Defeating CERCLA Liability Under the BUILD Act: New Defense Strategies for Tenants

Asserting BFPP Defense After Brownfields Utilization, Investment, and Local Development Act of 2018

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


Conducted on Tuesday, November 6, 2018

Recorded event now available

or call 1-800-926-7926
Program Materials

This CLE webinar will provide counsel for tenants, or prospective tenants, of previously contaminated industrial or manufacturing sites with information and critical guidance on defending liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) using the updated guidelines contained in the new Brownfields Utilization, Investment, and Local Development Act of 2018 (the BUILD Act). The BUILD Act expands the availability of certain CERCLA defenses and our panel will discuss how to maximize its impact for tenants facing CERCLA liability claims.

Description

Before 2018, tenants facing Superfund liability could only take advantage of the bona fide prospective purchaser (BFPP) defense under very limited circumstances. The defense has been available since the 2002 passage of the Small Business Liability Relief and Brownfields Revitalization Act (based on the broad inclusion of “tenant of a person” in the law’s definition of a BFPP). Before now, CERCLA did not clearly specify how tenants could use the BFPP defense to shield against liability.

As part of Congress’ 2018 omnibus spending bill, the BUILD Act of 2018 amends sections of CERCLA to help tenants of previously contaminated property avoid strict, joint and several liability by asserting the BFPP defense. The Act creates three clear paths to establishing the “tenant as BFPP” affirmative defense by showing:

  • the landlord is a BFPP by proving their completion of the All Appropriate Inquiry (AAI) as defined by CERCLA;
  • that the landowner completed the AAI, but later failed either with compliance or to complete additional requirements; or,
  • the tenant is the BFPP by completing the AAI before entering the lease and then maintaining compliance during the leasehold.

Listen as our expert panel of CERCLA practitioners provides guidance on this important new liability protection for tenants, its impact on Superfund liability for tenants, and its interplay with other available CERCLA defenses.

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Outline

  1. Overview of Superfund liability for tenants
  2. Available defenses before 2018
  3. BUILD Act of 2018 expansion
    1. Elements of BFPP defense
      1. Completion of a Phase I Environmental Site Assessment (ESA) ASTM E1527-13
      2. Establishing proof
      3. Landowner cooperation
  4. Impact on lease provisions and CERCLA liability
  5. Practical considerations
    1. Tenant perspectives
    2. Landowner perspectives

Benefits

The panel will review these and other noteworthy issues:

  • How can tenants leverage the elements of this affirmative defense to negotiate better lease terms?
  • What are potential risk-shifting measures in light of the expanded availability?
  • How can landowners cooperate with tenants facing Superfund liability to establish the BFPP defense?

Faculty

Gillay, David
David R. Gillay

Partner
Barnes & Thornburg

Mr. Gillay heads the Brownfields and Environmental Transactional Practice Groups and provides environmental counseling...  |  Read More

Targ, Nicholas
Nicholas W. Targ

Partner
Holland & Knight

Mr. Targ has more than 20 years of experience assisting clients in the public and private sectors in efficiently...  |  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

Worsham, Jerry
Jerry D. Worsham, II

Shareholder
The Cavanagh Law Firm

Mr. Worsham has an extensive practice in environmental compliance and litigation. His experience includes: approvals...  |  Read More

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