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Tenant Liability CERCLA Changes Under 2018 BUILD Act

Clearer path for protection with BFPP defense

On March 23, 2018, Congress passed, and the President signed into law, the omnibus spending bill known as the Consolidated Appropriations Act of 2018. Buried in Section N of the spending bill is a provision called the BUILD Act (“Brownfields Utilization, Investment, and Local Development Act of 2018”), which amends sections of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). One of the significant updates to the law is that now, a tenant at an industrial or manufacturing site can, under appropriate circumstances, claim the “bona fide prospective purchaser” (BFPP) defense to Superfund liability and escape strict, joint, and several owner/operator liabilities when leasing previously-contaminated property.

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