New Enforcement Protection for Brownfield Renewable Energy Projects

In a December 2012 Guidance Memo, the Environmental Protection Agency’s (EPA) Assistant Administrators for Enforcement and Solid Waste set forth enforcement principles intended to enhance protections for developers of renewable energy projects on contaminated or previously contaminated “brownfield” properties.  The new guidance clarifies that EPA will use enforcement discretion to extend to tenants protections that are currently available to bona fide prospective purchasers (BFPP) of contaminated sites.  EPA took this action in response to concerns about potential liability that have impeded development of brownfield properties under EPA’s RE-Powering America’s Land Initiative, previously discussed on this blog.

The guidance identifies conditions the lessee must satisfy in order to qualify for BFPP protection, including conducting reasonable inquiries as to prior disposal, and compliance with land use restrictions, institutional controls, information requests, and other applicable requirements.  While the new guidance is meant to encourage renewable energy development, its terms apply broadly and can also benefit other brownfield redevelopment efforts.  For more information, click here.

Jane C. Luxton, Esq.

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