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Course Details

Course Information
  • smart_display Format

    Live Online with Live Q&A

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Environmental

Date & Time
  • event Date

    Tuesday, April 22, 2025

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00

This CLE webinar will guide counsel for parties involved in the purchase of a contaminated site to secure and maintain the CERCLA bona fide prospective purchaser (BFPP) defense. The panel will offer best practices for the redevelopment of contaminated sites in light of recent federal court decisions and EPA guidance.

Faculty

Charles S. Warren
Partner
McLaughlin & Stern, LLP

Mr. Warren, Partner Environmental practice, recognized as one of the pre-eminent lawyers in his field, counsels and represents clients in a comprehensive range of environmental law matters.  A former regional administrator with the U.S. Environmental Protection Agency (EPA), he brings more than 40 years of knowledge and experience in environmental law, both in government and private practice, to his work on behalf of clients. Mr. Warren advises public and privately held corporations as well as other organizations, and individuals on compliance under state and federal environmental statutes and regulations, including the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, solid waste and brownfield laws, the Superfund law and other hazardous waste statutes, as well as the Occupational Safety and Health Act. He also provides environmental auditing, environmental impact review and due diligence work for these clients, and represents them in permitting, enforcement procedures and litigation. Mr. Warren's clients have included major real estate developers with environmental problems such as hazardous waste issues; industrial companies with air pollution, water pollution and hazardous waste issues; and creditors’ committees in bankruptcies involving major environmental issues. As a member of interdisciplinary teams, he also performs critical environmental review and due diligence in the context of corporate transactions, mergers and acquisitions, and bankruptcies and restructurings as well as in some of the largest and most well-known real estate transactions and developments in New York.

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Andrew D. Otis
Partner
Parent: Kramer Levin Naftalis & Frankel Llp

Mr. Otis provides strategic, insightful and cost-effective solutions to address the environmental remediation, permitting, compliance, climate change, and environmental, social and governance (ESG) needs of clients across a range of industries, including in the commodity trading, mining, energy and insurance sectors. He helps clients address and mitigate environmental risks; advises on cleanups and compliance; counsels on environmental issues in domestic and cross-border mergers and acquisitions, financings, and real estate developments; and represents clients in international arbitrations involving environmental claims outside the United States. Mr. Otis also guides clients in navigating ESG policy development and reporting under the ever-evolving ESG disclosure standards and advises clients in the greenhouse gas emissions trading markets.

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Description

The BFPP defense was introduced to encourage the redevelopment of contaminated properties by limiting purchaser liability under specific conditions. Before asserting a BFPP defense, purchasers must understand the strict requirements as well as all of the potential pitfalls. The Fourth Circuit's ruling in PCS Nitrogen v. Ashley II (2013) limited the availability of the BFPP defense and underscored the need for purchasers to tread carefully because they must successfully prove the required elements by a preponderance of the evidence in addition to fulfilling other statutory prerequisites.

The Ashley II decision and others on the BFPP defense have made real estate transactions involving BFPPs more complicated. These decisions put counsel on the alert that the courts and other potentially responsible parties will carefully scrutinize a BFPP defense. Additionally, the BFPP defense hinges on meeting "all appropriate inquiries" (AAI) standards established by the EPA. Conducting AAI requires the prospective purchaser to make certain disclosures in connection with the preparation of a Phase I Environmental Site Assessment (ESA). The standard for Phase I ESAs was updated in 2023.

Counsel to parties involved in CERCLA litigation should proceed with caution to avoid potential severe pitfalls when seeking to qualify for the BFPP defense.

Listen as our authoritative panel of environmental law attorneys examines recent court decisions, analyzes the implications of and lessons from those decisions, and outlines how to approach asserting or confronting challenges to a BFPP defense. The panel will also discuss the potential impact of the new Trump administration on the BFPP defense and offer best practices for the redevelopment of contaminated sites in light of current case law and guidance.

Outline

  1. CERCLA and the BFPP defense
  2. Court treatment of BFPP defense
  3. Best practices to get and maintain the BFPP defense

Benefits

The panel will review these and other key issues:

  • What factors should purchasers consider before agreeing to indemnify prior owners of a contaminated property?
  • What are the lessons from recent court decisions for utilizing the BFPP defense?
  • What steps should purchasers and counsel take to maintain CERCLA liability protection after acquiring an interest in a contaminated property?
  • What is the potential impact of the Trump administration on the BFPP defense?