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

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Conducted on Wednesday, February 5, 2020

Recorded event now available

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Course Materials

This CLE course will guide 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 the redevelopment of contaminated sites in light of recent federal court decisions and EPA guidance.

Description

Before asserting a BFPP defense, purchasers must understand all of the potential pitfalls. The Fourth Circuit's ruling in PCS Nitrogen v. Ashley II (2013) limited the availability of the BFPP defense and underscored the need for purchasers to tread carefully because they must successfully prove the required elements by a preponderance of the evidence in addition to fulfilling other statutory prerequisites.

The Ashley II decision 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 potentially responsible parties (PRP) will carefully scrutinize a BFPP defense. In July 2019, the EPA issued updated guidance on the common elements of the innocent landowner defenses under CERCLA. This is the first update since the interim guidance in 2003.

Counsel to parties involved in CERCLA litigation should proceed with caution to avoid potential severe 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 discuss the EPA's recent guidance and offer best practices for the redevelopment of contaminated sites in light of current case law and guidance.

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Outline

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

Benefits

The panel will review these and other key issues:

  • What factors should purchasers consider before agreeing to indemnify prior owners of a 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 a contaminated property?

Faculty

Finger, Toni
Toni L. Finger
Special Counsel
Kramer Levin Naftalis & Frankel

Ms. Finger advises developers, universities, hospitals and nonprofit organizations on the environmental aspects of real...  |  Read More

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

Mr. Warren, Chair of the firm’s Environmental Practice, counsels and represents clients in a comprehensive range...  |  Read More

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