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Windfall Lien Provision: Brownfield Property Sellers Could Be in for a Big Surprise

Congress had good intentions when, on January 11, 2002, it reformed parts of Superfund (CERCLA) by enacting the Small Business Relief and Brownfield Revitalization Act and its amendments. Congress attempted to start brownfield investment by providing funding for brownfield redevelopment and by exempting from liability new owners of contaminated sites, otherwise known as “bona-fide prospective purchasers” or “BFPPs”, as long as they satisfy the, and do not impede the performance of a response action or natural resource restoration. The incentives to redevelop a brownfield property are compromised, however, by Congress’ creation of a “windfall lien,” which arises the moment the EPA incurs response costs on the property. The uncertainties regarding the nature, amount, and operation of the lien as created by the amendments may discourage investors from pursuing redevelopment of brownfield properties affected by the lien. Until the windfall lien is clarified by an EPA guidance or court decision, the…Log In to Read Full Article

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