I. DEFINITIONS and ACRONYMS

A. 21E - M.G.L. c. 21E

B. BROWNFIELD'S - Industrial sites that have presence or potential presence of hazardous substances or pollutants. The US Environmental Protection Agency (EPA) defines a Brownfield site as "real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant."

C. DEP - Massachusetts Department of Environmental Protection

D. HAZARDOUS SUBSTANCE - " Any Material that poses a threat to the environment or to public health. Under Superfund, the Environmental Protection Agency lists hundreds of hazardous substances that are either toxic (leads to death), corrosive (acidic), ignitable (danger from heat or smoke), or reactive (can lead to explosions)." - Language of Real Estate (Reilly)

F. LSP - Licensed Site Professional

G. MCP - Massachusetts Contingency Plan

H. RAO - Response Action Outcome Statement

I. SUPERFUND - The common reference for United States environmental policy officially known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601-9675), enacted by Congress on December 11, 1980.

J. SUPERLIEN - Statutory lien that is senior to all current or future liens on the same property.

II. WHAT IS 21E?

A. M.G.L. c. 21E titled Massachusetts Oil and Hazardous Material Release Prevention and Response Act and often referred to as the State Superfund Law.

B. The statute encompassing issues related to the identification and cleanup of property contaminated by releases of oil and/or hazardous material to the environment.

C. History of M.G.L. c. 21E

  1. M.G.L. c. 21E first passed by legislature in March 1983
  2. Modeled after federal law
  3. Provided for assessing and remediating hazardous sites

D. Massachusetts Contingency Plan (MCP) - A regulatory framework for cleaning up hazardous waste sites. It is a fluid plan that continues to receive periodic updates and amendments. Similar to federal Superfund known as the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The regulations for MCP are contained in 310 CMR 40.0000.

  1. Created in 1988 to provide for implementation of 21E
  2. Under jurisdiction of Massachusetts Department of Environmental Protection (DEP)
  3. Substantially revised in 1993 and continually revised to date
  4. Provides criteria for which hazardous material contaminations must be reported to DEP, who has reporting responsibility and how soon this notification must occur.
  5. Provides for a series of phase reports culminating in a Response Action Outcome Statement (RAO) closing out the issue.
  6. Most contaminated property in Massachusetts is cleaned up under 21E and the MCP rather than CERCLA.

E. Licensed Site Professional (LSP) - This is a new licensing procedure for consultants developed by the DEP The consultant provides assistance to disposal site owners to assure the site is cleaned up following the MCP process. The licensed site professional minimizes DEP involvement in site activities by overseeing actions conducted at the site. DEP maintains a list of licensed site professionals and audits their activities.

F. 21E Report - A 21E report is the results of a site investigation conducted by a qualified environmental professional. Lending institutions may require environmental assessments of a property where there is potential for contamination before considering financing its purchase or redevelopment.

III. BROWNFIELD'S ACT

A. Massachusetts law entitled An Act Relative to Environmental Cleanup and Promoting the Redevelopment of Contaminated Property commonly known as the Brownfield's Act (M.G.L. c. 206 of the Acts of 1998).

  1. Established new incentives to encourage parties to clean up and redevelop contaminated property.
  2. Provides liability relief and financial incentives to attract new resources for these contaminated and under-utilized properties
  3. In 1990 funding of $30,000,000 was provided

IV. EXAMINATION OF THE ENVIRONMENTAL ISSUES:

In-ground hazardous contamination

A. The Dangers of Hazardous Waste: Definition and Examples

B. Cost to owner or developer could be prohibitive

C. Reportable vs. Minimum thresholds in Massachusetts

D. Illegal Disposal of Materials

E. Difference between "Superlien" and the "Superfund" Act

F. Impact to Massachusetts Owner, Lender and Title Insurance

G. Secured Creditors Insurance vs. Environmental Warranty Insurance: Massachusetts Impact

H. Massachusetts Resources available on an area's environmental condition

I. The Environmental Assessment in Massachusetts:

  1. Site Inspection
  2. Site History
  3. Subsurface Investigation

J. Clean-Up Mitigation Measures

K. Who Pays for the 21E Report in Massachusetts?

L. When must the 21E report be completed and the impact on sales negotiations?

M. Massachusetts broker's liability

N. Brownfield's: Federal Legislative credit, September 1996

O. Return of underutilized land to the municipal tax roll

P. Land will be used for development and employ people in new workplace.

Q. Use of private vs. public capital

R. The return of underutilized land to municipal tax roll


REQUIRED HANDOUTS:

  • Mass. General Law - Chapter 21E
  • Code of Massachusetts Regulations - 310 CMR 40.0000
  • Mass. General Law - Brownfield's Act: Chapter 206 of the Acts of 1998