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May 6, 2013

Federal Court of Appeals Addresses Superfund Liability of Brownfield Developers

In a case of first impression regarding brownfield developer liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), the Fourth Circuit Court of Appeals on April 4 decided the issue of whether a current owner of a hazardous waste site can escape liability as a Bona Fide Prospective Purchaser (BFPP) under Brownfield redevelopment legislation enacted by Congress in 2002.  Specifically, the opinion in PCS Nitrogen Inc. v. Ashley II of Charleston LLC LP, Nos. 11-1662, 11-2087, 11-2099, 11-2104 and 11-2297 (4th Cir. April 4, 2013), interpreted the requirement that, in order to escape liability as a… Read more


Feb 4, 2013

New EPA Guidance Broadens Tenant Protections at Brownfield Sites

In response to concerns that liability protection for tenants was not clear enough to encourage development of renewable energy on brownfield sites, EPA issued a guidance document on December 5 in order to broaden protections of tenants who meet certain criteria, even if the site owner does not qualify for protection as a Bona Fide Prospective Purchaser (“BFPP”).  Signed by EPA’s enforcement head Cynthia Giles and waste chief Mathy Stanislaus, the new protections are outlined in a memorandum entitled “Revised Enforcement Guidance Regarding the Treatment of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provision.” Under 2002 brownfield amendments to CERCLA, Section… Read more