Congress does not often pass environmental legislation, so the passage of the Brownfields Utilization, Investment, and Local Development Act (BUILD Act) is noteworthy. While the amount of federal funds available will still be far less than needed to move the needle, there are important changes to the law that will help facilitate brownfield redevelopment. The most notable of these changes include:
- Protections for Local Governments- Local governments will no longer trigger CERCLA liability as “owners or operators” by simply taking title to property through law enforcement activity, seizures, bankruptcy, tax delinquency, or other circumstances. The big change is that the BUILD act removed the term “involuntary” as a qualifier for local government protection from CERCLA liability if it takes ownership of contaminated property. This allows local government to be more proactive in taking ownership of brownfield to promote redevelopment without triggering CERCLA liability.
- Extends Bona Fide Purchaser Defense (BFPD) to Tenants- U.S. EPA has used enforcement discretion to extend BFPD to tenants. The BUILD Act now formalizes that protection into the law.
- More Money- The Act more than doubles funding available up to $200 million each fiscal year through 2023 and additional $50 million per year for state response program funding;
- Expanded Eligibility- Certain nonprofit organizations, limited liability corporations, limited partnerships and community development entities are now eligible to receive grant funding;
- Increases the Funding Limit- Max grants were raised from $200,000 to $500,000;
- Eligibility of Administrative Costs- up to 5% of a grant can be used for administrative costs, not including investigation or identification of site, design and performance of response action, or monitoring of a natural response;
- Petroleum Contaminated Site- Sites with petroleum contamination are eligible when there is no viable responsible property;
- Prioritizes “Clean Energy” and Waterfront Projects- Projects that involve clean energy or are located on the waterfront will receive more points when scoring applications thereby prioritizing these projects.
While each of the improvements have benefits, the most significant are the expanded liability protections for local governments and tenants. Allowing cities to proactively target and acquire property without fear of CERCLA liability is a major development that will help facilitate redevelopment.