Introduction
For developers seeking to convert historically agricultural or
other rural sites into solar generation facilities, it is not
uncommon for the environmental due diligence process to identify
known or potential sources of environmental contamination. The
approaches for addressing the actual or potential contamination,
however, can vary greatly, and there are problem-solving approaches
that can help keep the development on track and avoiding needlessly
complicated regulatory processes.
Potential Contamination Sources
For example, underground or above-ground storage tanks that held
gasoline or diesel for tractors and other farm equipment may be
present, along with evidence of releases from the tanks. In
addition, pesticides and arsenic- and lead-containing herbicides
used in connection with agricultural use may be present in shallow
soil, sometimes at high levels. Areas where these products were
stored or mixed may have exceedingly high levels of pesticide and
herbicide contamination from incidental releases of the
agricultural chemicals. When farm equipment is maintained or
serviced on-site, such as in a barn, chlorinated solvents also
become a concern because, historically, they were often used for
tool and parts cleaning. Without evaluating and addressing the
potential or actual contamination prior to initiating earth
movement activities, developers run the risk of being liable for a
"disposal" of hazardous waste under federal and state law
– essentially by taking dirty soil to clean areas (the old
saw goes "dilution isn't the solution to
pollution").
What should not be assumed, however, is that an actual cleanup is necessary, or that the presence of actual or potential contamination means needing to get a federal, state, or local environmental agency involved. Instead, if the areas of contamination or, using a softer term, "areas of concern" ("AOCs") are identified, developers may have the option to simply leave the impacts in place, avoid disturbing the affected soil (thereby avoiding liability for hazardous waste disposal), and continue with their redevelopment work.
Defenses and Exemptions
The federal cleanup statute, the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), includes a
specific defense to liability for cleanups provided the developer
(1) performs "All Appropriate Inquiries" (40 CFR Part
312) on a pre-acquisition or pre-lease basis, as the case may be
(essentially, by engaging a consultant to perform a Phase I
Environmental Site Assessment); and then (2) exercises reasonable
precautions by stopping any ongoing releases and avoids
exacerbating existing contamination (again, for example, by not
spreading it around). Many state environmental codes include
similar defenses or exemptions. Consequently, purchasing
contaminated land quite often does not mean that any actual cleanup
is necessary. Although leaving contamination in place and working
around it enables redevelopment of the land in question to proceed,
exit considerations remain in relation to future divestiture
scenarios, where the prospective purchaser will also have to become
comfortable with leaving the contamination in place and working
around it. With rural solar facilities, however, some developers
have demonstrated little to no concern provided they understand
they are not triggering cleanup liability simply by virtue of
purchasing the land.
AOC Guidance and Recommendations
Guidance from federal and state agencies provides even further
specificity regarding dealing with AOCs. Both the United States
Environmental Protection Agency and, using California as an
example, especially because its requirements for addressing
contamination are quite often the most stringent in the nation, the
California Department of Toxic Substances Control (DTSC) have
issued guidance stating that (1) earth movement activities within
AOCs do not create liability for a disposal of hazardous wastes
(i.e., soil may be moved around within the AOCs –
but contamination cannot be moved from within an AOC to an
otherwise clean area); and (2) pre-approval from environmental
agencies is not required for employing the AOC approach. Although
the requirements under the guidance are detailed and must be
carefully considered site-to-site by experienced environmental
counsel, the gist of the guidance is that AOCs can be . . . worked
around. With regulatory processes for addressing contaminated areas
within California and other states now taking years and sometimes
decades to complete, even for relatively simple sites, avoiding the
need for regulatory oversight brings huge advantages, as does the
lack of a requirement for pre-approval in relation to the AOC
concept, which means you do not have to go to an agency and ask
permission. As a result, developers can often proceed on a
self-directed basis in regard to working around the AOCs.
In connection with employing the AOC approach, though, ounces of prevention are worth tons of cure if something unexpected occurs, including the possibility of an environmental agency subsequently taking interest in the site in question. To begin, developers should involve experienced environmental counsel and a proficient environmental consultant in order to ensure that adequate environmental assessment has been completed on the front end, so that the AOC approach is well-founded. In addition, as an easy and relatively inexpensive measure (usually costing a few thousand dollars to prepare), developers should have their environmental consultant work with environmental counsel to develop a Soil Management Plan (SMP) that will specify the protocol and procedures for working around existing AOCs and addressing contamination that may be discovered in previously-unknown AOCs. Besides the SMP helping the developer from exacerbating contamination and, thereby, losing defenses to liability under federal and state law, the SMP also provides a useful record for showing that the developer properly implemented the AOC approach so that it can show it is not liable for disposing of hazardous wastes. In addition, pursuant to an SMP, there are often opportunities for off-hauling contaminated soil on a self-directed basis and without regulatory oversight, such as in cases where removal of the contamination source is particularly helpful to redevelopment and the amount of soil is not excessive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.