Encouraging Private Investment

  • United States
  • 08/09/2017
  • Copyright © 2017 Morgan, Lewis & Bockius LLP. All rights reserved.

The Task Force advocates using alternative and nontraditional approaches to promote the private financing of site cleanups through environmental liability transfer approaches and other risk management tools. The Task Force additionally recommends streamlining the process for the provision of comfort letters and execution of settlement agreements with third parties that are interested in purchasing and redeveloping contaminated sites but are concerned about potential liability and qualifying for the Bona Fide Prospective Purchaser (BFPP) protection added to CERCLA in the 2002 Brownfield Amendments. The Task Force also proposes to encourage third-party investment through optimizing EPA’s existing tools, including updating EPA’s position on the use of site-specific agreements with third parties at NPL sites and updating EPA’s model BFPP agreements, model Prospective Purchaser Agreements (PPAs), and model windfall lien settlement agreements. The Task Force further seeks to address the liability concerns of local governments by developing new “Local Government Enforcement Guidance” and model comfort letters to address concerns unique to those local governments that seek to acquire and redevelop Superfund sites.