30 years ago tomorrow, Congress passed the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which is commonly known as the Superfund law. CERCLA, which Congress amended in 1986, was created to address the most contaminated properties in the United States and to provide federal authority to respond to releases or threatened releases of hazardous substances. Congress passed CERCLA in response to public outcry from a series of environmental disasters such as Love Canal – where in 1978, carcinogens from long-ago abandoned chemical operations began percolating from the ground, causing residents of the New York town to experience miscarriages, birth defects and countless other health problems.
Since 1989, one bright spot for owners of property in California contaminated by petroleum releases from underground storage tanks has been monies available from the State of California Petroleum Underground Storage Tank (“UST”) Cleanup Fund (the “Fund”). Monies in the Fund are provided by a storage fee paid by petroleum UST owners through the permit process based upon the volume of throughput.
In September of 2008 EPA launched its RE-Powering America’s Land initiative with the objective of developing renewable energy on current and formerly contaminated properties. As a result of its 2009 meetings with stakeholders from the renewable energy industry, landowners, state and local governments and others, EPA recently took a significant step toward implementing this initiative with the release of its two-year draft management plan.
Landowners, some reeling after years of costly regulatory scrutiny and enforcement actions, often find themselves at a loss with what to do with Superfund sites, brownfields and former landfills and tapped-out mines. Well, on Feb. 23, the U.S. Environmental Protection Agency offered at least one possible solution: develop renewable energy facilities on these tainted lands. (Click here to read.)
The idea would appear to appeal to landowners stuck with contaminated property they can not otherwise develop, and to green energy advocates who are constantly seeking new, easily developed spots for their solar, wind and biomass projects. Often the latter face a long and excruciated permit process. So is the EPA killing two birds with one stone? Perhaps.