Green Development of Contaminated Property—EPA's ER3 Initiative
Parties responsible for the remediation or cleaning up of contaminated sites under Superfund or RCRA may not be aware that the U.S. Environmental Protection Agency could provide enforcement and liability relief to them under EPA's innovative Environmentally Responsible Redevelopment and Reuse initiative ("ER3"). ER3 requires participants to perform the cleanup of contaminated sites using "green remediation" techniques such as reducing energy requirements of the treatment system and minimizing land disturbance and ecosystem impacts. EPA launched ER3 because EPA felt that the fear of liability continued to stall or prevent the revitalization of contaminated property despite the 2002 Brownfields amendments (which limited the liability of so-called "bona fide purchasers" of contaminated property). Consequently, with the ER3 initiative, EPA hopes to spur cleanup that would otherwise not occur.
ER3 consists of the following three primary components:
• Identify and provide enforcement and Agency-wide incentives to developers and property owners to encourage sustainable cleanup and development.
• Develop partnerships with federal, state, public, and private entities to establish a network of expertise on sustainable development issues.
• Promote sustainable redevelopment of contaminated properties through education and outreach.
The first project to obtain redevelopment approval under ER3 was a "green" hotel project in Empire Canyon, Park City, Utah. The hotel's developer obtained relief from certain future enforcement actions by EPA in exchange for the developer's agreement to redevelop a former ore mining and processing area into a sustainable hotel and resort. The planned luxury hotel, the Montage Resort & Spa, is planned to open in late 2010. Another ER3-approved project is an integrated solid waste management and ethanol manufacturing facility located on the site of a former army ammunition manufacturing plant in Mead, Nebraska. For this project EPA provided the company developing the site with a comfort letter. A "comfort letter" is a letter written by EPA for a site owner, lending institution or other interested party that clearly and realistically describes EPA's intentions with regard to property in question. The comfort letter allowed the company to secure a $70 million loan for the construction of the facility.
Given the fact that the President recently signed into law the $787 billion stimulus package, it now would likely be a great time for companies to submit proposals to EPA under ER3. Interested parties should click here to find a link to examples of potential ER3 candidates and projects that incorporate principles of sustainable development, as well as an ER Sustainability Project at Redevelopment Site proposal form.
Post authored by Jeanette Schuster, attorney practicing in the Sustainability and Real Estate and Land Use Groups.
