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Commenting on Recommendations Coming Out of USEPA’s Superfund Task Force

12 Jun 2018 2:14 PM | Anonymous member (Administrator)

TIME SENSITIVE for BCONE MEMBERS:  If you want to comment on recommendations coming out of USEPA’s Superfund Task Force, our BCONE Advisory Board member Colleen Kokas of Environmental Liability Transfer, Inc. tells us that comments are due June 26, 2018  on the two listening sessions held on June 5, 2018. Please see her by-line below.

BCONE Board member Larry Schnapf, Esq. of New York represented BCONE’s interests in his comments delivered in the afternoon session of June 5.  You can view Larry's written comments to the EPA here.   

Summary of by EPA Listening Sessions

by Colleen Kokas, Environmental Liability Transfer

The USEPA Superfund Taskforce ‘s report includes 42 recommendations to explore in its quest to improve the Superfund program. On June 5, EPA conducted separate listening sessions on two of the recommendations from the Superfund Taskforce Report, specifically, “Exploring CERCLA Environmental Liability Transfer Approaches” and “New Tools to Encourage Private Investment in Superfund Cleanups and Reuse” .  EPA took oral comments during the sessions and will take written comment on these topics through June 26, 2018.  And although EPA posed specific questions on which to focus, it is open to any and all suggestions in these topic areas.

The first listening session,  “Exploring CERCLA Environmental Liability Transfer Approaches” (Recommendation #22) outlined the basics of liability transfer, illustrating the concept with 2 specific cases.  The session can be found at  https://www.epa.gov/enforcement/listening-sessions-superfund-task-force-recommendations (click on June 5, 2018 session).  The substantive portion of the presentation is only about 30 minutes.  The questions that EPA thought useful in developing an action plan include:

  • What tools are parties using to allocate risk?
  • What kind of sites are amenable to the ELT approach?
  • What factors make the use of an ELT more/less useful?
  • How can EPA encourage the use of ELTs in transactions?

The second listening session, “Exploring CERCLA Environmental Liability Transfer Approaches” (Recommendation #27) outlined the tools that EPA uses to support the transfer of contaminated sites.  Larry Schnapf, representing the interest of BCONE, provided many valuable comments during the presentation, many related to the current  The presentation can be found at https://www.epa.gov/enforcement/listening-sessions-superfund-task-force-recommendations#5.  The questions posed by EPA include:

  • What are the significant factors that impact a financial organization’s, purchaser’s, or other third party’s decision to invest in contaminated or previously-contaminated property?
  • What does the private sector see as barriers to investing in the cleanup and reuse of contaminated sites?
  • What are specific liability concerns of lenders/financial institutions, investors, purchasers or third parties that CERCLA does not address through its liability defenses and EPA does not address through its existing tools?
  • What new tools or approaches from EPA would help alleviate these concerns, including any specific language that could be added to existing tools to facilitate financing or acquisition?

The Superfund Taskforce has created a resource page that includes the report, quarterly accomplishments and information about future listening sessions.  See https://www.epa.gov/superfund/superfund-task-force.

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