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BUILD Act: Changes to the CERCLA Bona Fide Prospective Purchaser Liability Defense
WRITTEN BYKen Kirk, P.G.
The 2018 Brownfields Utilization, Investment, and Local Development (BUILD) Act was enacted by the United States Congress on March 23, 2018 as part of the Consolidated Appropriations Act of 2018. The BUILD Act ( page 705 of the Appropriations Act) more than doubles funding for the EPA Brownfield Program, authorizing the appropriation of up to $200,000,000 each year through 2023 with an additional $50,000,000 for state response program funding in each of those fiscal years.
Beyond the appropriation, the BUILD Act does not significantly revise the Brownfields program. However, it includes two noteworthy changes that amends Bona Fide Prospective Purchaser (BFPP) liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the Superfund law). These are:
- 1. Provides CERCLA liability exemptions to local and state governments that seize contaminated property “through seizure or otherwise in connection with law enforcement activity”.
- 2. Expands the definition of a “bona fide prospective purchaser” to include tenants entering a lease for a property after January 11, 2002. It also amends the CERCLA act by adding language creating two options for tenants to establish a BFPP defense.
- A tenant can claim the BFPP defense by showing that the lessor (i.e., property owner/landlord) satisfied the BFPP requirement by making an all appropriate inquiry investigation and taking due care for any hazardous substances found at the site, providing cooperation and access for any environmental cleanup response actions and maintaining institutional controls. The BFPP defense can be claimed by the tenant even if the property owner subsequently loses the BFPP defense, so long as that loss was not the result of anything the tenant did or did not do.
- The tenant can also provide its own BFPP defense, by conducting its own “all appropriate inquiry” before signing the lease or occupying the property, and then meeting post-occupancy due care and cooperation conditions required by the Act.
Ken Kirk is a Professional Geologist at Smith Management Group and can be reached at email@example.com.
New Facility Permitting
A large alcoholic beverage company was planning to construct a distillery along a lake in Kentucky and use the fresh limestone water for bourbon production. The proposed site was a former farm with historic activities dating back to the 1880s. A water intake structure was required in the lake and along the adjacent shoreline which was owned by others. Several ephemeral and intermittent streams would be impacted by the construction. The client needed a US Army Corps of Engineers (USACE) Clean Water Act (CWA) Section 404 Permit, a Kentucky Division of Water 401 Water Quality Certification, a water withdrawal permit, a permit for construction in and along a stream, and a construction stormwater permit. Additionally, an air permit was required prior to construction for the aging warehouses, distillery equipment, and other emission units. Evaluation for cultural and historic resources and endangered species evaluations were required under the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA).
As the construction proceeded and operations began, a number of operating permits and environmental and hazardous materials compliance plans were required. The project required coordination with the nearby city for drinking water use and industrial wastewater pretreatment and discharge. Recordkeeping and reporting were needed prior to facility personnel being mobilized to the site. Set up and management of environmental systems during the transition to full operations was needed.
During the planning and initial construction phases, SMG managed the environmental permitting and environmental compliance for the site. The process involved application preparation and coordination with multiple regulatory agencies including the USACE, Kentucky Division of Water, Kentucky Division of Air Quality, US Fish and Wildlife Services, Kentucky Department of Fish and Wildlife Resources, Kentucky Heritage Council, and local agencies. Permits included stream mitigation, cultural and historic resources investigation, coordination with state and federal Fish and Wildlife agencies, and State 401 water quality certification, and the Section 404 permit, which required wetland and stream delineation. SMG coordinated with the client’s project team to minimize stream impacts and to adhere to the schedule by expediting the permit processing. State stream construction, water withdrawal, and air permits were also obtained. SMG provided onsite observation to assess contractor compliance with the stormwater permit and managed environmental permit reporting.
During the later construction phase, SMG managed the environmental permitting and compliance for the new distillery. The initial environmental and hazardous material compliance plans (GPP, HMPC, and SWPPP) were prepared and applications for operating permits, such as industrial wastewater pretreatment and discharge and industrial stormwater discharge, were readied and submitted. SMG provided training to the initial employees regarding hazardous material management and groundwater/stormwater protection. SMG worked with the new Risk Manager for the site to transition responsibility for environmental and hazardous material compliance.
SMG’s management of the environmental planning and permitting for the facility, successfully supported the construction schedule and managed environmental compliance for the initial site operations. SMG continued to work with the owner to obtain remaining operational permits and to transition environmental compliance responsibilities to the new facility staff to support startup and initial operations. The facility was completed on schedule and provides a significant economic benefit to the surrounding community.