EPA Revises Guidance On Bona Fide Prospective Purchaser Protection For Tenants Under Federal Superfund Law

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On December 5, 2012, the United States Environmental Protection Agency (EPA) revised its enforcement guidance regarding when tenants may be treated as bona fide prospective purchasers (BFPPs). The revised guidance addresses lessees who were not previously covered by the old guidance because the owner never qualified as a BFPP and the tenant lacked "sufficient indicia of ownership" to be considered an "owner." The new guidance applies to all tenants regardless of the tenant's "indicia of ownership."

Under federal Superfund law, current owners and operators of contaminated property generally are liable for the costs to clean up the contamination. Prospective purchasers can avoid liability associated with being a current owner of contaminated property by meeting certain statutory criteria to qualify as a BFPP.

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