Bona Fide Prospective Purchaser BFPP Defense Definition
What is the Bona Fide Prospective Purchaser (BFPP) Defense?The Bona Fide Prospective Purchaser (BFPP) provision in the 2002 Brownfields Amendments dramatically changed the Superfund liability landscape for landowners. Persons may now acquire property knowing, or having reason to know, of contamination on the property if they:
- acquire property after January 11, 2002,
- meet the threshold criteria and ongoing obligations outlined below, and
- do not impede the performance of a response action or natural resource restoration.
To qualify as a BFPP and assert the Bona Fide Prospective Purchaser Defense, a landowner must meet certain criteria, which is described in the "Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchasers, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability ("Common Elements")."
To receive the liability protection under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly known as Superfund), a BFPP must perform "all appropriate inquiries" prior to acquiring the property, and demonstrate "no affiliation" with a liable party.
A BFPP must also satisfy the following obligations:
- compliance with land use restrictions and not impeding the effectiveness or integrity of institutional controls;
- taking “reasonable steps” with respect to hazardous substances affecting a landowner’s property;
- providing cooperation, assistance and access;
- complying with information requests and administrative subpoenas; and
- providing legally required notices.
EPA provides guidance on these criteria and obligations in its Common Elements guidance for landowner liability protections.
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