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
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.
- Overview of Superfund liability for tenants and others
- Available defenses before 2018 as clarified by EPA’s new Common Elements Guidance
- BUILD Act of 2018 expansion
- Elements of BFPP defense
- Completion of a Phase I Environmental Site Assessment (ESA) ASTM E1527-13
- Establishing proof
- Landowner cooperation
- Elements of BFPP defense
- Impact on lease provisions and CERCLA liability
- Practical considerations
- Tenant perspectives
- 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?
Nicholas W. Targ
Holland & Knight
Mr. Targ has more than 20 years of experience assisting clients in the public and private sectors in efficiently... | Read More
Mr. Targ has more than 20 years of experience assisting clients in the public and private sectors in efficiently achieving their land use, environmental and policy goals. He Co-Chairs the firm’s national environmental team. Mr. Targ's practice focuses on complex redevelopment projects, environmental compliance and government advocacy. His representative work includes strategic legal advice on brownfields redevelopment, Superfund compliance, and state and federal grant and policy advocacy. Mr. Targ has successfully advocated for infill funding and policy initiatives on behalf of public, private and nonprofit coalition clients. Before joining firm, Mr. Targ served in leadership positions with the U.S. EPA's Office of Enforcement and Compliance Assistance, including Counsel and Associate Director to the Office of Environmental Justice in Washington, D.C.Close
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
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. Mr. Warren’s clients have included major real estate developers with environmental problems such as hazardous waste issues; industrial companies with air pollution, water pollution and hazardous waste issues; and creditors’ committees in bankruptcies involving major environmental issues.Close
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
Mr. Worsham has an extensive practice in environmental compliance and litigation. His experience includes: approvals and permits for natural resource development; litigation defense on numerous cases involving CERCLA; climate change, including comment on issues and regulation development; compliance with the RCRA; civil and criminal liability defense on environmental matters; ASTM Phase I and Phase II Environmental Site Assessments coordination; emergency incident responses; prospective purchaser agreement negotiations; creation of conservation easements; and due diligence associated with M&As and IPOs. Mr. Worsham reviews and comments on federal, state and local laws, rules and regulations on a regular basis and represents clients before federal and state environmental agencies.Close