This type of amendment would not only effectuate what many believe was the original intent of the innocent landowner provision, but it would also allow the CERCLA defenses to apply to subsequent purchasers coherently: Those who look for contamination and find nothing would qualify for the third-party defense, while those who look and find "reason to know" would have the option of qualifying themselves for the bona fide prospective purchaser
The CERCLA liability provisions offer liability protections for innocent landowners, as well as bona fide prospective purchasers and contiguous property owners, who have conducted "all appropriate inquiries into prior ownership and use of a property prior to or at the same time at which a person acquires a property.
As noted in EPA and DOJ documents, the "windfall lien provision (in the Brownfields Amendments) reflects Congress's intent that bona fide prospective purchasers should not be unjustly enriched and reap a windfall where taxpayer dollars are spent cleaning up the property and those taxpayer dollars lead to an increase in the fair market value of the property.
A bona fide prospective purchaser may have knowledge of the contamination and continue to purchase the property, but only after conducting all appropriate inquiries and performing the other continuing obligations.
For instance, a bona fide prospective purchaser would be unable to claim he or she had no reason to know the property was contaminated if he or she possessed knowledge of the prior owners' business activities.