, e.g., reimbursement of oversight costs, work takeover,
and financial responsibility, designed to ensure that the work is completed in a timely and proper
manner by the BFPP. Any determination to omit one or more of these provisions should be
based on consideration of specific factors, including the nature and extent of the work, the risks
presented by not including a specific provision in the agreement, the benefits of having the
removal performed by the BFPP, and the benefits to the BFPP of cleaning up the site with EPA’s
direct oversight and involvement, including, e.g., any enhancement to the value or marketability
of the site or property that would flow from a cleanup performed with EPA’s oversight and
involvement. Omissions from the model, other than designated optional provisions, should be
discussed with Headquarters and Department of Justice prior to that omission being offered or
agreed to.
Issuance of CERCLA Model Agreement Page 241
For federal interest sites where BFPPs wish to satisfy their reasonable steps requirements
but do not intend to undertake a removal action with EPA oversight, EPA may continue to
provide comfort/status letters suggesting site-specific reasonable steps where appropriate.
Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide
Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on
CERCLA Liability (“Common Elements”), March 6, 2003. As stated in the Common Elements
Guidance, such comfort/status letters are limited to sites with significant federal involvement
such that the Agency has sufficient information to form a basis for suggesting reasonable steps.
In implementing this new model for removal work by BFPPs, Regions are asked to
coordinate with EPA Headquarters and with the Department of Justice early in the process. Any
Region settling with a BFPP for removal work at a property owned by that BFPP will be
expected to consult with Headquarters on the settlement being proposed. In addition, any
Region significantly deviating from this model for settlement with a BFPP, other than using the
previously published Model for Waiver of the Windfall Lien, will be required to seek
Headquarters’ concurrence from the Director of Regional Support Dvision. The Department of
Justice must approve and sign each of these settlements.
Please address any questions on this model to Helen Keplinger of the Regional Support
Division at (202) 564-4221 or Tom Carroll of the Environmental Enforcement Section at (202)
514-4051. This model is available on EPA’s Web site at
cc: Earl Salo, Acting Associate General Counsel for Solid Waste and Emergency Response
Juliette McNeil, Director, Financial Management Division
Office of Regional Counsel Branch Chiefs, Regions I-X
CERCLA Settlement Lead Region Workgroup
David Lloyd, Director, Office of Brownfields Cleanup and Redevelopment

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