EPA has released new CERCLA guidance confirming that certain tenants who lease contaminated or formerly contaminated properties may be entitled to self implementing bona fide prospective purchaser liability protections.
Section 107(a)(1) of CERCLA provides that "the owner and operator of a vessel or facility ... from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for ... (A) all costs of removal or remedial action incurred by the United States Government ... ." Thus, without liability protection, an owner or operator of contaminated property is a potentially liable party under CERCLA. Section 107(r)(1) of CERCLA provides statutory liability protection for certain owners or operators of property, called bona fide prospective purchasers or "BFPPs." CERCLA § 107(r)(1) states:
Notwithstanding subsection (a)(1) of this section, a bona fide prospective purchaser whose potential liability for a release or threatened release is based solely on the purchaser's being considered to be an owner or operator of a facility shall not be liable as long as the bona fide prospective purchaser does not impede the performance of a response action or natural resource restoration.
In general terms, CERCLA § 101(40)(A)-(H) defines a BFPP as "a person (or a tenant of a person) that aquires ownership of a facility after [January 11, 2002]" and that establishes that:
- all disposal of hazardous substances at the facility occurred prior to acquisition;
- the person conducted all appropriate inquiry (AAI) into the previous ownership and uses of the facility;
- the person provides legally required notices;
- the person takes reasonable steps with respect to hazardous substance releases;
- the person provides cooperation, assistance, and access;
- the person complies with land use restrictions and institutional controls;
- the person complies with information requests and administrative subpoenas; and
- the person is not potentially liable for response costs at the facility or "affiliated" with any such person.
In its updated guidance, EPA confirms: 1) a tenant may derive BFPP status from an owner who satisfies the BFPP criteria; or, 2) EPA may exercise its enforcement discretion to treat the tenant as a BFPP, assuming BFPP criteria are met.
The statutory protection found at CERCLA § 107(r)(l) is self-implementing and the EPA generally will not be involved with facility-specific transactions or determinations of BFP status.
Three new model letters addressing site-specific "comfort" or status letters for tenants involved in renewable energy projects on contaminated properties also are available including:
- model federal Superfund interest and no current federal Superfund interest comfort/status letter;
- a model based on no previous federal interest comfort/status letter; and,
- a model state action comfort/status letter.