New Liability Protection For Tenants On Brownfield Properties

In a December 2012 Guidance Memo, the Environmental Protection Agency (EPA) announced new enforcement principles intended to enhance protections for tenants on contaminated or previously contaminated "brownfield" properties. The new guidance, available at http://www.epa.gov/enforcement/cleanup/documents/policies/superfund/tenants-bfpp-2012-mem.pdf, clarifies that EPA will use enforcement discretion to extend to tenants protections that are currently available to bona fide prospective purchasers (BFPP) of contaminated sites. More specifically, the guidance reiterates EPA's position that a tenant may have derivative BFPP status if the existing owner is a BFPP, and under certain circumstances, extends BFPP liability protection to a tenant that leases contaminated property from an owner that does not qualify as a BFPP. EPA took this action in response to concerns about potential liability that have impeded development of renewable energy projects on brownfield