The U.S. has seen tremendous growth in the siting of renewable energy on reclaimed and remediated properties. From 1997 to 2007 fewer than 10 renewable projects were installed; between 2008 and 2018, there were more than 300. There are obvious benefits – snapping up affordable land in desirable locations, with financial incentives and community support. 352 renewable energy installations with a 1.7GW total capacity on 327 contaminated lands, landfills, and mine sites have been developed. The power generated is exported to the grid, used to offset onsite energy demands, and to power cleanup. Developers should keep in mind the panoply of regulations and incentives, and consider protections against liability exposure:
- EPA’s RE-Powering America’s Land Initiative: A clearing house for development opportunities on contaminated sites.
- CERCLA: Enacted in response to catastrophic land disasters of national significance
- RCRA: “Cradle to grave” authority over control of hazardous waste, including hazardous waste landfills and disposal sites
- Underground Storage Tank Regulations: Rules govern construction, operation, closure and cleanup, including financial responsibility
- CWA: Prohibits discharge of any pollutant from a point source into “waters of the US” without a permit
A developer could be a “responsible party” for cleanup obligations even if it did not own or operate the original source of contamination. Developing a project earlier in the clean-up cycle will help the process and timeline align with development and on-going builds. Federal and state laws can provide protection against cleanup liability, but appropriate precautions must be followed. Contractual protections and insurance are also an option to mitigate risk. Knowledgeable counsel can help navigate these issues.
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