EPA: Most Waste Sites Used for Renewable Energy Subject to State Laws, Not CERCLA

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By Pat Ware    

July 22 --The “vast majority” of contaminated sites requiring cleanup are likely to be addressed by state cleanup programs and won't involve federal cleanup or enforcement laws, the Environmental Protection Agency said in a reference guide addressing liability for renewable energy projects at contaminated sites.

Such state programs include superfund, brownfields and voluntary cleanup programs, along with landfill and underground storage tank programs. Compliance with state cleanup standards generally precludes federal involvement, the guide said.

In general, only contaminated properties that pose significant actual or potential threats to public health or the environment--and those properties that need immediate attention--will be regulated under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or the Resource Conservation and Recovery Act (RCRA), according to the guide recently posted on the EPA's website.

The EPA issued the “Liability Reference Guide for Siting Renewable Energy on Contaminated Properties” under its RE-Powering America's Land initiative, which was launched in 2008. The document is intended for developers, including financiers, of renewable energy sites on contaminated land.

The agency is developing its second action plan to encourage renewable energy generation on superfund, brownfields, former landfills or former mining sites .

About 11,000 Sites Identified.

As of March 2012, the EPA had identified about 11,000 potential renewable energy sites on contaminated land.

Energy developers at such sites currently have a number of protections against cleanup liability, the EPA guide said. CERCLA contains several self-implementing landowner liability protections and generally limits federal CERCLA enforcement against parties who are cleaning up certain contaminated sites in accordance with a state program, it said.

EPA approval isn't required for these liability protections and limitations to take effect for parties who meet the law's requirements, the new guide said.

The agency also said it has developed a variety of enforcement discretion policies and property-specific documents to encourage cleanups and facilitate contaminated property transactions and revitalization.

Enforcement Guidance Issued.

To address concerns about potential liability under CERCLA, the EPA has issued enforcement discretion guidance and accompanying model “comfort letters” regarding the treatment of tenants under CERCLA's bona fide prospective purchaser provision, according to the reference guide.

The revised guidance and model letters were issued in December 2012 .

Finally, the guide said the EPA will work with developers on a renewable energy project to address potential lessee liability issues and to determine if a property-specific document from the agency may be needed.

The reference guide addresses potential liability issues, summarizes available resources and policy tools and facilitates projects to site renewable energy on contaminated sites. The appendix lists EPA programs and reference documents relevant to developers considering such projects.

To contact the reporter on this story: Pat Ware in Washington at pware@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com


EPA's reference guide for siting renewable energy on contaminated sites is available at http://www2.epa.gov/enforcement/liability-reference-guide-siting-renewable-energy-contaminated-property.