Taft’s Brownfield and Site Development practice is focused on the acquisition, disposition and redevelopment of real property for reuse, revitalization or restoration that is complicated by the presence or potential presence of environmental contamination. We assist individuals, businesses, real estate developers, general contractors, municipalities, redevelopment commissions and financial institutions in the acquisition, disposition and redevelopment of brownfield sites.
Our singular emphasis is to comprehensively understand client aspirations, formulate a strategy for achieving client objectives and execute the chosen strategy with extraordinary care, proficiency and experience. In part, these objectives are achieved by empowering clients with an understanding of the owner and operator liability matters raised by the acquisition, disposition and redevelopment of brownfield sites and with knowledge of the ways to address such liability. Members of the practice partner with clients to mitigate client risks and maximize client goals.READ MORE
The Bona Fide Prospective Purchaser Defense
The Bona Fide Prospective Purchaser (BFPP) defense is a statutory exemption to liability under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA). CERCLA was enacted in response to the environmental and health risks created by pollution at properties due to historic operations. The intent of CERCLA is to promote the cleanup of such sites. To accomplish this purpose, CERCLA imposes strict liability upon several broad classes of parties, including the owners and operators of sites contaminated with pollution. However, this broad liability scheme creates a significant barrier to the purchase, sale and renewal of brownfield sites. The BFPP defense addresses this problem through the creation of a statutory exemption to liability under CERCLA.
Among many strategies utilized, our attorneys have extensive experience establishing BFPP defense in order to mitigate the risks, and maximize the outcomes, of acquiring, disposing of and redeveloping brownfield sites. In fact, the chair of Taft's Brownfield and Site Development practice, David Guevara, and the chair of Taft’s Environmental group, Frank Deveau, co-authored the book “The Bona Fide Prospective Purchaser Defense,” published by ABA Publishing in 2013.
The financial consequence of environmental liability is potentially enormous. The sources of environmental liability costs are various — primarily federal and state environmental statutes and regulations. The modern environmental statutory and regulatory scheme was established in the 1980s. At that time, and since then, the United States Congress and state legislatures have enacted a wide range of laws directed toward multitudinous environmental concerns.
Environmental liability risk can be addressed through insurance. However, the recovery of insurance to offset the cost of environmental liability is at times dreadfully complex, and the insured confronts many hurdles to coverage. In the face of environmental liability associated with the acquisition, disposition or redevelopment of brownfield sites, or the risk of such liability, members of our practice assist clients with analyzing their insurance programs to determine which policies within the program can be used, or will need to be purchased, to respond to environmental liabilities.
Our attorneys have extensive experience utilizing insurance as a tool to assist clients in the acquisition, disposition and redevelopment of brownfield sites. Frank Deveau and David Guevara also co-authored the book “Environmental Liability and Insurance Recovery,” published by ABA Publishing in 2012.
Brownfield and Site Development Services
We provide clients with a comprehensive set of services relating to the acquisition, disposition and redevelopment of brownfield sites, including:
- Identifying state and federal grants, urban renewal programs, and enterprise zone and empowerment programs.
- Assisting with tax increment-financed redevelopment.
- Interacting with state environmental agencies and the United States Environmental Protection Agency.
- Cooperating with local government agencies and redevelopment groups.
- Creating business entities.
- Identifying end-users and locating development partners.
- Addressing zoning issues.
- Providing cost recovery and litigation services.
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