Although Congress provided liability protection under CERCLA for BFPPs to encourage the
purchase and reuse of contaminated properties, the property they acquire may be subject to a
windfall lien pursuant to CERCLA § 107(r) if there are unrecovered response costs incurred by
the United States and the response action increases the fair market value of the property. Unlike
a CERCLA § 107(/) lien (aka “Superfund lien’), a windfall lien is not a lien for all the Agency’s
unrecovered response costs. The windfall lien is limited to the lesser of the Agency’s
unrecovered response costs or the increase in fair market value attributable to the EPA’s cleanup.
For more information, please refer to the Agency’s /nterim Enforcement Discretion Policy
Concerning “Windfall Liens” Under Section 107(r) of CERCLA July 16, 2003) (“Windfall Lien
Policy”) https:/Wwww.epa.gov/enforcement/interim-guidance-enforcement-discretion-
concerning-windfall-liens-cercla-section-107r]. Based upon the information now available to
the EPA Region, the Agency is not in a position today to determine whether the windfall lien
policy may apply to this Property.
