The Virginia Department of Environmental Quality (DEQ) announced on December 1, 2021, that it is no longer able to offer Bona Fide Prospective Purchaser (BFPP) and other “comfort letters” for an undetermined timeframe, due to staffing shortages, a significant increase in requests, and a lack of funding. Applications submitted prior to December 1 will still be processed, however. As Brownfields Program Coordinator Vince Maiden explained to Hirschler Environmental Practice Leader Lisa Goodwin, buyers “will have to rely on their good attorneys to explain to them they still have the protections under the law without these letters.” Additionally, DEQ’s website notes:
While DEQ is unable to provide these letters, the Brownfields Restoration and Land Renewal Act continues to provide liability defense for prospective purchasers and other entities should they meet the requirements of the statute. These protections are self-implementing insofar as DEQ is not required confer protections to a prospective purchaser. The comfort letters are simply concurrence that the prospective purchaser may make an affirmative defense, which is not a requirement in making the enabled defense as long as the requirements of the statute are met.
Hirschler attorneys have a deep understanding of liability defenses available to prospective purchasers and regularly provide guidance to purchasers, lessees, lenders, and sellers of property that has or may contain pre-existing contamination.
Kristen M. Chatterton