(221) Finally, while the EPA generally will not make determinations of BFPP status or engage with parties on facility-specific transactions, it may, in limited circumstances, address a tenant's liability concerns through a comfort or status letter, or through a prospective lessee agreement in collaboration with the Department of Justice.
The 2002 Brownfields Amendments' innocent landowner and BFPP rules outlined above for Superfund sites also apply to Brownfields.
A notable difference between CERCLA and the RCRA is that the RCRA does not have a provision for BFPP liability protection.
(299) It will be interesting to see in the coming years how much the new EPA tenant BFPP memorandum from December 5, 2012, will help to mitigate liability concerns in other great projects like Aerojet.
6, 2003), available at http://icma.org/Documents/Document/Document/4002 (discussing protections for BFPPs, contiguous property owners, and innocent land purchasers).
The ultimate difficulty in purchasing contaminated property as a BFPP is that you do not know whether you have succeeded until the court rules at the end of a federal lawsuit.
In one instance, a South Carolina developer, formed specifically to invest in redevelopment of brownfields, attempted to establish a BFPP defense for a property it purchased along the Ashley River.
Given the uncertainties involved in establishing BFPP status to purchase contaminated property, how can a purchaser evaluate the risk posed?
In one case, a federal court in California evaluated whether a party that purchased property with underground storage tanks in 2006, sampled and removed the contents of the tanks in 2007 but did not remove the tanks from the ground until 2009 qualified as a BFPP under CERCLA.