Can a Tenant Occupy Contaminated Property and be Protected from Superfund Liability?

To promote brownfield development, in 2002, the Congress provided the Bona Fide Prospective Purchaser defense under the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), Section 101(40)(A)-(H). In a nutshell, that provision provides that a person (or a tenant of a person) that acquires contaminated property qualifies for a defense from Superfund liability provided the contamination occurred prior to the acquisition, and the person conducted “all appropriate inquiry” prior to the purchase, and maintains the defense by accepting certain post-purchase obligations such as cooperating with the U.S. Environmental Protection Agency (EPA), abiding by land use restrictions, and taking “reasonable steps” with respect to the known contamination.

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