Some Perspective and Recent Developments Regarding Superfund’s Transactional Defenses
To encourage Brownfields development, Congress amended Superfund to add three transactional defenses to potentially responsible party liability: (1) innocent purchaser (IP); (2) bona fide prospective purchaser (BFPP); and (3) contiguous property owner (CPO). These defenses have shared prerequisites that include: (1) that all appropriate inquiry (AAI) have been performed pre-closing; (2) that specified continuing obligation be performed post-closing; and (3) that, in the case of BFPP and CPO, there be no “affiliation” between the purchaser and a potentially responsible party and, in the case of IP, that the act or omission of the third party giving rise to the contamination not have occurred in connection with a contractual relationship with the IP.
The purpose of this paper is: (1) to provide context as to how the transactional defenses and their prerequisites relate to each other, as well as to the third party defense; (2) to identify some recent guidance regarding two of those prerequisites--relating to continuing obligations and to no affiliation; and (3) to critique the “no affiliation” discussion of Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., 746 F. Supp. 2d 692 (D.S.C. 2010), a recent case that has garnered much attention.
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