CERCLA Bona Fide Prospective Purchaser Defense: Securing and Maintaining Liability Protection

Strategies for Overcoming BFPP Defense Challenges and Restrictions

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, March 28, 2017
Recorded event now available

This CLE webinar will provide guidance to counsel for parties involved in the purchase of a contaminated site to secure and maintain the CERCLA bona fide prospective purchaser (BFPP) defense. The panel will offer best practices for redevelopment of contaminated sites in light of recent federal court decisions.


Prior to asserting a BFPP defense, purchasers must understand all of the potential pitfalls. The Fourth Circuit’s ruling in PCS Nitrogen v. Ashley II limits the availability of the BFPP defense and underscores the need for purchasers to tread carefully as they must successfully prove the required elements by a preponderance of the evidence in addition to fulfilling other statutory prerequisites.

The Ashley II decision combined with the Ninth Circuit’s decision in Voggenthaler v. Maryland Square L.L.C. and others on the BFPP defense have made real estate transactions involving BFPPs more complicated. These decisions put counsel on the alert that the courts and other PRPs will carefully scrutinize a BFPP defense.

Counsel to parties involved in CERCLA litigation should proceed with caution to avoid serious potential pitfalls when seeking to qualify for the BFPP defense.

Listen as our authoritative panel of environmental law attorneys examines recent court decisions, analyzes the implications of and lessons from those decisions, and outlines how to approach asserting or confronting challenges to a BFPP defense. The panel will also offer best practices for redevelopment of contaminated sites in light of recent case law.


  1. Court treatment of bona fide prospective purchaser defense
  2. CERCLA and the BFPP defense
  3. Best practices to get and maintain the BFPP defense


The panel will review these and other key issues:

  • What factors should purchasers consider prior to agreeing to indemnify prior owners of contaminated property?
  • What are the lessons from recent court decisions for utilizing the BFPP defense?
  • What steps should purchasers and counsel take to maintain CERCLA liability protection after acquiring an interest in contaminated property?


Bradley R. Sugarman, Partner
Krieg DeVault, Indianapolis

Mr. Sugarman is Chair of the firm's Environmental Practice Group. A significant area of his practice has been devoted to defending business clients in toxic tort and complex environmental litigation in both state and federal court. Mr. Sugarman also represents clients in negotiating permits under the CAA and CWA and defends businesses of all sizes in administrative enforcement proceedings for violations environmental, health and safety laws and regulations. Additionally, he represents clients in real estate and commercial transactions by assisting with environmental due diligence and drafting agreements to limit exposure to environmental liabilities. 

Charles S. Warren, Partner
Kramer Levin Naftalis & Frankel, New York

Mr. Warren, Chair of the firm’s Environmental Practice, counsels and represents clients in a comprehensive range of environmental law matters. A former regional administrator with the U.S. EPA, he brings more than 35 years of knowledge and experience in environmental law to his work on behalf of clients. Mr. Warren advises public and privately held corporations, as well as other organizations, on compliance under state and federal environmental statutes and regulations. He also provides environmental auditing, environmental impact review and due diligence for these corporate clients, and represents them in permitting and enforcement procedures and litigation.


CLE On-Demand - Streaming Video

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On-demand is the only recorded format recognized for CLE credits in DE, IN, KS, LA, MS, NC, OH, OK, SC, TN, VA, WI.

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*Only available for attorneys admitted for more than two years. For OH CLE credits, only programs recorded within the current calendar year are eligible - contact the CLE department for verification.

**NH attendees must self-determine if a program is eligible for credit and self-report their attendance.

CLE On-Demand Video $297.00

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AK, AZ, CA, CO, CT, FL, GA, HI, IA, ID, IL, KY, ME, MN, MO, MT, ND, NJ, NM, NY, OR, PA, TN, TX, UT, VT, WA, WV, WY (Note: Some states restrict CLE eligibility based on the age of a program. Refer to our state CLE Map for additional information.)

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Environmental Law Advisory Board

John J. Allen


Allen Matkins

Albert M. Cohen


Loeb & Loeb

Aaron Courtney


Stoel Rives

Andrew N. Davis


Shipman & Goodwin

David R. Gillay


Barnes & Thornburg

Brian D. Israel


Arnold & Porter Kaye Scholer

Thomas J. P. McHenry


Gibson Dunn & Crutcher

James B. Slaughter


Beveridge & Diamond

Jeffrey A. Smith

Senior Counsel

Sidley Austin

E. Gail Suchman

Special Counsel

Stroock & Stroock & Lavan

Gregory D. Trimarche

Senior Counsel

Ring Bender

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