If a tenant rents real estate to an owner who has never been a BFPP, the EPO will once again exercise its flexibility on a location basis to treat the tenant as a BFPP if the tenant is able to independently meet the requirements of CERCLA`s BFPP. As cercla § 101 (40) stipulates that after 11 January 2002 a person must have acquired ownership of a facility in order to qualify for BFPP liability protection, tenants whose leases are concluded after 11 January 2002 are entitled to BFPP at the discretion of the EPO. The court found that during that period, the applicant had entered into an agreement with the California Department of Toxic Substance Control (CDTSC), the public authority responsible for imposing CERCLA`s matters. The applicant co-established his work with the Agency and, as such, behaved appropriately with regard to the conditions of establishment. Therefore, the Tribunal found that the Applicant deserved the designation BFPP. In addition, the new EPO directive provides that a tenant is not required to perform an AIA in order to qualify for BFPP status if a corresponding AAI has already been carried out by the owner. The tenant would also not be considered « bound » by EPA to the landlord, despite the lease between them. How the Bona Fide Prospective Purchaser Defense came into being The claimant in the case was a company that purchased real estate in November 2006 and found, during the due diligence prior to the acquisition, that the land was contaminated. A September 2007 assessment uncovered two areas of contamination by trichloroethylene (TCE), a human carcinogen – the first in a « nest » of nine underground storage tanks and maintenance sheds and the building`s production area. The complainant cost more than $1.5 million in response fees and tried to qualify for the Defence Of La Prospective De Bona and obtain reimbursement in accordance with CERCLA. So why will someone buy a property they knew was contaminated? Maybe it fit their needs perfectly and the price had been reduced because they knew it was contaminated? The EPO helped resolve the issue of liability in its 2002 Brownfield and Land Revitalization Program, which offers grants to support efforts to revitalize the Brownfield sites. Contaminated sites could now be cleaned up by a team of federal, state and municipal authorities with the current owners, who would benefit from both the increase in the value of the country and the ability to develop it for future value.

For a sale price of $275 million, Cupertino-based developer Hunter Properties recently divested Phase I of Coleman Highline, a 1.75 million-square-meter mixed-use campus. In response to the Love Canal disaster and the belief that there was hidden contamination at other abusive sites in the United States, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980, also known as the Superfund Act. A fund has been created for the government to clean up contaminated sites. CERCLA returns its costs by returning responsibility to the companies that disposed of the hazardous materials at the time of discovery, regardless of the date of disposal. Persons who held the property at the time of discovery may also be liable as potentially responsible parties. For the management of a buyer`s risks, an environmental due diligence procedure has developed for real estate transactions. The professional environmental advisor was born. Despite this peculiarity at the summary judgment stage, the main finding of the Van Duprin case is that a phase I is more than just a vehicle for identifying recognised environmental conditions. Administrative details and forms are important and can have a considerable legal impact. It is important to ensure that Phase I is completed or updated inside the 180-day window before signing a lease or signing a real estate acquisition.

And the Phase I report must follow the required language indicated in ASTM E-1527-13 and IAA regulations, including mandatory reporting by the environmental specialist and information about current and past ownership and land use…