(1)
Applications.
(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.
(2)
Public Notice.
If an Applicant is seeking protection against third party claims for
contribution, Response Action costs or for property damage pursuant to M.G.L.
c. 21E or for property damage under the common law, the Applicant shall provide
public notice of this intent, and a public comment period shall follow the
application. The public comment period for applications by Eligible Persons
closes 45 days after the Date of Application. The public comment period for
applications by non-Eligible Persons closes 90 days after the Date of
Application. The public comment period for applications by multiple parties
closes 90 days after the Date of Application if any of the parties is not an
Eligible Person. The Applicant shall provide public notice as follows:
(a) the Applicant shall complete a Notice of
Rights of Affected Third Parties on forms provided by the Attorney General and
shall submit a completed form to the Attorney General appended to his or her
application. The notice shall include:
1. the
Date of Application;
2. the date
the notice period closes;
3.
identification of the property that is the subject of the proposed Agreement
and the Site and Releases at issue; and
4. a summary of the terms of the
application;
5. a description of
how and where copies of the application in any be obtained; and
6. a statement that any persons who choose to
do so may seek to comment on the Application or join the Agreement by
contacting the Attorney General in a specified manner.
(b) no later than five days after the Date of
Application, the Applicant shall provide a copy of the application together
with his or her completed Notice of Rights of Affected Third Parties form
either in hand or by registered mail, return receipt, to:
1. all owners of record in the respective
registry of deeds or the appropriate land registration office of the Registry
District for the preceding 50 years of all property currently within the Site,
except, in the case of Sites with Releases known to have occurred less than 50
years ago, those whose ownership ended before any storage or disposal of Oil or
Hazardous Materials that led to the occurrence of any Releases at the Site. If
the exception in 940 CMR 23.04(2)(b)1. is used by the Applicant as a basis for
not providing notice to a former owner of property within the Site, the
Applicant shall, at the time proof of compliance is submitted pursuant to
940 CMR
25.03(2)(e), demonstrate to
the Attorney General the basis for reliance on the exception;
2. all Persons who have received a Notice of
Responsibility for the Site from the Department of Environmental Protection
pursuant to M.G.L. c. 21E, § 4;
3. any Person who has filed for Downgradient
Property Status with respect to the Site pursuant to 310 CMR 40.
0180;
4. all owners of record of
land abutting the properties currently within the Site that is the subject of
the proposed Agreement;
5. any
Person who has notified the Applicant that he or she has a potential claim
against the Applicant for contribution, Response Action costs or for property
damage pursuant to M.G.L. c. 21E or for property damage under the common law;
and
6. any Person who the Applicant
has reason to believe has a potential claim against the Applicant for
contribution, Response Action costs or for property damage pursuant to M.G.L.
c. 21E or for property damage under the common law;
(c) the Applicant shall cause the Notice of
Rights of Affected Third Parties to be published in the next available
Environmental Monitor after the Date of Application;
(d) no later than 15 days after the Date of
Application, the Applicant shall cause the Notice of Rights of Affected Third
Parties to be published in a newspaper published in the municipalities in which
the Site lies once per week for two successive weeks. If no newspaper is
published in such municipalities, notice may be published in a newspaper with
general circulation where the Site is located. A newspaper which by its title
page purports to be printed or published in such municipalities, and having a
circulation therein, shall be sufficient for the purpose of providing notice by
publication pursuant to 940 CMR 23.04(2)(d); and
(e) by the end of the public comment period,
the Applicant shall provide the Attorney General with proof of compliance with
all notice requirements. The proof of compliance shall be considered part of
the application.