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  • Utilizing EPA’s Revised Common Elements Guidance to Maintain Lifetime Effectiveness of CERCLA Liability Protections

    Wednesday, December 11, 03:30 pm - 04:30 pm
    502 B
    Panel Discussions
    Track 6: Liability and Enforcement
    Sixteen years after issuance as an interim guidance document, on July 29, 2019, U.S. EPA published “Enforcement Discretion Guidance Regarding Statutory Criteria for Those Who May Qualify as CERCLA Bona Fide Prospective Purchasers, Contiguous Property Owners, or Innocent Landowners.” In the final guidance, EPA provides authoritative insight to developers, lenders, equity investors, and their consulting and legal professionals to successfully navigate the multiple, interlocking, and integrated requirements necessary to perfect powerful, far reaching, environmental liability protection prior to taking title and then maintain it for the duration of site development and beyond. This panel of veteran brownfield lawyers will explore in detail how the final guidance carefully shines a light on how to maintain the pre-acquisition due diligence defenses to liability after title is conveyed, which is where a decade and a half of case law and case studies demonstrate the greatest risk exists for construction activities and long term stewardship obligations to void the defenses. The discussion will draw on the case law examples cited in the final guidance and case studies experienced in their practice to present an effective, redevelopment-focused strategy designed to maintain and maximize the utility of the Common Elements defenses in perpetuity.
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