November 01, 2014

CERCLA’s Bona Fide Prospective Purchaser Defense: The Good, the Bad, and the Ugly

Jenny McClister

The Bona Fide Prospective Purchaser (BFPP) defense to liability under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq. (CERCLA) has been a welcome relief to parties wanting to purchase contaminated property. CERCLA was enacted in 1980 and created liability for, among others, current owners and operators for the cleanup of contaminated property, without regard to fault. The BFPP defense was established in 2002 and, for the first time since CERCLA’s enactment, purchasers could establish a defense to CERCLA liability for preclosing contamination even if they knew that a property was contaminated at the time of purchase. But such significant liability protection does not come without effort.

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