Legal Alert: BFPP CERCLA Defense - Buyers Beware
Two court decisions from the East and West Coasts of the United States appear to be the first to consider the Post-2002 Bona Fide Prospective Purchaser (BFPP) defense to CERCLA liability. A California purchaser established the protection, while a South Carolina buyer did not. After they purchased their properties, both parties incurred cleanup costs and went to trial in federal district court to recover from other potential responsible parties. The CERCLA Brownfield amendments enacted in 2002 provided important liability risk relief to buyers of contaminated property. Unfortunately, these new cases are a reminder that the BFPP defense is not a bed of roses and still resembles placing lipstick on a pig – all the snakes in the grass have not been removed.