The protections extended by the guidance are found in section 107(r) of the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). The new guidance directs EPA to provide the liability protections via the application of enforcement discretion aimed at treating certain tenants as BFPPs under CERCLA. EPA may refuse to exercise enforcement discretion where the lease is designed to allow a landlord or tenant to avoid CERCLA liability or the tenant is liable for reasons beyond its tenant status, such as for arranging for hazardous substance disposal at the site. The amended guidance places greater onus on tenants to satisfy BFPP criteria, especially demonstrating that all disposal of hazardous substances occurred before execution of the lease.
What are BFPP Criteria?
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