Four solar farm owners agreed in November 2022 to pay major fines in settlements with the Department of Justice (“DOJ”) and Environmental Protection Agency (“EPA”) to resolve stormwater management and construction permit violations. The federal court lawsuits involved two completed and two under-construction large-scale solar generating facilities, AL Solar A LLC (“AL Solar”) in Alabama, American Falls Solar LLC (“American Falls”) in Idaho, and Prairie State Solar LLC (“Prairie State”) and Big River Solar LLC (“Big River”) in Illinois. All four projects used a common construction contractor. The suits alleged violations of Clean Water Act (“CWA”) stormwater construction permits; failure to install and maintain proper stormwater controls; failure to conduct site inspections; failure to use qualified personnel for inspections; failure to accurately report and address stormwater issues; and the unauthorized discharge of sediment into waterways.
The fines against AL Solar totaled $500,000; against American Falls, $416,500; against Prairie State, $225,000; and against Big River, $175,000, coming to a total of over $1.3 Million. EPA and DOJ were clear that, in imposing these penalties, the agencies intended to send a strong warning to the solar and other renewable energy industries that, while these renewable energy projects are highly valued and critical to achieving sustainability and climate action goals, the agencies will strictly enforce and ensure compliance with stormwater and other environmental protection regulatory requirements. In the official EPA Notice of these settlements, Acting Assistant Administrator Larry Starfield of the EPA’s Office of Enforcement and Compliance Assurance emphasized, “These settlements send an important message to the site owners of solar farm projects that these facilities must be planned and built in compliance with all environmental laws, including those that prevent the discharge of sediment into local waters during construction.”
Four takeaways should be noted from these major fines:
- First and foremost, these large penalties should be an alarm to the owners and operators of solar and other renewable energy facilities that, while such operations are highly valued by the current Administration as critical to achieving its ambitious climate goals, federal agencies are and will be strictly overseeing and ensuring compliance with stormwater and other environmental protection requirements at renewable energy projects.
- Second, although nearly all states have been delegated authority over most stormwater and other CWA programs, the federal government always retains concurrent oversight and enforcement authority. Operators should both be aware of the sometimes unique additional requirements of each state where they operate and be prepared to prove compliance to both the lead state agency as well as EPA.
- Third, both the states and EPA have the authority to impose administrative penalties. Where, as here, the EPA and the states choose to involve DOJ or their state equivalent to bring a judicial enforcement action, they are sending a strong signal that these types of violations will be stringently punished.
- Finally and significantly, these cases demonstrate that the owners and operators of renewable energy projects will be held responsible for the environmental regulatory violations of their construction and other contractors.
Please contact a DGS lawyer if you have any questions about these cases, compliance with stormwater management, or other regulatory requirements at your facilities.