New EPA Policy Re: Bona Fide Prospective Purchaser Benefits for Tenants

In December 2012, the Environmental Protection Agency (“EPA”) adopted a new policy setting forth the conditions on which the agency will consider providing CERCLA bona fide prospective purchaser (BFPP) protection to tenants who lease formerly or currently contaminated property. Previously, such protections were only available to purchasers of such property. Although the EPA will continue to use its enforcement discretion on a site-specific basis to the extent appropriate based on the facts regarding each property, this new policy provides tenants with guidance on how to qualify for these potential new protections.

Section 107(r)(1) of CERCLA provides statutory liability protection for certain owners or operators of property, called bona fide prospective purchasers or “BFPPs.” CERCLA § 107(r)(1) states: “Notwithstanding subsection (a)(1) of this section, a bona fide prospective purchaser whose potential liability for a release or threatened release is based solely on the purchaser’s being considered to be an owner or operator of a facility shall not be liable as long as the bona fide prospective purchaser does not impede the performance of a response action or natural resource restoration.” CERCLA § 101(40) defines a BFPP as “a person (or a tenant of a person) that acquires ownership of a facility after [January 11, 2002]” and that establishes each of the following by a preponderance of the evidence: (A) “all disposal of hazardous substances at the facility occurred prior to acquisition; (B) the person made all appropriate inquiries (‘AAI’) into the previous ownership and uses of the facility; (C) the person provides all legally required notices with respect to the discovery or release of any hazardous substances at the facility; (D) the person takes reasonable steps with respect to hazardous substances found at the facility by taking reasonable steps to stop any continuing release, prevent any future threatened release; and prevent or limit human, environmental or natural resource exposure to any previously released hazardous substances; (E) the person provides cooperation, assistance, and access to persons authorized to conduct response actions or natural resource restoration; (F) the person complies with land use restrictions and institutional controls; (G) the person complies with information requests and administrative subpoenas; and (H) the person is not potentially liable, or affiliated with any other person that is potentially liable, for response costs at the facility through any direct or indirect familial relationship or any contractual, corporate or financial relationship or the result of a reorganization of a business entity that was potentially liable.

The new EPA policy document indicates that since CERCLA § 101(40) applies to a person, or a tenant of a person, that acquires ownership of a parcel after January 11, 2002, that a tenant may derive BFPP status from an owner who satisfies the BFPP criteria. The tenant would therefore remain a BFPP as long as the owner maintained its BFPP status. However, when a tenant derives BFPP status through an owner and the owner fails to maintain its BFPP status, the tenant would also lose its BFPP status. If this occurs, EPA now indicates that it may exercise its enforcement discretion to continue to treat the tenant as a BFPP under CERCLA § 107(r)(1). This would likely happen if the tenant continues to meet the BFPP requirements set forth in CERCLA § 101(40) and § 107(r)(1), despite the owner failing to do so.

Additionally, the new EPA policy provides that to qualify for BFPP status, a tenant is not required to conduct an AAI if an appropriate AAI already was conducted by the owner. The tenant also would not be considered to be “affiliated” with the owner by EPA, despite the lease between them.

Where a tenant leases property from an owner who was never a BFPP, the EPA will again exercise its enforcement discretion on a site-specific basis to treat the tenant as a BFPP if the tenant can independently meet CERCLA’s BFPP requirements. Since CERCLA § 101(40) indicates that a person must have acquired ownership of a facility after January 11, 2002 to qualify for BFPP liability protection, tenants whose lease agreements are executed after January 11, 2002 will be eligible for BFPP under the EPA’s discretion.

EPA explains that it may not exercise its enforcement discretion under certain circumstances such as where “the lease is designed to allow the landlord or tenant to avoid its CERCLA liability or the tenant is potentially liable for reasons other than its status as a tenant and if the owner is not in compliance with state or federal regulatory requirements or administrative or judicial cleanup order or decrees relating to the leased property.“ Lastly, EPA will usually not engage in a determination of a tenant’s BFPP status until an enforcement situation exists, so it appears that EPA will not issue “comfort letters” to prospective tenants or tenants who would like confirmation that they are entitled to BFPP status.