BAR BULLETIN FOCUS
June 15, 2004
BROWNFIELDS REFORM PASSES
By Colleen A. Lamont
One of Governor Robert L. Ehrlich, Jr.’s
campaign promises – to encourage the cleanup and redevelopment of
“brownfields” – was given a boost by the passage of HB 294/SB 186, the
“Brownfields Redevelopment Reform Act” (“the legislation”). Brownfields
are abandoned, idled or under-used industrial or commercial properties
where redevelopment is complicated by real or perceived environmental
contamination. The legislation, which was signed into law by the Governor
on April 27, 2004, makes several changes to the Maryland Voluntary Cleanup
and Revitalization Program Act (the Maryland Act) that has been in place
since 1997. The Maryland Act established the Voluntary Cleanup Program (VCP)
within the Maryland Department of the Environment (MDE) to encourage the
investigation of eligible Brownfields properties, to protect public health
and the environment, to accelerate the cleanup of eligible properties and
to provide predictability and finality to the cleanup process.
Many of the changes in the legislation
resulted from recommendations of a work group chaired by Delegate Maggie
McIntosh. The group met last fall to study potential changes to the
Maryland Act after last year’s General Assembly tasked representatives
from government, business and environmental groups with reviewing 2002
amendments to the federal Brownfields law for their applicability to the
Maryland Act. In addition, the work group considered changes to the
Maryland Act’s liability provisions, the consequences of allowing focused
site cleanups and other issues relating to the VCP.
Several changes are intended to make the
VCP more user-friendly. First, the legislation establishes an expedited
service for determination of a person’s inculpable status. MDE would be
required to approve or disapprove a person’s status as an inculpable
person within five days of receiving the written request for expedited
determination and a $2,000 fee. Second, while an applicant must still
submit a site assessment meeting American Society for Testing and
Materials (ASTM) standards in all cases, there may be certain limited
cases where the site assessment could be less extensive if MDE determined
early that there were no environmental conditions of concern at the site.
Third, the legislation shortens MDE’s turnaround time in notifying
applicants and participants of application status and approval of proposed
The legislation expands the universe of
sites eligible for the VCP to include oil-contaminated sites previously
addressed under a separate program within MDE. In addition, sites under
active enforcement will now be eligible for the VCP if the applicant is
inculpable and the proposed remedy is no less protective than the
The legislation increases public
participation in the VCP. It expands public awareness of cleanups by
requiring applicants to post notice of all applications on the property
site and by requiring MDE to post notice on its website. The legislation
also requires public informational meetings for all proposed cleanup
plans. In addition, VCP participants receiving a “no further requirements
determination” (NFRD) or a certificate of completion (CoC) that is
conditioned on certain uses of the property or on maintenance of certain
conditions at the property must send that information to “Miss Utility”.
The availability of this information is intended to protect the public
from inadvertently disturbing institutional controls on properties that
have gone through the VCP.
Liability protection is clarified for
participants in the VCP receiving NFRDs. Although MDE had interpreted the
statutory language dealing with NFRDs and CoCs as conveying the same
benefits, the language was not clearly drafted, which raised questions.
This legislation makes clear such participants enjoy the same liability
protections now given to those participants who receive a CoC, namely
protection from an enforcement action by MDE and from contribution action
by a responsible party seeking to recover cleanup costs. In addition, the
legislation provides participants who receive an NFRD or a CoC continued
liability protection if a third party violates the property’s use
conditions. This continued liability protection also extends to successors
in interest, since both the NFRD and CoC run with the land.
MDE’s enforcement authority will increase
under the legislation. A penalty provision will be added to the Controlled
Hazardous Substances Subtitle of the Environment Article, which permits
the State to collect punitive damages if a responsible person fails
without good cause to comply with a final order, after a hearing.
The changes described above, which take
effect October 1, 2004, build upon enhancements MDE made to the VCP in
2003, such as hiring a program coordinator, reducing the length of the
application and centralizing program information on one website (www.mde.state.md.us/Programs/LandPrograms/ERPP_Brownfields/index.asp).
With the real estate market so active, this legislation is a positive
development for both developers and environmentalists as well as a
potential boon for the local economy.
Colleen A. Lamont is an Assistant Attorney General with the Maryland
Department of the Environment. Previously, she worked in the private
sector focusing on energy and environmental law.