The Bona Fide Prospective Purchaser (BFPP)defense has been around for more thana decade, but evidenced by a number of recent court cases thelimits of how it can and should be applied is contested. Verysimply put, the BFPP defense protects purchasers who have knowledgeof existing contamination against liability as an owner or operatorif “appropriate care” is taken to deal with the contamination. As such, the BFPP could acquire a Brownfield site withoutincurring liability as long as an All Appropriate Inquiry iscompleted. EPA explains that they “encourage thecleanup and revitalization of contaminated properties” byimplementing landowner liability protections such as the BFPPdefense. Seems straight forward – so where does the debate aboutthe applicability of this defense come from?

How the Bona Fide Prospective Purchaser Defense Came toBe

In response to the disaster at Love Canal and the belief that hidden contaminationexisted in other misused sites all over the United States, Congresspassed the Comprehensive Environmental Response, Compensation, andLiability Act (CERCLA), also known as the Superfund Act in 1980.This established a fund for the government to clean up contaminatedsites. CERCLA recovers its costs by assigning liability tothe entities that disposed of the hazardous material at the time ofdiscovery, regardless of when the disposal took place. Peoplewho owned the property at the time of discovery are also possiblyliable as Potentially Responsible Parties. For a buyer'srisk management a procedure evolved in realestate transactions for doing environmental due diligence. The professional environmental consultant was born.