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 defense.
(16) At least one court appears to have acknowledged this argument, stating that the "bona fide prospective purchaser" defense, applicable to those who acquire ownership of a facility after January 11, 2002, appears to abrogate Westwood Pharmaceuticals and Lashins Arcade.
of "bona fide prospective purchasers
" is limited to a lien on
Department of Justice (DOJ) in order to capture some of the windfall gain to a property owner (bona fide prospective purchaser) accompanying an increase in market value as a result of a federally funded cleanup of the property.
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." (5) The proposed AAI rule is intended to establish federal standards and practices for the conduct of all appropriate inquiries necessary for certain landowner protections created by the Brownfields Amendments.
The act also adds a "bona fide prospective purchaser
" defense to CERCLA liability reflecting the fact that the purchaser of a brownfield site might indeed be acquiring a contaminated site that requires cleanup.
Yet again, in January 2002, the Brownfields Amendments added two additional defenses to CERCLA liability: bona fide prospective purchaser
and contiguous property owner.