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Superfunds Evolving Liability Landscape: Defeating CERCLA Liability Under the BUILD Act and What the New “Common Element” Requirements Mean to You and Your Clients: Defense Strategies for Owners and Tenants

Asserting BFPP Defense After Brownfields Utilization, Investment, and Local Development Act of 2018 and the 2019 Common Elements Memorandum

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

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Conducted on Thursday, November 14, 2019

Recorded event now available

or call 1-800-926-7926

This CLE course will provide counsel for tenants, or prospective tenants, of 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 in the new Brownfields Utilization, Investment, and Local Development Act of 2018 (the BUILD Act) and compliance with the July 2019 Common Elements Guidance. The BUILD Act expands the availability of certain CERCLA defenses, and our panel will discuss how to maximize its impact on tenants facing CERCLA liability claims. The revised and updated Common Elements Guidance replaces the Interim guidance that has been pending since 2003 and clarifies several key points that have evolved through case law and practice.


Before 2018, tenants facing Superfund liability could take advantage only of the bona fide prospective purchaser (BFPP) defense under minimal 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, CERCLA did not specify how tenants could use the BFPP defense to shield against liability.

The BUILD Act of 2018 amended sections of CERCLA to help tenants of contaminated property avoid strict joint and several liability by asserting the BFPP defense. The Act created 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.

The Common Elements clarifies the requirements for qualifying for and maintaining the primary defenses to CERCLA liability (i.e., Innocent Landowner, Bona Fide Prospective Purchaser, and Contiguous Property Owner). Each of these defenses share certain “common elements.” While the Guidance does not change the fundamental elements, it better clarifies through examples and a review of case law what “reasonable steps” EPA expects owners and tenants to take to maintain protective defense to liability.

Listen as our expert panel of CERCLA practitioners guides counsel on this essential new liability protection for tenants, its impact on Superfund liability for tenants, and its interplay with other CERCLA defenses.



  1. Overview of Superfund liability for tenants and others
  2. Available defenses before 2018 as clarified by EPA’s new Common Elements Guidance
  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


The panel will review these and other noteworthy issues:

  • What steps tenants should take to help secure and maintain defenses to liability?
  • 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 and maintain the BFPP defense?


Targ, Nicholas
Nicholas W. Targ

Partner, Co-Chair Environmental Team
Holland & Knight

Mr. Targ has more than 25 years of experience assisting clients in the public and private sectors efficiently...  |  Read More

Warren, Charles
Charles S. Warren

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

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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