New CERCLA Brownfields Amendments

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The Consolidated Appropriations Act of 2018 includes, at pages 1768-1786 of the bill, the “Brownfields Utilization, Investment, and Local Development Act of 2018,” also known as the “BUILD Act.” This is a bi-partisan bill whose enactment has been spurred by the realization there may be as many as 450,000 Brownfields sites around the country that require some financial assistance to be cleaned up and restored to productive uses. In contrast, there are only 1300 sites on the Superfund National Priorities List.

The Congress describes Brownfields as properties where the presence or suspected presence of hazardous substance contamination complicates the expansion or redevelopment of these properties. According to the bill’s sponsors, this legislation will reauthorize the Environmental Protection Agency’s (EPA) Brownfields program (defined and described in the Comprehensive Environmental Response, Compensation, and Liability Act, known also as Superfund (CERCLA), also known as Superfund) at current funding levels through 2023.

In addition, it is intended to improve the existing Brownfields grant program, authorize EPA to make “multi-purpose” grants, and authorize grants for waterfront Brownfields properties and sites that can be used for clean energy development. Interestingly, Grant recipients can now use a portion of the grant for administrative expenses.

The law will provide technical assistance grants to rural areas, small communities and disadvantaged areas (these terms are defined in the law). Also, there are provisions for targeted grants to the States in amounts of $2M per fiscal year, and new liability protections are extended to small Alaskan communities that received contaminated properties from the United States under the Alaska Native Claims Settlement Act. Lastly, tenants may now qualify for the bona fide purchaser protections of CERCLA. EPA’s Inspector General is authorized to conducts audits of the Brownfields program.

More specifically:

  • CERCLA’s definition of “owner or operator (CERCLA § 104(20)(D)) is amended to provide that a local government’s ownership or control can be triggered by the acquisition of control by seizure, abandonment or other circumstances. The provision relating to the Alaska native villages was inserted here;
  • CERCLA § 101(40) was amended to include lessees within its ambit;
  • Brownfields Revitalization Funding provisions have been amended to extend eligibility to specified non-profit organizations (CERCLA § 104(k)(1));
  • Certain publicly-owned Brownfield sites may now receive a remediation grant from EPA even if the entity does not qualify as a bona fide prospective purchaser;
  • New CERCLA § 104(k)(4) establishes a grant program for multi-purpose Brownfields sites, and the grants can be for as much as $1M per site; and
  • CERCLA § 104(k)(6)(c) provides remediation grants for Waterfront Brownfield sites. The funding for the Brownfields program will continue to be funded at the rate of $200M per year for the fiscal years 2019 through 2023, and the State Response Program funding is authorized to be $50M per year for fiscal years 2019 through 2023.