EPA's recent letter to the Long Beach City Attorney's office is worth reviewing, as the agency prepares to release its examination of potential contaminations at Los Cerritos wetlands. The text follows:
Richard Anthony
Office of the City Attorney
Re: Reasonable Care Requirements, LCW Oil Operations, LLC Bixby "A" Site, 6433 East Second Street, Long Beach, California
I am writing in response to your inquiry concerning bona fide purchaser protection ("BFPP"), as defined in Section 101(40) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 D.S.C. §9601(40), in regard to the property referenced above. As you know, the D.S. Environmental Protection Agency, Region IX ("EPA"), is assessing the property as the LCW Oil Operations, LLC Bixby "A" Site (the "Site"). EPA understands that your interest in the Site is a 33-acre parcel of generally undeveloped land that is adjacent to potential wetlands. The assessment to determine the nature and extent of contamination at the Site may support a determination that additional response work may be required. At present, EPA is working with the current owner of the property, LCW Partners, LLC ("LCW"), and has provided notice of potential liability to several other parties that may have generated or disposed of hazardous substances at the Site.
Currently EPA is overseeing the generation of a detailed work plan for LCW to implement a complete assessment of the Site. EPA anticipates continued work with LCW and other potentially liable parties to ensure an appropriate response to any hazardous substances at the Site that pose a substantial threat to the public health and welfare, and the environment.
The BFPP provision states that a person that acquires property after January 11, 2002, and that otherwise meets the criteria of 42 D.S.C. §9601(40) is protected from CERCLA liability. To qualify as a bona fide prospective purchaser, a person must (among other requirements) take "reasonable steps" with respect to stopping continuing releases, preventing threatened future releases, and preventing or limiting human, environmental or natural resources exposure to earlier releases. You have inquired as to what actions should be taken by an owner of the Site to satisfy the "reasonable steps" criterion.
EPA's assessment of the site may identify a number of environmental concerns that pose a substantial threat of a release of hazardous substances from the Site. Based on the information that EPA has evaluated to date, EPA believes that the actions stated below may comprise appropriate reasonable steps to mitigate exposures to hazardous substances at the Site and meet that requirement to support BFPP status for a new owner of the Site. The reasonable steps that EPA suggests include:
- Provide access for all assessment and response activities of EPA, LCW or other parties liable for the potential PCB contamination at the Site, and for natural resource trustees;
- Not exacerbate potential contamination conditions by undertaking earth movement or disposing of other waste materials at the Site without consulting with state or federal environmental agencies, including EPA through the course of its assessment and potential response at the Site; and
- Perform reasonable and diligent actions as may be required to maintain the efficacy of any indemnification provided by LCW among the terms of any land transfer.
This letter does not provide a release from CERCLA liability, but only provides information with respect to reasonable steps based on the information EPA has available to it.
This letter is based on the nature and extent of contamination known to EPA at this time. If
additional information regarding the nature and extent of hazardous substance contamination at the Site becomes available, additional actions may be necessary to satisfy the reasonable steps criterion. An owner must be aware of the condition of his property so that the owner is able to take reasonable steps with respect to any hazardous substance contamination at or on the Site. In particular, if new areas of contamination are identified, a bona fide purchaser must ensure that reasonable steps are undertaken to prevent or limit exposure.
For more information on reasonable steps, see the EPA document titled "Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability" (also known as the "Common Elements Guidance") March 6,2003. The full text of this guidance can be found at: http://www.epa.gov/compliance/resources/policies/cleanup/ superfund/common-elemguide.pdf.
Please note that the bona fide purchaser provision has a number of conditions in addition to the "reasonable steps." Taking reasonable steps and many of the other conditions are continuing obligations of the bona fide prospective purchaser. You may need to assess whether you satisfy each of the statutory conditions for the bona fide prospective purchaser provision and continue to meet the applicable conditions. Additionally, despite the bona fide purchaser protection, EPA may have a "windfall lien" on the property pursuant to Section 107(r) of CERCLA, 42 D.S.C. §9607(r), to the extent that EPA's response action increases the fair market value of the property. The windfall lien is limited to the increase in fair market value attributable to EPA's response action, up to the sum of EPA's unrecovered response costs. EPA currently has no information to suggest that EPA's actions have increased the value ofthe Site to support perfecting a windfall lien. The anticipated performance of the assessment and necessary response by liable parties should, nonetheless, significantly reduce any EPA costs that otherwise could be secured by perfecting a windfall lien.
EPA hopes that this letter is useful to you. If you have any questions or wish to discuss this matter further, please feel fee to contact me.
Daniel A. Meer,
Assistant Director
Response, Planning and Assessment Branch
Environmental Protection Agency, Region 9
Joe Segura, a mild-mannered reporter for a major metropolitan newspaper, has covered Gotham City, er Long Beach, for 34 years. During his very, very long -- endless -- tenure, he's covered almost every beat, and he was the main writer for BeachWeek, which focused on life and lifestyles of the shoreline communities from downtown Long Beach to the Huntington Beach pier.
Of course the Mayor will volunteer to pay all the clean up costs. It is just taxpayer money. The seller and the broker are his friends.
It is not like LB is bankrupt or anything... Oh, they are?
This idiocy is why our city is falling apart AND bankrupt. They love to waste our hard earned money.