EPA has expanded its enforcement discretion regarding liability of tenants under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in a new guidance document issued on Dec. 5, 2012. Pursuant to earlier guidance from 2009, EPA only recognized the bona fide prospective purchaser (BFPP) protection for tenants where the leasehold rights of a tenant equated with a purchase or where a landlord of the tenant was itself a BFPP and thus the tenant derived the BFPP protection from the landlord. EPA has now extended its enforcement discretion to a tenant who, similar to a purchaser seeking BFPP protection, meets the BFPP criteria.
For more information regarding the new guidance and the BFPP defense, click here.