Code of Massachusetts Regulations › 940 CMR - OFFICE OF THE ATTORNEY GENERAL › Title 940 CMR 23.00 - Brownfields covenant not to sue agreements › Section 23.03 - Criteria for When to Execute Brownfields Covenant Not to Sue Agreements

Current through Register 1525, July 5, 2024
(1) The
			 Commonwealth may enter into a Brownfields Covenant Not to Sue Agreement only if
			 all of the following criteria are met:
(a) the
			 Applicant is a current or prospective Owner or Operator of the Site or portion
			 of the Site that is the subject of the proposed Agreement;
(b) the proposed future use of the Site or
			 portion of the Site that is the subject of the proposed Agreement is an
			 Eligible Brownfields Project;
(c) a
			 Development Plan describing the proposed use of the Site or portion of the Site
			 that is the subject of the proposed Agreement and the proposed public benefits
			 that such use would bring has been submitted in accordance with
			 940 CMR
			 23.04(1)(b);
(d) a Permanent Solution or Remedy Operation
			 Status has been or will be achieved and maintained in accordance with the terms
			 of M.G.L. c. 21E and the MCP ( 310 CMR 40.0000 ) for the Site or portion of the
			 Site that is subject to the proposed Agreement; or, if the Applicant is an
			 Eligible Person, a Temporary Solution has been or will be achieved and
			 maintained for the Site or portion of the Site that is subject to the
			 Agreement, if achieving a Permanent Solution is not Feasible pursuant to the
			 provisions of
			 310 CMR
			 40.0860;
(e) a Permanent Solution, Remedy Operation
			 Status, or Temporary Solution, as applicable, will be achieved for the entire
			 portion of a Site that is, or will be, owned or operated by the
			 Applicant;
(f) there is a
			 substantial likelihood that the proposed Eligible Brownfields Project would not
			 occur without it being the subject of a Brownfields Covenant Not to Sue
			 Agreement;
(g) the Applicant has
			 negotiated a settlement of costs incurred by the Commonwealth in responding to
			 a Release or Threat of Release at or from the Site that is the subject of the
			 proposed Agreement, and for which the Applicant is potentially liable pursuant
			 to M.G.L. c. 21E, s. 5, provided, however, that in the negotiation of an
			 appropriate settlement, the Commonwealth has considered all relevant factors,
			 including but not limited to: the ability of the Applicant to pay such costs;
			 whether the Applicant is an Eligible Person; and the economic benefits to the
			 community that the Eligible Brownfields Project will bring, including but not
			 limited to future jobs gains and economic revitalization;
(h) the Applicant has agreed that any
			 liability relief obtained as a result of its entering into a Brownfields
			 Covenant Not to Sue Agreement is subject to the Applicant's being bound by the
			 terms of
			 940 CMR
			 23.08 and by any specific terms set forth in
			 the Agreement;
(i) an applicant who
			 is not an Eligible Person and who is seeking liability protection against
			 Affected Third Parties has adequately accommodated any bona fide 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; and
(j) an applicant seeking liability protection
			 against Affected Third Parties has filed proof of compliance with notice
			 requirements in accordance with
			 940 CMR
			 23.04(2)(e).