EPA Issues Model Agreement and Order for BFPPs
EPA issued a “Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser” in late 2006 to encourage the purchase and redevelopment of contaminated land by non-liable parties. The agreement would provide bona fide prospective purchasers (BFPPs) a covenant not to sue and contribution protection for removal actions that the BFPP conducts at sites in which there is a substantial federal interest. The removal action must be complex or significant in extent. The model agreement is intended to provide greater uniformity and efficiency in this area.
EPA initially believed that the statutory protections for BFPPs in the Small Business Relief and Brownfield Revitalization Act of 2002, Pub. Law 107-118, offered purchasers sufficient protection against Superfund liability that they did not need site specific Prospective Purchaser Agreements or similar agreements. However, the agency now acknowledges that there may be some unique circumstances where further protection is warranted. The BFPP may need to agree to reimburse EPA’s oversight costs and post financial assurances under such an agreement.
The model agreement has not yet been used, but is similar to a recent agreement with a non-liable purchaser of a former steel foundry near Houston, TX, and an agreement with the University of Portland. The Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser can be found at: http://www2.epa.gov/enforcement/guidance-model-bfpp-agreement-removal-action.