Defenses to Liability Under CERCLA

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Kenneth A. Hodson & Charles H. Oldham

This article discusses potential liability under the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”) and certain defenses thereto including the Bona Fide Prospective Purchaser (“BFPP”) defense. Under certain circumstances, the assertion of the BFPP defense may enable the purchaser (and the lessee) of real estate to avoid liability under CERCLA.

As discussed more fully below, in general, a potential purchaser of real estate should be aware that, under CERCLA, the new purchaser of the property may be liable for, among other things, the cost of cleaning up any “hazardous substances” that may have been released at the property.

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