BUILD Act Includes Added Protection and Incentives for Brownfield Redevelopment and Renewable Energy

by Bradley Arant Boult Cummings LLP
Contact

Bradley Arant Boult Cummings LLP

The Consolidated Appropriations Act of 2018, which President Trump signed on March 23, 2018, includes 2,300 pages of appropriations and priorities for the operation of the federal government over the next fiscal year. It also includes the Brownfields Utilization, Investment, and Local Development (BUILD) Act of 2018. The BUILD Act provides additional protections, resources and incentives to both public and private brownfield redevelopments and encourages the development of renewable energy and energy-efficiency projects on brownfield sites, amending several provisions of the Comprehensive Environmental Response, Compensation & Liability Act, 42 U.S.C. §§ 9601 et seq. (CERCLA or Superfund).

From the outset, CERCLA was designed to require “potentially responsible parties” (PRPs) to pay the costs associated with investigating and cleaning up contaminated properties. Under CERCLA’s liability provisions, the current owner and operator is always considered a PRP, even if the contamination occurred prior to that party’s acquisition of the property. [42 U.S.C. § 9607(a)(1)].

The Small Business Liability Relief Act and Brownfields Revitalization Act amendments to CERCLA in 2002 attempted to soften CERCLA’s liability scheme to an extent and encouraged the redevelopment of contaminated properties (i.e., brownfields). Among other additions, the 2002 amendments added liability protections for innocent purchasers, contiguous property owners and bona fide prospective purchasers who might otherwise face liability under CERCLA. To qualify for these landowner liability protections, an entity must satisfy the “All Appropriate Inquiry” standard and other criteria. See “Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability (“Common Elements”)”, March 6 2003.

Significant provisions of the BUILD Act

Section 5 of the BUILD Act extends the definition of a bona fide prospective purchaser to include lessees of property who enter a lease after January 1, 2002, (effective date of the 2002 act) and who meet the other criteria for the bona fide prospective purchaser defense. The innocent purchaser defense in the 2002 amendments excluded state and local governments acquiring properties involuntarily from liability. Section 2 of the BUILD Act clarifies that states and local governments that acquire properties through seizure or other law enforcement activities are also excluded from CERCLA’s definition of owner and operator.

Section 6 of the BUILD Act expands the types of entities that are potential recipients of brownfield revitalization funding to include nonprofit and community development entities. In addition, certain public entities may receive brownfield grants and use brownfield grants and loans to characterize and remediate properties acquired before the 2002 amendments, even if the public entity does not qualify as a bona fide prospective purchaser. Section 6 also increased the size of remediation grants from $200,000 to $500,000 and may go as high as $650,000.

Section 9 of the BUILD Act establishes a program for multipurpose brownfield grants of up to $1 million for an eligible entity to inventory, characterize, assess, plan or remediate one or more brownfield sites within a designated area. With some limitations, entities are now allowed to pay administrative costs with grant or loan funds under Section 10 of the BUILD Act.

Section 11 of the BUILD Act adds several new criteria to be considered in evaluating grant applications. For example, the criteria now include whether the site is adjacent to a body of water or within a federally designated flood plain and whether the brownfield redevelopment would generate renewable electricity from wind, solar or geothermal energy or would improve energy efficiency (including a project for a combined heat and power system or a district energy system). Finally, Section 11 authorizes brownfield funding of up to $200,000,000 per year for fiscal years 2019 through 2023.

BUILD Act may boost redevelopment

The BUILD Act provides additional needed relief as well as new incentives to entities interested in the redevelopment of affected properties. When coupled with state voluntary cleanup and brownfield projects, the BUILD Act should encourage additional efforts to return impacted properties back to productive use. The challenge is to ensure that an entity understands how to retain its status as an innocent or bona fide prospective purchaser and how to access the resources currently available to assist in the redevelopment of impacted properties.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bradley Arant Boult Cummings LLP | Attorney Advertising

Written by:

Bradley Arant Boult Cummings LLP
Contact
more
less

Bradley Arant Boult Cummings LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.