Deleted From the Superfund NPL Is Not Clean: What Buyers and Lenders Have to Check Before Closing
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Deleted From the Superfund NPL Is Not Clean: What Buyers and Lenders Have to Check Before Closing

NPL deletion is a rulemaking. What a buyer, lender, or developer has to verify on a delisted or partially delisted Superfund parcel before closing.

by iSi Environmental

Ringwood Mines/Landfill in Passaic County, New Jersey went onto the National Priorities List on September 1, 1983, came off it on November 2, 1994, and went back on in 2006, with no Hazard Ranking System rescoring required for the return trip. EPA’s April 18, 2006 news release gives the reason in one clause: “because contaminated material has been discovered since the site was taken off the NPL.” Ford went on to remove over 14,800 tons of waste from a parcel that had spent twelve years off the list.

Deletion from the NPL is a rulemaking recording that EPA, in consultation with the state, found one of three criteria at 40 CFR 300.425(e)(1) satisfied. It is a statement about the administrative record. What sits in the soil under a given parcel is a separate question, and whether the buyer takes on liability is a third.

Does deletion from the Superfund NPL remove CERCLA liability for a property owner?

No. EPA’s Close Out Procedures directive, OLEM 9320.2-23 (June 2022), states that “Deletion of a site or portion of a site does not affect cost recovery efforts under CERCLA Section 107.” The August 20, 2026 Federal Register notice adds that deletion “does not in any way alter EPA’s right to take enforcement actions, as appropriate.”

Liability under 42 U.S.C. 9607(a) attaches to the owner and operator of a facility notwithstanding any other provision or rule of law, subject only to the subsection (b) defenses. Title carries the exposure, and the statutory defenses have to be perfected and then maintained. In FY2025 EPA obtained $714.3 million in commitments from responsible and third parties.

What is the difference between partial deletion and full deletion from the NPL?

Partial deletion was created by a Notice of Policy Change published November 1, 1995 at 60 FR 55466. It removes a defined geographic area, an operable unit, or a single medium such as surface soil, while the rest of the site stays on the NPL. Full deletion removes the entire site and follows a Final Close Out Report.

A partially deleted site is still a listed Superfund site. As of August 20, 2026 there have been 161 partial deletions at 120 sites, against 466 full deletions and 1,337 sites still Final. The August 20, 2026 partial deletion at Hastings Ground Water Contamination, Nebraska covers groundwater at Operable Unit 2 and the Source Control Landfill Cap at Operable Unit 10, and the site stays listed with a “P” flag. Note that OLEM 9320.2-23 prints the rule at section 5.1 as 65 FR 55466. Volume 65 is calendar year 2000, and EPA’s guidance page has the correct cite.

Is a Superfund site marked Construction Complete or Sitewide Ready for Anticipated Use safe to buy?

Neither is a liability determination. EPA’s Close Out Procedures directive states that “Since institutional controls do not require physical construction, a site can achieve the construction completion milestone before ICs are in place.” EPA describes the other measure this way: “The SWRAU measure is an internal performance measure and is not a reporting of site-specific risk.”

Construction Completion means physical construction is finished. Site Completion, documented by a Final Close Out Report, requires all remedial decision documents and response actions complete and “All institutional controls are in place.” A Ready for Reuse determination holds only “so long as any use limitations established by EPA continue to be met.” Read the milestone as a schedule item and check the institutional control record separately.

Does a Superfund site have to be cleaned to unrestricted use before EPA deletes it?

No. Deletion requires only that one of the three criteria at 40 CFR 300.425(e)(1) be met. Where hazardous substances remain above levels allowing unlimited use and unrestricted exposure, 42 U.S.C. 9621(c) requires review no less often than each five years. EPA confirms deleted sites may still require five-year reviews.

What survives deletion is the operating reality of the parcel: institutional controls, activity and use limitations, environmental covenants, operation and maintenance obligations, and the review cycle. EPA conducted 302 five-year reviews in FY2025. The five-year review is the document that tells you whether the remedy still works. Calendar the next one and read the last one.

Can EPA put a deleted Superfund site back on the National Priorities List?

Yes, and without rescoring. 40 CFR 300.425(e)(3) provides that “All releases deleted from the NPL are eligible for further Fund-financed remedial actions should future conditions warrant such action. Whenever there is a significant release from a site deleted from the NPL, the site shall be restored to the NPL without application of the HRS.”

Ringwood is the demonstration. Before the 2006 relisting rule, EPA had already directed Ford back to the site several times. EPA’s guidance is explicit that relisting is not necessary for further response work, which the agency calls rare without publishing a frequency number.

What documents must be in a Superfund partial deletion docket?

At minimum five, per OLEM 9320.2-23 section 5.4.2: the Partial Deletion Justification, the No Action Record of Decision or Remedial Action Report for the affected areas, a map clearly delineating the boundaries of the areas proposed for partial deletion, the State Concurrence Letter, and an Administrative Record Index, all posted at regulations.gov under a site-specific Docket ID.

Pull the docket, not the press release. The map matters most: a deletion boundary is a line on a drawing, and a parcel can sit next to it. The open Fort Riley action is docket EPA-HQ-OLEM-2026-4886. Then confirm which medium came off, because soil deletion says nothing about groundwater.

How long is the public comment period on a Notice of Intent to Delete a Superfund site?

A minimum of 30 calendar days. 40 CFR 300.425(e)(4)(i) requires EPA to publish a notice of intent to delete in the Federal Register and take comment for at least that long. The state gets a separate 30 working day review under 300.425(e)(2) before publication. Public meetings are optional.

The August 20, 2026 notice covering Fort Riley Operable Unit 02 in Junction City, Kansas states: “Comments regarding this proposed action must be submitted on or before September 21, 2026.” That is the first Kansas NPL partial deletion action in the program’s 161-record history. If a notice is open on a parcel you have under contract, that window is the only pre-decisional chance to get a boundary question on the record.

What is a bona fide prospective purchaser and how many criteria must be met?

Eight. 42 U.S.C. 9601(40)(B) lists clauses (i) through (viii): disposal before acquisition, all appropriate inquiries, legally required notices, appropriate care, cooperation and access, institutional control compliance, response to information requests and subpoenas, and no affiliation with a liable party. The buyer must acquire after January 11, 2002 and prove each by a preponderance of the evidence.

All eight, or none. The Fourth Circuit held in PCS Nitrogen Inc. v. Ashley II of Charleston, LLC (Nos. 11-1662 et al., April 4, 2013): “Because a party must establish all eight factors under 42 U.S.C. section 9601(40) to qualify for a BFPP exemption from liability, this failure mandates denial of Ashley’s claim to BFPP exemption.” Ashley lost on clause (iv) for delaying the filling of sumps and failing to monitor a debris pile.

Clause (iv) is an operating obligation: reasonable steps to stop any continuing release, prevent any threatened future release, and limit exposure to previously released hazardous substances, so price it as a recurring cost. Clause (vi) catches developers, because a change of use beyond the certified use can also void a state closure instrument.

What Phase I ESA standard satisfies All Appropriate Inquiries in 2026?

ASTM E1527-21, and ASTM E2247-23 for forestland or rural property. EPA states both are consistent with the requirements of the final rule and can be used to satisfy the statutory All Appropriate Inquiries requirements. The rule sits at 40 CFR Part 312, published November 1, 2005 at 70 FR 66070 and effective November 1, 2006.

The report also has to carry the environmental professional attestations required by 40 CFR 312.21 and 312.22. Their absence is invisible to anyone who reads only the findings section. In Von Duprin LLC v. Major Holdings, LLC (7th Cir. Nos. 20-1711 and 20-1793, September 3, 2021), a purchaser lost BFPP status on one parcel because its Phase I omitted them.

How recent must a Phase I be to support a bona fide prospective purchaser defense?

The full inquiry must be conducted or updated within one year before the date of acquisition. Interviews, government records review, on-site visual inspection, and the environmental cleanup lien search must be conducted or updated within 180 days before acquiring ownership. Those are two clocks running on two different sets of work.

The 180-day clock is the one people miss. If a leasehold is taken first and title follows later, it runs from lease commencement, which is how the second parcel in Von Duprin failed. A Phase I ordered eleven months ago passes the one-year test and fails the 180-day components. Date the update work to the closing schedule, or move the closing.

What is a windfall lien and how large can it be?

Under 42 U.S.C. 9607(r)(2) through (4), the United States gets a lien on a bona fide prospective purchaser’s facility when unrecovered federal response costs exist. The lien “shall be in an amount not to exceed the increase in fair market value of the property attributable to the response action at the time of sale or other disposition.”

The trigger is the date the United States first incurs response costs, usually years before the buyer appears, and the lien scales with the cleanup that made the parcel marketable. Run the environmental cleanup lien search as a distinct scope item, not a line inside a title commitment.

Does a state No Further Action letter or Certificate of Completion clear a parcel for a lender in Kansas, Oklahoma, Missouri, Nebraska, Texas, or Colorado?

It varies sharply, and only two of the six give a lender anything statutory. Oklahoma’s Certificate of Completion protection at 27A O.S. 2-15-108(C)(1) reaches lenders, lessees, successors, assigns, and good-faith acquirers. Texas releases non-responsible parties from liability to the State under Health and Safety Code 361.610. Kansas, Nebraska, and Colorado provide no statutory release.

Nebraska’s statute runs the other way. Neb. Rev. Stat. 81-15,187 provides that the act is not an acceptance of liability by the State and that program participants indemnify and hold harmless the State of Nebraska. The agency is now DWEE. Colorado’s statute carries no liability language at all. DNR describes Missouri’s certificate as protecting current and future owners, which is an agency characterization rather than statutory text. Kansas issues a No Further Action determination under K.S.A. 65-34,169 with no statutory release, plus a Certificate of Environmental Liability Release under K.S.A. 65-34,177 et seq. that does run to the purchaser.

Texas voids protection if the use changes in a way that may increase risk (361.610(c)) and requires filing in county real property records no later than 90 days after issuance (30 TAC 333.10(d)). Oklahoma makes its certificate voidable if a file-stamped copy is not returned within 30 days (27A O.S. 2-15-107(A)(3)). Oversight costs money too: Missouri charges the lesser of actual cost or $100 per hour, Colorado $140.

Which states in the region have adopted the Uniform Environmental Covenants Act?

Two of six. Missouri adopted it as the Missouri Environmental Covenants Act, RSMo 260.1000 to 260.1039, effective January 1, 2008, with an activity and use limitation information system at 260.1033. Nebraska adopted it at Neb. Rev. Stat. 76-2601 to 76-2613 in 2005 and runs an Institutional Control Tracking System under 76-2608(d).

The other four use their own instruments, and the search has to match. Kansas uses Environmental Use Controls under K.S.A. 65-1,221 to 65-1,236, which run with the property and bind subsequent owners. Colorado’s covenants sit at C.R.S. 25-15-317 to 25-15-327 with a statutory registry at 25-15-323. Oklahoma requires a recordable deed notice at 27A O.S. 2-7-123 that runs with the land.

Texas costs people money here: 30 TAC 350.111 requires a deed notice, VCP certificate, or restrictive covenant filed in county real property records, and there is no statewide registry.

Four things in the federal record that a deletion notice will not tell you

EPA’s own Inspector General says the federal system of record often does not know what the institutional controls are. OIG Report 25-E-0020, March 19, 2025, reviewed 70 sites. Just over half of those with implemented institutional controls, and more than three quarters of those with planned controls, had no data in the Institutional Controls module. For planned controls that is 41 of 52 sites. Institutional controls are what survives deletion, so a gap in the federal database lands on your diligence scope.

Funding has fallen for a quarter century and EPA attributes slower deletions to it. GAO-25-108408, April 9, 2025: appropriations went from roughly $2.6 billion in FY1999 to roughly $537 million in FY2024. GAO reports: “According to EPA officials, the decline in the number of nonfederal sites deleted from the NPL was because of the decline in annual appropriations and the fact that the sites remaining on the NPL were more complex and took more time and money to clean up.” The deletions that do happen are drawn from the easier tail of the inventory.

The partial deletion rate has collapsed. EPA’s by-fiscal-year table shows 16 partial deletions in FY2021, then 6, 10, 6, 3 in FY2025, and 2 in FY2026 to date. Any claim of an accelerating deletion pipeline is contradicted by the agency’s own numbers. Kansas and Oklahoma have zero completed partial deletions across the full 161-record history.

EPA’s property-value argument does not rest on a property-value study. The Superfund Redevelopment Economics Notebook (updated February 2025) leads with business sales: in 2024 EPA gathered economic information for 718 sites in reuse, where 10,622 businesses generated $71.8 billion in estimated annual sales. Property value data is a self-reported sidecar contributed by local governments, with no before-and-after comparison, no control group, and no hedonic adjustment. Aggregate sales fell two years running in constant dollars, from $79.5 billion in 2022 to $71.8 billion in 2024, while the site count grew from 135 in 2011 to 718, which is sample expansion. Use the notebook for what a reuse site can support economically, and not to argue that a delisted parcel appreciates.

What this looks like as a closing checklist

Pull the deletion docket, read the boundary map against your legal description, and confirm which medium came off. Read the most recent five-year review and calendar the next one. Search the correct covenant instrument for that state, at the county level in Texas. Run the cleanup lien search and ask about 9607(r) by name. Order the Phase I to E1527-21 or E2247-23, confirm the 40 CFR 312.21 and 312.22 attestations are in it, and date the 180-day components to the closing schedule. Record the state closure instrument inside its statutory window, then price the clause (iv) obligations as an annual operating line. See also our post on the EPA Superfund Task Force results.

iSi Environmental performs Phase I Environmental Site Assessments to ASTM E1527-21 across Kansas, Oklahoma, Missouri, Nebraska, Texas, and Colorado, including the All Appropriate Inquiries documentation a bona fide prospective purchaser defense depends on and the file review that shows whether an institutional control attaches to your parcel. If you have a delisted or partially delisted parcel under contract, the 180-day clock is the reason to start that review now. We Plug In. You Level Up.

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