Download - Bona Fide Prospective Purchaser –How to be a BFPP

Bona Fide Prospective Purchaser –Bona Fide Prospective Purchaser –How to be a BFPPHow to be a BFPP

Linda C. Martin and Michael C. WoffordLinda C. Martin and Michael C. WoffordDoerner, Saunders, Daniel & Anderson, L.L.P.Doerner, Saunders, Daniel & Anderson, L.L.P.

OverviewOverview

What is a BFPP?What is a BFPP? Why bother with being a BFPP?Why bother with being a BFPP? Potential Superfund / CERCLA liabilityPotential Superfund / CERCLA liability

CERCLA / SuperfundCERCLA / Superfund

Authorizes EPA to respond to releases or Authorizes EPA to respond to releases or threatened releases of hazardous threatened releases of hazardous substancessubstances

Allows EPA to compel responsible parties Allows EPA to compel responsible parties (including owners or operators) to clean (including owners or operators) to clean up the release themselves or to pay for up the release themselves or to pay for the clean-up by othersthe clean-up by others


Liability is joint and severalLiability is joint and several Limited defenses availableLimited defenses available

Innocent landownersInnocent landowners Contiguous property ownersContiguous property owners Bona fide prospective purchasersBona fide prospective purchasers


BFPP is a defense to Superfund liabilityBFPP is a defense to Superfund liability Must meet certain conditions to qualify Must meet certain conditions to qualify

for defensefor defense Meet continuing obligations after Meet continuing obligations after

purchasepurchase

BrownfieldsBrownfields

Bona fide prospective purchasers Bona fide prospective purchasers may buy property with knowledge may buy property with knowledge

of contamination, provided they of contamination, provided they bought the property after January bought the property after January 11, 2002 and meet the criteria set 11, 2002 and meet the criteria set forth in CERCLA §101(40).forth in CERCLA §101(40).

BrownfieldsBrownfields

What do you have to do to be a What do you have to do to be a BFPP?BFPP?

BFPP RequirementsBFPP Requirements

Disposal prior to acquisition.— Disposal prior to acquisition.— All All disposal of hazardous substances at disposal of hazardous substances at the facility occurred before the BFPP the facility occurred before the BFPP acquired the facility. acquired the facility.


The BFPP made all appropriate inquiries into the previous ownership and uses of the facility (Dr. Jarman will elaborate).

WHAT ARE "ALL APPROPRIATE WHAT ARE "ALL APPROPRIATE INQUIRIES"? INQUIRIES"?

The assessment or evaluation of a The assessment or evaluation of a property to identify potential property to identify potential

environmental contamination and assess environmental contamination and assess potential liability for any contamination potential liability for any contamination

present at the property. present at the property.


(iii) (iii) Residential use.— Residential use.— In the case of property In the case of property in residential or other similar use at the time of in residential or other similar use at the time of purchase by a nongovernmental or purchase by a nongovernmental or noncommercial entity, a facility inspection and noncommercial entity, a facility inspection and title search that reveal no basis for further title search that reveal no basis for further investigation shall be considered to satisfy the investigation shall be considered to satisfy the requirements of this subparagraph. requirements of this subparagraph.


The person provides all legally required The person provides all legally required notices with respect to the discovery or notices with respect to the discovery or release of any hazardous substances at release of any hazardous substances at the facility. the facility.


Care.— Care.— The BFPP exercises appropriate care The BFPP exercises appropriate care with respect to hazardous substances found at with respect to hazardous substances found at the facility by taking reasonable steps to—the facility by taking reasonable steps to—

(i) stop any continuing release; (i) stop any continuing release; (ii) prevent any threatened future release; and (ii) prevent any threatened future release; and (iii) prevent or limit human, environmental, or (iii) prevent or limit human, environmental, or

natural resource exposure to any previously natural resource exposure to any previously released hazardous substance. released hazardous substance.

BFPP RequirementsBFPP Requirements Cooperation, assistance, and access.— Cooperation, assistance, and access.—

The person provides full cooperation, The person provides full cooperation, assistance, and access to persons that are assistance, and access to persons that are authorized to conduct response actions or authorized to conduct response actions or natural resource restoration at a vessel or natural resource restoration at a vessel or facility (including the cooperation and facility (including the cooperation and access necessary for the installation, access necessary for the installation, integrity, operation, and maintenance of any integrity, operation, and maintenance of any complete or partial response actions or complete or partial response actions or natural resource restoration at the vessel or natural resource restoration at the vessel or facility). facility).


Institutional control.— Institutional control.— The BFPP— The BFPP— (i) is in compliance with any land use (i) is in compliance with any land use

restrictions established or relied on in restrictions established or relied on in connection with the response action at a connection with the response action at a vessel or facility; and vessel or facility; and

(ii) does not impede the effectiveness or (ii) does not impede the effectiveness or integrity of any institutional control employed integrity of any institutional control employed at the facility in connection with a response at the facility in connection with a response action.action.


Requests; subpoenas.— Requests; subpoenas.— The BFPP The BFPP complies with any request for information complies with any request for information or administrative subpoena issued by the or administrative subpoena issued by the President (EPA). President (EPA).


No affiliation.— No affiliation.— The person is not— The person is not— (i) potentially liable, or affiliated with any (i) potentially liable, or affiliated with any

other person that is potentially liable, for other person that is potentially liable, for response costs at a facility through— response costs at a facility through—

(I) any direct or indirect familial (I) any direct or indirect familial relationship; or relationship; or


(II) any contractual, corporate, or financial (II) any contractual, corporate, or financial relationship (other than a contractual, relationship (other than a contractual, corporate, or financial relationship that is corporate, or financial relationship that is created by the instruments by which title to the created by the instruments by which title to the facility is conveyed or financed or by a contract facility is conveyed or financed or by a contract for the sale of goods or services); or for the sale of goods or services); or

(ii) the result of a reorganization of a business (ii) the result of a reorganization of a business entity that was potentially liableentity that was potentially liable

ASHLEY II Case to be discussed later in the ASHLEY II Case to be discussed later in the ProgramProgram

BFPP StatusBFPP Status

Even if you meet all the foregoing Even if you meet all the foregoing requirements there are CONTINUING requirements there are CONTINUING OBLIGATIONS to continue to qualify OBLIGATIONS to continue to qualify for BFPP statusfor BFPP status

Continuing obligations include…Continuing obligations include…

Provide legally required noticesProvide legally required notices Take reasonable steps to prevent releases Take reasonable steps to prevent releases

and limit exposureand limit exposure Comply with land use restrictionsComply with land use restrictions Provide full cooperation and assistance to Provide full cooperation and assistance to

authorized respondersauthorized responders

QUESTIONS?QUESTIONS?

Contact Information: Contact Information:

Linda C. Martin, Linda C. Martin, [email protected]@dsda.com 918.591.5307918.591.5307

Michael C. Wofford, Michael C. Wofford, [email protected]@dsda.com 405.319.3504405.319.3504