EPA Outlines Use of CERCLA Section 107(r) Windfall Liens at Brownfield Sites

摘要

The Small Business Liability Relief and Brownfields Revitalization Act (called the Brownfield Amendments), enacted in January 2002, amended CERCLA to provide important liability limitations for certain purchasers of brownfield sites. The amendment's new Section 107(r) bona fide prospective purchaser provision provides landowner liability protection, and limits the amount of cleanup reimbursement that EPA can recover from purchasers via a windfall lien. The windfall lien provision allows the government to place a statutory lien on property where the United States has spent money on a cleanup in the amount of the increased fair market value that is attributed to EPA's cleanup efforts. [Unlike a CERCLA Section 107(1) lien, it is not a lien for all of EPA's unrecovered response costs.] EPA has issued a new interim policy explaining when and how EPA and the U.S. Department of Justice (DOJ) will apply the new windfall lien provision. Issued July 16, 2003 and entitled "Interim Enforcement Discretion Policy Concerning 'Windfall Liens' Under Section 107(r) of CERCLA," the guidance covers: 1) situations when EPA will and will not pursue windfall liens, and 2) the agency's approach to settling windfall liens.