Budget Act Makes Changes to Federal Brownfield Program

As noted in last week’s blog, the recently-passed Consolidated Omnibus Appropriations Act made a number of modifications to the federal brownfield program. That blog focused on the expansion of lessees’ ability to qualify for Bona Fide Prospective Purchaser (BFPP) status (and thereby obtain protection from Superfund liability).

However, the Act made other changes that are of interest to brownfield site owners, developers, states, municipalities, and potential applicants for federal brownfield grant money. These modifications are found in Division N of the legislation, entitled “the Brownfields Utilization, Investment, and Local Development Act of 2018” (“BUILD Act”). They include the following:

  • eliminating state and local government Superfund liability for sites acquired through seizure or otherwise in connection with law enforcement activity. State and local governments were previously protected only with respect to sites acquired “involuntarily”;
  • eliminating the restriction for grants to petroleum sites that a site must be “relatively low risk” as compared with other petroleum-only sites in a state;
  • allowing grants to be used for the cleanup of publicly-owned properties even if the public owner is not a BFPP;
  • increasing the maximum federal brownfield grant per site from $200,000 to $500,000, which limit can be waived by EPA up to a maximum of $650,000 per site;
  • authorizing multi-purpose brownfield grants of up to $1 million per site that can be used for a variety of inventorying, characterization, planning and remediation activities. Prior law required separate grants for site characterization/assessment and remediation;
  • allowing up to 5% of a grant to be used for defraying administrative costs of the grant recipient; and
  • requiring consideration, in ranking grant applications, of whether a grant would
    • address a site adjacent to a body of water or a federally designated floodplain;
    • facilitate location of a facility that generates renewable electricity from wind, solar or geothermal energy; or
    • facilitate an energy efficiency improvement project at a site.

In addition, the Act maintains, through FY 2023, authorized funding for the federal brownfield grant program at the current level of $200 million per year.

If you have any questions about these provisions or other aspects of the federal brownfield program, please do not hesitate to contact us.

David J. Freeman is a Director in the Gibbons Environmental Department.
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