CERCLA BFPP Continuing Obligations Emerge as Real Issue for Brownfield Redevelopers

In 2002 Congress amended CERCLA to provide for limitations on liability for purchasers of contaminated property.  To qualify for the CERCLA Bona Fide Prospective Purchaser (BFPP) limitation on liability, the purchaser of property known to be contaminated must not be potential liable or affiliated with anyone that is potentially liable for costs of remediating he property and must fulfill continuing obligations with respect to the contamination.  These obligations include: (1) complying with land use restrictions and institutional controls; (2) taking reasonable steps with respect to hazardous substance releases; (3) providing full cooperation, assistance, and access to persons that are authorized to conduct response actions or natural resource restoration; (4) complying with information requests and administrative subpoenas; and (5) providing legally required notices.  The author will provide an overview of these obligations and their impact on property ownership and development.  Special attention will be focused on the reasonable steps obligation, which includes the following requirements: stop continuing releases; prevent threatened future releases; and prevent or limit human, environmental, or natural resource exposure to  the earlier hazardous substance releases.  However, the limits of this obligation for BFPPs are not defined in the CERCLA Amendment and have been addressed by the EPA only superficially.  After lying relatively dormant since 2002,  the importance of continuing obligations and their potential impacts on property owners have been highlighted in recent court decisions.  This issue poses both risk and opportunity to geoprofessional service providers.