In new guidance, the Environmental Protection Agency (EPA) has expanded the classes of tenants that, in the exercise of its enforcement discretion, it may consider Bona Fide Prospective Purchasers (BFPPs) on a site-specific basis. See “Revised Enforcement Guidance Regarding the Treatment of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provisions” (2012) (“Tenant BFPP Guidance”). In the absence of BFPP treatment, tenants may be held liable under the Superfund law as the current operators (or even owners, in some cases) for the costs of cleaning up contaminated property that they occupy and of restoring any damaged natural resources. Per this new Guidance on the use of its enforcement discretion, EPA says that it will not seek to impose that liability on tenants of landlords that enjoy BFPP status or on those who meet all the BFPP criteria in their own right.
- It acquired ownership of the property after January 11, 2002, § 101(40);
- All disposal of hazardous substances occurred before it bought the property, (40)(A) ;
- It made an AAI assessment, (40)(B);
- It makes all legally required notices concerning hazardous substances present, (40)(C);
- It takes reasonable steps to stop any releases, prevent future ones and limit exposures, (40)(D);
- It provides full cooperation, assistance and access for response actions, (40)(E);
- It observes any land use restrictions and institutional controls, (40)(F);
- It complies with any information requests or administrative subpoenas, (40)(G); and
- It is neither potentially liable nor affiliated, contractually or otherwise, with anyone who is liable, except for a contract for the transfer of title or for goods or services. (40)(H).