Congress added two defenses to CERCLA liability in 2002, the “bona fide prospective purchaser” defense (BFPP) and the “contiguous property” exclusion. Both defenses require that the party not be affiliated with any other person that is potentially liable at the facility. At least one court has held that the BFPP defense was not available to the buyer of property because it indemnified the sellers, creating a disqualifying affiliation. Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., 746 F. Supp.2d 692, 753 (D.S.C. Oct. 13, 2010). In contrast, the new policy states that EPA “generally does not intend to treat certain contractual or financial relationships (e.g., certain types of indemnification or insurance agreements) that are typically created as a part of the transfer of title, although perhaps not part of the deed itself, as disqualifying affiliations.”
