US BUILD Act Clarifies Tenant Standing For Bona Fide Prospective Purchaser Protections From Contaminated Property Liability

When President Trump signed the omnibus spending bill on March 23, 2018, he also enacted the Brownfields Utilization, Investment, and Local Development Act of 2018 (BUILD Act) (not to be confused with the Better Utilization of Investments Leading to Development Act of 2018—yet another BUILD Act of 2018). Among the several provisions within the BUILD Act were some changes to how exceptions to CERCLA liability may be met, including clarification on how tenants may establish the Bona Fide Prospective Purchaser (BFPP) liability protection.

As Section 107(a) of CERCLA establishes liability for current or past owners and operators, lessees of contaminated property are also at risk of being pulled into CERCLA's grasp as either an owner (such as where the lessee participates in the disposal of hazardous wastes) or operator (where the lessee has authority to control operations or...