Bar Bulletin

June, 2004

 BAR BULLETIN FOCUS
 June 15, 2004

Environmental Law  

BROWNFIELDS REFORM PASSES UNANIMOUSLY
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 plans.

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 enforcement order.

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.

previous

next

Publications : Bar Bulletin: June, 2004

Back to top