The EPA is seeking the public’s help to decode a recent law affecting contaminated site liability for local and state governments.
The BUILD Act, which became law in 2018, reauthorized the Environmental Protection Agency’s Brownfields Program and changed the conditions for non-federal governments to avoid liability when acquiring contaminated sites. But in the language Congress set, certain terms don’t have a clear meaning, Cyndy Mackey, who oversees EPA’s Superfund enforcement program, said at the agency’s brownfields conference in Los Angeles Dec. 11.
The EPA is asking state and local governments to weigh in on what they do with contaminated sites to avoid liability and what concerns they have about being liable for a site, Craig Boehr, attorney-adviser in the EPA’s Office of Site Remediation and Enforcement, said during an online listening session Dec. 18.
Under the new law, a state or local government that acquired a site “by virtue of its function as sovereign” wouldn’t be a liable party.
“How should we interpret this? I’m asking the question and I worked on this legislation,” Susan Bodine, EPA’s assistant administrator for enforcement and compliance, said at the conference.
Once the agency is able to interpret the language, it will issue guidance for the affected parties, Mackey said at the conference.
Previous Waiver Also Unclear
Previous language waived liability for state and local governments that involuntarily acquired a property, which was also unclear to those parties, Matthew Sander, also an attorney-adviser in the EPA’s Office of Site Remediation and Enforcement, said during the Dec. 18 listening session.
Several property acquisition methods are still not acknowledged in the law, including donations and eminent domain acquisitions, according to Sander.
Parties that are interested in acquiring contaminated properties or land adjacent to contaminated properties may be concerned about becoming liable for the toxic substances on the site. The EPA has multiple means of addressing parties’ liability concerns.
“Local acquisition has been an issue since the early ‘90s,” Judy Sheahan, assistant executive director for the environment at the U.S. Conference of Mayors, said during the listening session. “While we have come a long way, we were hoping the BUILD Act would build on that success.”
The agency is accepting comments via email until Jan. 15.
The EPA started the Brownfields Program in 1995 to provide grants to clean up and redevelop properties where contaminants are present or potentially present. The brownfields law—also known as the 2002 Small Business Liability Relief and Brownfields Revitalization Act—expanded technical and financial assistance for site remediation.