August 05, 2013 Articles

Pitfalls in the "Third Party" and BFPP Defenses to CERCLA Liability

CERCLA liability is difficult to shake, and these two defenses don't make it any easier.

By Peter Klock – August 5, 2013

The so-called third-party defense and the more recently enacted “bona fide prospective purchaser” (BFPP) defense have created a sometimes confusing and seemingly counterintuitive liability scheme under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).

The inefficacy of the third-party defense has been underscored in light of the 2002 amendments to CERCLA, which created two new statutory defenses, one of which is the BFPP defense, and pulled the rug out from under one federal circuit’s interpretation of the third-party defense. While the questionable availability of these defenses may come as a surprise to the uninitiated, it is not altogether surprising given the nature of the act.

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