Code of Massachusetts Regulations › 940 CMR - OFFICE OF THE ATTORNEY GENERAL › Title 940 CMR 23.00 - Brownfields covenant not to sue agreements › Section 23.04 - Procedures: Application and Public Notice

Current through Register 1525, July 5, 2024
(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.