LPDD Model Law: Exempting Renewables on Brownfields from CERCLA Liability

This model legislation provides liability protections under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for wind and solar energy developers on contaminated sites. EPA encourages renewable energy development on current and formerly contaminated lands, landfills, and mine sites, yet many developers of renewable energy report hesitation concerning involvement with contaminated properties in fear that they may be liable under federal or state cleanup laws.

This model legislation builds on existing liability protections for “bona fide prospective purchasers” (BFPPs) of brownfields sites, which protections currently provide EPA discretion in determinations as to individual applicability, and necessarily include the involvement of EPA where a brownfields developer seeks definitive liability protection. The proposed language adds a statutory exemption for wind and solar energy developers, in line with the BFPP provisions, and removes the need for EPA enforcement discretion as to imposition of CERCLA liability.

A second component in providing efficiencies for wind and solar brownfields sites and sufficient limitations on liability for wind and solar energy developers is an explicit transfer of EPA authority for wind and solar brownfields sites to state response authorities. CERCLA transfers this authority to states through the definition of “eligible response site,” which sites are not subject to CERCLA liability through enforcement and cost recovery authorities. This model language therefore limits CERCLA liability (and EPA discretion as to liability) for wind and solar energy development on contaminated properties through its explicit designation of this category of brownfields sites as an “eligible response site,” though the proposed language retains an EPA role where EPA determines it warranted “for particular consideration as identified by regulation, such as sites posing a threat to a sole-source drinking water aquifer or a sensitive ecosystem.”

This model law was drafted by Mary Capdeville from the Office of General Counsel, National Oceanic and Atmospheric Administration.