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A Primer For Revitalizing the Brownfields Revitalization & Environmental Restoration Act

An examination into the context and legislative intent needs to occur when courts interpret the Brownfields Revitalization and Environmental Restoration Act of 2002, commonly known as the Brownfields Amendments to CERCLA. Unfortunately, while only few courts have addressed the Brownfield Amendments, the courts have done little to interpret the statute in light of Congress’ aim in enacting the Amendments. The Virginia Environmental Law Journal has published an article by William R. Weissman and J. Michael Sowinski, Jr. (33 Va. Envtl. L.J. 257 (2015)) that does just that. The article examines the context and legislative intent of the Brownfields Amendments to demonstrate how certain key aspects of the Amendments can and should be interpreted by courts to protect innocent brownfield purchasers from CERCLA liability and how some courts may be getting it wrong.

As its principal feature, the 2002 Brownfields Amendments created incentives for property developers to acquire environmentally contaminated brownfield properties and to cleanup and redevelop these properties into economically productive enterprises. Congress was responding to many years of developer reluctance to acquire and redevelop these abandoned properties for fear that by becoming owners of contaminated properties they would become potentially liable for the entire cleanup cost, even when these developers had nothing to do with causing the contamination. To create these incentives, the statute established liability defenses for three types of “innocent” purchasers – (1) innocent landowners (ILO); (2) contiguous property owners (CPO); and (3) bona fide prospective purchasers (BFPPs). A property owner can qualify for these defenses by conducting a pre-acquisition due diligence in accordance with EPA’s All Appropriate Inquiry regulations and, importantly, by satisfying enumerated statutory post-acquisition continuing obligations at the property. Of the three defenses, only BFPPs can satisfy the defense even if the buyer knows the property is contaminated before acquiring it. Thus, as a practical matter, most brownfield purchasers seek to qualify as a BFPP.

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