(a) Each Applicant shall submit to the
Attorney General an application to enter into a Brownfields Covenant Not to Sue
Agreement on forms prescribed by the Attorney General.
(b) Each application shall include a
Development Plan that contains, in sufficient detail to allow the Attorney
General to conduct an adequate review of the application, a description of the
following aspects of the Applicant's proposal:
1. the property that is the subject of the
proposed Agreement, described in a clear and concise manner sufficient to
identify it to the general public, including a map of the property that is the
subject of the proposed Agreement (and, if different, for the Site as a
whole);
2. a reference to the most
recent deed or certificate of title for the property that is the subject of the
proposed Agreement, including the book and page number at the relevant Registry
of Deeds or the Land Court Registration number;
3. the Proposed Remediation Status for the
property that is the subject of the proposed Agreement (and, if different, for
the Site as a whole), and a description of how such remediation will be
achieved, with reference to all known and suspected Releases at the Site, the
date that any Releases were reported to the Department of Environmental
Protection, and any Release Tracking Number(s) for the Site;
4. the proposed use of the property that is
the subject of the proposed Agreement (and, if different, the use of the Site
as a whole) after the Proposed Remediation Status has been achieved;
5. how the proposed use of the property that
is the subject of the proposed Agreement will contribute to the economic or
physical revitalization of the community in which it is located, focusing on
how the proposed project will create new, permanent jobs, result in affordable
housing benefits, provide historic preservation, create or revitalize open
space, or provide some other public benefit;
6. how the proposed use of the property that
is the subject of the proposed Agreement complies or will comply with
applicable zoning and land use permitting requirements;
7. the public outreach that has been done to
date, the current level of community support for, or opposition to, the
Applicant's proposed project (with specific references to all local officials,
community groups, and abutters who have been contacted), and plans for any
future outreach;
8. the current
status of the Applicant's proposed project and a schedule setting forth
specific milestones for bringing the project to fruition; and
9. the current status of the funding for the
Applicant's proposed project and how full funding of the project will be
achieved.
(c) An
Applicant shall specify what liability relief he or she is seeking, why that
request is justified, and why the liability relief provided directly by statute
is not sufficient.
(d) An Applicant
who wants to be considered an Eligible Person shall so specify in his or her
application and shall include with such application an Eligible Person
Certification on a form prescribed by the Attorney General; provided, however,
that an Applicant who can demonstrate that he or she first began or will begin
his or her ownership or operation at the Site after a Release at such Site was
reported to the Department of Environmental Protection need not include such
certification, unless so requested by the Attorney General. An Eligible Person
Certification is intended to be used solely for deciding under what conditions
the Attorney General should enter into Brownfields Covenant Not to Sue
Agreements, and neither such a certification nor the Attorney General's use of
it shall be considered evidence of whether a Person is an Eligible Person in
any other proceeding.
(e) An
Applicant who is an Eligible Person and who is proposing a Temporary Solution
at the Site or portion of the Site that is the subject of the proposed
Agreement shall include with his or her application an opinion issued by a
Licensed Site Professional pursuant to
310 CMR
40.0860 stating with particularity the basis
on which he or she believes that a Permanent Solution is not Feasible or shall
explain when such an opinion will be provided to the Department of
Environmental Protection.
(f) An
Applicant who is an Eligible Person and who is proposing a cleanup plan which
may, but will not necessarily, include a Temporary Solution at the Site or
portion of the Site that is the subject of the proposed Agreement shall state
in the Application that he or she is not able to determine at the time of
application whether a Permanent Solution is Feasible, and shall explain, to the
degree it is known, when such a determination will be made.
(g) An Applicant who is proposing a Permanent
Solution, Remedy Operation Status, or Temporary Solution, as applicable, for
less than the entire Site shall explain why his or her request for a
Brownfields Covenant Not to Sue Agreement is nevertheless
appropriate.
(h) An Applicant
should also specify whether he or she is seeking liability protection against
claims brought by third parties, claims brought by the Commonwealth, or
both.
(i) An Applicant shall
provide such further information as the Attorney General deems necessary or
appropriate in his or her discretion.