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Acquisition and redevelopment of contaminated "brownfields" is an unlikely undertaking for the risk-averse purchaser. However, the "bona fide prospective purchaser" (BFPP) liability exemption-first added by Congress in the 2002 Small Business Liability Relief and Brownfields Revitalization Act (the Brownfields Amendments) to the 1980 Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA or Superfund)-provides a powerful tool to the U.S. Environmental Protection Agency (EPA), state and local governments, and private developers. The BFPP exemption and the recently amended Local Government Acquisitions exemption (defined below) provide liability protections to qualifying purchasers of contaminated properties, as well as other properties within designated Superfund sites. These liability exemptions can be promoted by EPA, states, and affected local communities to encourage investment in the redevelopment of these often blighted and underused properties across America, including those in rural areas within federal Superfund sites designated by EPA.
While the BFPP exemption is most often used as an urban redevelopment tool, it has wide uses and applicability in rural areas, including the redevelopment of former mine and mining-related properties. The Local Government Acquisitions exemption, as amended by the 2018 BUILD Act (defined below), expands the range of property acquisition methods available for governmental entities to acquire or control contaminated properties to promote their reuse and redevelopment, without being subject to potential CERCLA liability. This article highlights the ways in which the BFPP and the Local Government Acquisitions exemptions can be successfully used by EPA, states, and local governments, as well as private developers, to reinvest, revitalize, and reinvent former mining and other Superfund sites across the American West. It will also touch on other tools in EPA's redevelopment toolbox, including prospective purchaser agreements and comfort/status letters.
Overview of the BFPP and Local Government Acquisitions Exemptions
Prior to 2002, CERCLA's only statutory liability protections for landowners (available to a qualifying "contiguous property owner" and an "innocent landowner") required that the owners had no knowledge of existing contamination prior to their acquisition of the property. As such, these protections did not apply to prospective purchasers of properties with known contamination (commonly referred to as "brownfields")-notably including properties within Superfund sites listed by EPA on its National Priorities List (NPL). In 2002, Congress sought to encourage acquisition of contaminated properties and eliminate statutory...