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Buying Contaminated Property Without Liability: How to Be a Bona Fide Prospective Purchaser

Level: Advanced
Runtime: 62 minutes
Recorded Date: June 29, 2021
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  • BFPP background and requirements
  • Recent & relevant case law
  • Brownfield developer's perspective
  • Buying contaminated property without liability
  • Buying property without environmental liability
Runtime: 1 hour, 2 minutes
Recorded: June 29, 2021


Under the CERCLA amendments in 2002, it became possible to knowingly buy contaminated property without becoming strictly liable. The bona fide prospective purchaser addition to CERCLA requires thorough environmental due diligence, including a Phase I environmental site assessment, and the implementation of appropriate reasonable steps and continuing obligations to manage any discovered contamination. Now approaching 20 years since this amendment, there is a body of case law in which the bona fide prospective purchaser provisions have been analyzed by courts. Practitioners have also had experience guiding real estate purchasers and developers through the due diligence and continuing obligations process. This seminar will be useful to anyone involved with buying and selling contaminated property.

This program was recorded on June 29th, 2021.

Provided By

American Bar Association
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Todd S. Davis

Hemisphere Brownfield Group LLC

Todd S. Davis is Hemisphere’s Chief Executive Officer, and is widely recognized as one of the nation’s leading brownfield redevelopment experts and environmental lawyers. Mr. Davis focuses his work on all aspects of redeveloping contaminated property and the environmental aspects of real estate transactions. In this role, Mr. Davis has actively acquired numerous sites for Hemisphere’s portfolio and provided strategic advice in hundreds of transactions, including a number of the nation’s largest and most sophisticated brownfield redevelopments. These transactions typically have involved participating in relevant state voluntary cleanup programs, executing complex redevelopment strategies, coordinating applicable financing alternatives, negotiating public incentives, and the manuscripting and placement of pertinent environmental insurance products.

Projects Mr. Davis has led have been the subject of business case studies by the Harvard University Graduate School of Design and Northwestern University’s Kellogg School of Management. He has lectured annually at The Kellogg School of Management since 2014. He also has served as a strategic consultant to a major university, significant public and private companies, as well as a number of government entities regarding brownfield redevelopment issues. In connection with his redevelopment work over the past two decades, Mr. Davis was featured in a U.S. EPA film commemorating brownfield redevelopment achievements for Brownfields 2015, U.S. EPA’s 20th Anniversary National Brownfield Conference. In 2013, Mr. Davis was selected by the American Bar Association’s Section of Environment, Energy and Resources (SEER) to serve as the key point of contact for any media inquiries involving brownfields. In 2017, Mr. Davis also was selected to chair the ABA SEER’s Government and Private Sector Innovation Committee focusing on federal environmental regulatory reform to facilitate brownfield redevelopment and expedite contaminated property cleanups.

Mr. Davis has been broadly published in treatises, periodicals and newspapers. He is the principal author of an extensive 1,100-page treatise on redeveloping brownfield sites nationally, entitled Brownfields: A Comprehensive Guide to Redeveloping Contaminated Property (3rd Ed. 2010), published by the American Bar Association (ABA). This treatise has been one of the most successful books published by ABA SEER. Mr. Davis served on the editorial board of Brownfield News, the brownfield industry’s leading business publication, and wrote a regular column for Brownfield News featuring practical advice on brownfield development transactions called “Ask the Expert.” He is a contributing author to Turning Brownfields Into Greenbacks (1998), a book published by the Urban Land Institute (ULI) highlighting successful brownfields redevelopment strategies. Mr. Davis authored a chapter on brownfields redevelopment in multiple editions of Environmental Aspects of Real Estate and Commercial Transactions (4th Ed. ABA 2011). Further, Mr. Davis authored a chapter in two editions of Implementing Institutional Controls at Brownfields and Other Contaminated Sites, a book published by the ABA (1st Ed. 2003). He also is an author of The Underground Storage Tank Manual (1st Ed. 1994), a comprehensive publication on Ohio underground storage tank law.

Based on his scholarly works and practical experience, Mr. Davis has been a featured speaker at numerous national forums on brownfield redevelopment including multiple U.S. EPA National Brownfield Conferences, national conferences of the American Bar Association’s Environmental Section, various ULI Redevelopment and Reuse Council Meetings and The White House Conference on Sustainable Development. He has testified before Congress on brownfield legislation and at various U.S. EPA working groups on brownfield issues. Mr. Davis served as Secretary of the Board of Directors for the National Brownfield Association, the industry’s principal trade organization.

Mr. Davis was a member of the Urban Land Institute’s Environmental Committee and ULI’s Redevelopment and Reuse Committee. During 2017, Mr. Davis served as a mentor in ULI’s Cleveland District Partnership Forum, a six-month program focused on counseling young real estate professionals. He is currently a Vice Chairman of the ABA’s Environmental Transactions and Brownfields Committee (ETAB). On a local level, he participated in the initial Rulemaking Committee for Ohio’s Voluntary Action Program, as well as the Five-Year Rule Review Committee, and was a member of the Ohio Brownfields Finance Partnership. Mr. Davis also served on the Leadership Board of The Cleveland Clinic Foundation’s Children’s Hospital.

He received his bachelor of business administration from the University of Michigan, with Distinction, and his law degree from The George Washington University, with Honors. Mr. Davis also was formerly a partner in Benesch, Friedlander, Coplan & Aronoff LLP and was Co-Chairman of the firm’s Environmental Practice Group.

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Jose Almanzar, Esq.

Beveridge & Diamond, PC

Jose focuses his practice on environmental due diligence counseling for business and real estate transactions, while maintaining a diverse litigation and regulatory case load.

He counsels clients on a range of environmental matters across sectors, including environmental due diligence, regulatory compliance, enforcement defense, oil spill investigation and cleanup, property and Brownfields remediation, and litigation.

Prior to law school, Jose worked as an environmental scientist for a national environmental consulting company, where he conducted site surveys and prepared Phase I Environmental Site Assessments, asbestos assessment reports, and lead-based paint reports.

Prior to joining B&D, Jose worked as an associate attorney in due diligence counseling, regulatory matters including zoning and land use, and litigation. He has provided counsel to Fortune 100 clients with environmental due diligence and project development. Jose has also represented parties in mass environmental tort matters in state and federal courts.

During law school, Jose served as a litigation intern for the Environmental Protection Bureau at the Office of New York Attorney General and interned for both the U.S. Environmental Protection Agency (Region II) and the NYC Department of Environmental Protection.

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Matthew E. Cohn

Greensfelder, Hemker & Gale, P.C.

Matthew Cohn’s practice focuses on all aspects of environmental law, pairing his legal experience with a professional background in environmental science. His work includes litigation, environmental due diligence and counseling on regulatory compliance.

Issues Matt frequently litigates include CERCLA cost recovery and contribution cases, RCRA citizen suits, toxic tort cases, permitting and insurance coverage disputes, and enforcement actions for violations of air, water and waste laws. He also counsels businesses on Clean Air Act and Clean Water Act regulations and has managed due diligence projects including site assessments under the EPA’s All Appropriate Inquiries Rule and the investigation and remediation of contaminated properties.

Before becoming an attorney, Matt spent several years as a hydrogeologist for a global environmental engineering and consulting firm. That experience included planning and implementing environmental investigations, assessing risks and identifying cost-effective remedies.

Matt regularly writes and speaks on environmental law topics including fracking and vapor intrusion. He also plans and contributes to continuing legal education programs sponsored by the Illinois State Bar Association’s Environmental Law Section Council.

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