Fourth Circuit Brownfields Decision Stops Short Of Worst-Case Outcome

In a closely watched Superfund case decided April 4, 2013, the Fourth Circuit Court of Appeals interpreted the scope of landowner liability protections Congress put in place in 2002 to "promote the cleanup and reuse of brownfields," that is, previously contaminated properties. Under those provisions of the Small Business Liability Relief and Brownfields Revitalization Act, landowners of contaminated property that meet eight statutory criteria qualify as "bona fide prospective purchasers" (BFPP), protecting them against Superfund liability stemming solely from current property ownership. Without BFPP protection, redevelopment of contaminated properties would be a far riskier proposition and financing these projects would be problematic. Issues litigated in the case below, Ashley II of Charleston v. PCS Nitrogen, (Dist. Ct. South Carolina) 2011 U.S. Dist. LEXIS 57441 brought to the fore key questions about the scope of this liability relief.