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EPA; DOJ Issue Interim Cercla ‘Windfall Lien’ Policy
Release Date: 07/23/2003
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(07/23/03) On July 16, EPA and the U.S. Department of Justice issued an enforcement discretion policy explaining when EPA would, and would not, seek compensation for increasing a property’s market value through a Superfund response action. Under new Section 107(r) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “Superfund”), added by the recent Brownfields Amendments, bona fide prospective purchasers are not liable as owner/operators for CERCLA response costs, but the property they acquire may be subject to a windfall lien if an EPA response action has increased the fair market value of the property. The interim policy first explains that, absent Superfund response action at a site, the United States has no windfall lien on that property. For properties that have been the subject of an EPA response action, the policy: sets forth factors that may lead EPA and DOJ to assert a windfall lien and provides examples of a number of situations where EPA will generally not pursue a windfall lien; describes EPA’s and DOJ’s approach to settling windfall liens; and discusses letters and agreements that EPA may provide to prospective purchasers to address any windfall lien concerns. Samples of these documents are provided as attachments to the policy at: https://www.epa.gov/compliance/resources/policies/cleanup/superfund/interim-windfall-lien.pdf . A frequently asked questions document is available at: https://www.epa.gov/compliance/resources/policies/cleanup/superfund/interim_windfall_lien_faq.pdf .
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