substances present in soils, sludges, and contaminated waste originating from the Mohawk
Tannery, if not addressed by implementing the response actions selected in the Action
Memorandum and Addendum, will continue to pose a threat to human health and the
environment. The 2019 Action Memorandum primarily addressed tannery soil and sludge
contamination on the Mohawk Tannery northern and southern parcels. The Action Memorandum
anticipated that the NTCRA would be performed in connection with private party redevelopment
of the Site.
Reuse of the Property
Based on the information we have and that you provided, the EPA Region understands that
Blaylock, among other activities, intends to excavate approximately 17,000 cy of asbestos
containing material (ACM) from a City-owned Property and approximately 5,000 cy of ACM
from the Fimbel Door property and deposit this ACM into a separate capped cell to be built
adjacent to the eastern edge/wall of the capped area at the Site. Please note that, to ensure the
remedy remains protective of human health and the environment, any development must be
compatible with the EPA cleanup actions and institutional controls (ICs) designed to protect the
remedy and prevent unacceptable exposure to residual contamination. As of the date of this
letter, we have not identified any obvious incompatibility between the proposed use of the
Property as described to us and the EPA’s selected cleanup option. As your plans develop
further, please continue to discuss the development with us. The EPA recommends that you
consult with your own legal counsel and environmental professional to ensure that the proposed
reuse will not affect EPA’s cleanup response.
CERCLA’s Bona Fide Prospective Purchaser Liability Protection
The EPA understands that you are interested in information regarding the bona fide prospective
purchaser (BFPP) provision of CERCLA. Congress amended CERCLA in 2002 to exempt
certain parties who buy contaminated or potentially contaminated properties from CERCLA
liability if they qualify as BFPPs. The BFPP provision provides that a person meeting the criteria
of CERCLA §§ 101(40) and 107(r)(1), and who purchases the property after January 11, 2002,
will not be liable as an owner or operator under CERCLA. The statutory definition of a BFPP
also includes a party who acquires a leasehold interest in a property after January 11, 2002,
where the leasehold is not designed to avoid liability and the interested party meets certain
conditions and criteria.
The Agency has issued guidance discussing some of the BFPP criteria . See Enforcement
Discretion Guidance Regarding Statutory Criteria for Those Who May Qualify as CERCLA
Bona Fide Prospective Purchasers, Contiguous Property Owners, or Innocent Landowners
(“Common Elements”) (“Common Elements Guidance”) (July 29, 2019
(https://www.epa.gov/enforcement/common-elements-guidance). Based upon this situation, the
BFPP provisions apply to Blaylock. Note that a court, rather than the EPA, ultimately determines
whether a landowner has met the criteria for BFPP status.
