On August 5, 1998 Governor Cellucci signed into law the "Brownfields Act", establishing new incentives to encourage parties to clean up and redevelop contaminated property in Massachusetts. This Act provides liability relief and financial incentives to attract new investment in these properties while ensuring that the Commonwealth's environmental standards are met. Major features of the Act are summarized below.
A. LIABILITY RELIEF
"Eligible" Owners and Operators: Ends liability for "eligible persons" provided they meet requirements of Chapter 21E Section 5C. Defines "eligible person" as an owner or operator that did not own or operate the site at the time of the release and did not cause or contribute to the contamination at the site. Once a permanent cleanup or remedy operation status is achieved, an eligible person is protected from Commonwealth claims for response action costs and from claims by third parties for contribution, response action costs and property damage under c. 21E and property damage under common law.
- The owner must clean up soil contamination within his property boundaries to MassDEP standards. If the property includes the source of groundwater or surface water contamination, the owner must clean up the water-borne contamination to MassDEP standards.
- The liability protection extends to subsequent property owners who maintain the site's clean status or the on-going cleanup remedy.
- An eligible person who starts a cleanup but transfers the property before completion of the cleanup is protected from liability once a subsequent eligible person achieves a permanent solution or remedy operation status, as long as the initial eligible person complied fully with c. 21E and its regulations while they owned or operated the site.
- Downgradient Property Owners: Exempts certain owners and operators from liability for contamination that has migrated onto their property provided they meet requirements of Chapter 21E Section 5C. Owners and operators may be eligible if they have had no connection with the property that contains the source of the contamination and they did not cause or contribute to the contamination. If the source is unknown, the owner or operator has a defense to liability, rather than an exemption. The exemption or defense may be available as long as the owner or operator notifies MassDEP of the release, provides access to people who perform response actions, prevents exposure to the contamination, controls risks from imminent hazards, does not impede or interfere with the performance of response actions and does not exacerbate the release of oil or hazardous material.
- Tenants: Exempts certain tenants from operator liability provided they meet requirements of Chapter 21E Section 5C. To be eligible for the exemption tenancy must have begun after the release was reported to MassDEP and tenants did not cause or contribute to the contamination. To maintain this exemption, the tenant must provide access to the site (or the portion it controls) to people who are cleaning up, prevent exposure to the contamination, control risks from imminent hazards, and contain any further release or threat of release from a structure or container under its control. If the tenant uses oil or hazardous materials similar to those found on the site, the tenant needs to show that they have not contributed to the contamination.
- Municipalities - Exempts municipalities that take a site for non-payment of back taxes, provided they meet requirements of Chapter 21E Section 2. These requirements include acting diligently to divest themselves of the property and not causing or contributing to the release.
- Redevelopment Authorities and Community Development Corporations (CDCs): Exempts redevelopment agencies and authorities, CDCs and Economic Development and Industrial Corporations (EDICs) from liability provided they meet requirements of Chapter 21E Section 5C. Those include acquiring the property after August 5, 1998, not causing or contributing to the contamination, notifying MassDEP of the release, providing access to people who are cleaning up, preventing exposure to contamination, and taking immediate response actions where needed. To maintain this exemption these agencies must act diligently to divest themselves of the property. The agencies are retroactively exempted from liability for sites acquired before August 5, 1998, provided that they meet the above requirements and notify MassDEP of any releases on these sites during a six-month amnesty period that ended on December 9, 1999.
- Secured Lenders: Expands and clarifies the existing exemption. Replaces the "participation in management": liability standard with a causation standard and deletes the 5-year limit on the exemption after the secured lender takes ownership or possession of the property. Clarifies duties required to maintain the exemption after taking ownership or possession of contaminated property (e.g. by foreclosing): lenders have to prevent exposure to oil or hazardous materials, provide access to parties conducting response actions, respond to imminent hazards and substantial release migration conditions, and act diligently to divest. Lenders also must provide notice of contamination to MassDEP and to prospective buyers prior to a public foreclosure auction.
- Governmental Bodies or Charitable Trusts: Exempts governmental bodies or charitable trusts who hold property restrictions created for the public benefit pursuant to c. 184, section 32 (conservation, agricultural preservation, watershed preservation and affordable housing restrictions).
- Activity and Use Limitations (AUL): Protects owners and operators from liability for future violations when their permanent solution or remedy operation status includes an AUL and they transfer the property to a new owner. If a violation of the AUL occurs after transfer, the former owner would be relieved from liability to the Commonwealth under c. 21E and to third parties for contribution, response action costs for property damage under c. 21E, and for property damage under the common law for claims that arise from the violation. The third party liability relief is not available to owners or operators who have cleaned up pursuant to RCRA or CERCLA, who were subject to outstanding administrative or judicial enforcement actions when they transferred the property, or who failed to record an AUL in accordance with c. 21E and its regulations.
- Contribution Protection: Clarifies the existing contribution protection provisions regarding notice and matters addressed in the settlement. The legislation also changes the provision to provide contribution protection from any person who has had an opportunity to comment on the settlement instead of any person who has had an opportunity to join in the settlement.
- Brownfields Covenant Not to Sue: Establishes a "Brownfields Covenant Not To Sue" program for parties who are redeveloping contaminated properties that do not qualify for the statutory liability relief described above. The Commonwealth may enter into agreements that provide individually tailored liability relief to current or prospective owners. This program may also be available to causally responsible parties. The Brownfields CNTS Program is intended to offer broader eligibility and increased flexibility to provide incentive for the cleanup and reuse of those complex or difficult sites where redevelopment would not otherwise be possible. There are no geographical restrictions for this program; however, priority is given to sites located in the 15 cities with the highest poverty rates.
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B. FINANCIAL INCENTIVES
Brownfields Redevelopment Access to Capital
Overview: The purpose of the Brownfields Redevelopment Access to Capital (BRAC) Program is to encourage private sector lending on contaminated sites throughout the Commonwealth. The program is administered by the MassBusiness and is designed to address lenders concerns that (1) cost overruns incurred during cleanup might impede the borrower's ability to repay a loan; and (2) contaminated land is "impaired collateral" with a reduced value.
The program backs private sector loans with environmental insurance to ensure that the cleanup is completed, the loan is repaid and the collateral is restored to its "clean" value. The environmental insurance is used to keep projects running. The borrowers risks are protected through the BRAC Pollution Legal Liability and Cleanup Cost Cap Policies. The state, through MassBusiness, subsidizes the premiums of insurance policies up to 50%.
Program Funds: $15 million appropriation.
Eligibility: The BRAC Program assistance is available to borrowers throughout the state who borrow from "participating Massachusetts lenders" (lenders who have signed a participation agreement with MassBusiness) to fund site activities including site assessment and cleanup at a site located in Massachusetts. The borrower does not have to be an "eligible" person. The program is available for loans on any contaminated site located in the Commonwealth with no geographical restrictions.
Implementation: Program assets are available to pay insurance premiums, pay excess deductibles, provide loan guarantees and pay cleanup costs in the event a remediation project is not completed. The BRAC Program reduces or eliminates the environmental risk normally associated with brownfields development projects, thereby acting as a catalyst in bringing private sector loan funding to environmental cleanup/development projects around the state.
MassBusiness Contact Person: Tom Barry (617) 350-8877
Brownfields Redevelopment Fund
Overview: The Brownfields Redevelopment Fund (BRF) is administered by MassDevelopment and provides low-interest loans and grants for site assessment and cleanup in List of Economically Distressed Areas (EDAs) . EDAs include all Economic Target Areas (ETAs), areas that meet the criteria for ETA designation, but have not been formally designated, and former manufactured gas plant sites.
Program Funds: $30 million appropriation. 30% of all BRF loans and grants must be used to fund site assessments.
Maximum Loan/Grant Per Project:
Site assessments: $100,000
Site Cleanup: $500,000
Priority projects: $2 million for site assessment and cleanup
- Proposed projects must be located in EDAs and must result in significant economic impacts in terms of new jobs or contribution to the economic or physical revitalization of the areas in which they are located.
- The BRF assistance must be necessary to make the project financially feasible.
- Applicant must be: (1) an eligible person, and (2) cannot be subject to any outstanding administrative or judicial environmental enforcement action with respect to any property located within the Commonwealth.
- Eligibility is limited to municipalities, redevelopment authorities and agencies, economic development and industrial corporations, community development corporations, and economic development authorities.
- The applicant must provide matching funds in accordance with the BRF regulations.
(c) Priority Projects
- MassDevelopment may designate "Priority Projects" though the Brownfields Redevelopment Fund. Eligibility for priority project designation is determined on a case by case basis by MassDevelopment.
Brownfields Tax Credit
Overview: The Massachusetts Brownfields Tax Credit is available to certain taxpayers with projects located in EDAs. The Brownfields Tax Credit is available to eligible persons who commence and diligently pursue a response action by January 1, 2007 provided they achieve a permanent solution or remedy operation status in compliance with c. 21E and the Massachusetts Contingency Plan (MCP) by 2012. If the taxpayer uses an Activity and Use Limitation (AUL), the tax credit is 25% of the net "response costs" as that term is defined in c. 21E and the MCP. If an AUL is not used, the tax credit is 50%. The tax credit can be lost if the taxpayer fails to maintain the permanent solution or remedy operation status prior to sale of the property or termination of the lease.
- The taxpayer must be an "eligible person"
- The taxpayer must own or lease the contaminated site for business purposes.
- The site must be located in an EDA.
- The taxpayer must complete a cleanup on the site (submit a Response Outcome Statement (RAO) or Remedy Operation Status document) prior to claiming the credit.
Allowable Tax Credit:
- A credit of 25% of the cleanup costs is allowed for a cleanup that achieves and maintains an AUL.
- A credit of 50% of the cleanup costs is allowed for a cleanup that achieves and maintains a permanent solution or remedy operation status that does not rely on an AUL.
- Costs must be incurred between August 1, 1998 and January 1, 2012.
- Cleanup costs must be greater than 15% of the assessed value of the property prior to remediation.
- The site must be reported to the Department of Environmental Protection.
- A credit may not be taken on funding the taxpayer received from the BRAC Program or the BRF.
Carry Over Provision: The tax credit can be carried over for 5 years.
Recapture Provision: If the taxpayer does not maintain the permanent solution or remedy operation status during their term of ownership or tenancy, they must pay back the difference between the credit taken and the credit allowed for maintaining the remedy. This is calculated by multiplying the original credit by the ratio of the number of months the remedy was maintained over the number of months of useful life of the property.
Massachusetts Department of Revenue Contact: Dan Seferian (617) 626-3293
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C. OTHER FEATURES
- Penalties: Increases penalties for failure to notify of oil releases, establishes new penalties for failure to maintain a permanent solution or remedy operation status, or failure to comply an AUL.
- EDAs: Provides targeted liability relief and financial incentives for projects located in "Economically Distressed Areas" (EDA). EDAs include:
(a) all Economic Target Areas (ETAs),
(b) areas that meet the criteria for ETA designation but have not been formally designated, and
(c) sites of former manufactured gas plants.
- Municipal Tax Abatement Provision: Allow municipalities to enter into agreements with new eligible purchasers to abate back taxes, interest and penalties at contaminated sites. The new purchaser must agree to cleanup and redevelop site for commercial or industrial purposes. A municipality must adopt this local option provision prior to entering into any agreements.
- Technical Corrections: Makes corrections to c. 21A, § 19 (Licensed Site Professionals), and c. 21E.
- AULs: Requires MassDEP to conduct targeted audits of all sites with AULs, and requires MassDEP to develop standards to ensure that AULs are prepared and implemented in the same manner as other real estate instruments.
Note: This summary highlights the major features of the Brownfields Act. For the full obligations and benefits, please review the full text of the Act. This summary should not substitute for your own review and legal interpretation of the Act..