Massachusetts Attorney General Proposes Revisions to the Brownfields Covenant Program

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, May 2008

The Office of Attorney General Martha Coakley (OAG) has proposed changes to the Brownfields Covenant Program.  This program provides certain liability protections under the state cleanup law on a case by case basis as an incentive to the remediation of contaminated properties and their redevelopment in a manner that provides significant benefits to the Commonwealth such as jobs, affordable housing, or open space. According to the OAG, the program is intended to be used when the project would not occur without liability protections beyond those provided automatically by statute. 

According the OAG, the proposed revisions are the result of a 2007 review of the program and are intended to make the process of applying for and receiving a covenant “more timely and predictable.”  The proposed changes include:

1. Scope of notice.  The current regulations require the applicant to notify, among others, all current owners of land within or abutting the site (i.e., where contamination has come to be located).  The proposal would continue to require notice to all current owners of land within the site.  It would also require notice to all current owners of land (i) abutting the redevelopment project; and (ii) all current owners of record of land “not currently within the Site but with a significant chance to be part of the Site in the future.”  The OAG has stated that it expects applicants to rely on their environmental consultant to determine what properties have a significant chance of being part of the Site in the future.
   
2. Duration of notice.  The current regulations require a 90-day notice period.  The proposal would reduce the notice period to 30 days for applicants who qualify as “eligible persons” because they did not own or operate the property at the time of the release and did not cause or contribute to the release.
   
3. Participation in covenant negotiations.  The proposal would clarify that the comment period is intended to provide an opportunity for:  (i) those who may have site-related claims against the applicant to come forward, (ii) those who may have site-related liability to seek to join the covenant to limit their own liability; and (iii) “general comment on the proposed project.”  The OAG states that “it is the [OAG’s] policy to limit active involvement in the negotiation process to those who have a legal right directly affected by a proposed agreement.”

The OAG will accept comments on the proposal through May 21.  To view a copy of the proposed rules, please click here. For more information, please contact Jeanine Grachuk at jgrachuk@bdlaw.com.