Criteria for When to Execute Brownfields Covenant Not to Sue Agreements

10117/08 (1) The Commonwealth may enter into a BroVv11fields 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(l)(b); 940 CMR ~ 165 10/17/0& (d) a Permanent Solution or Remedy Operation Status has been or will be achieved and maintained in accordance with the terms ofM.G.L. c. 21E and theMCP (310 CMR40.0000) 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 its 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, § 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 of940 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. 2 lE or for property damage under the common law; and G) 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). (2) The Attorney General will enter into a Bro>vnfields Covenant Not to Sue Agreement upon determining that the criteria set forth in 940 CMR 23 .03(1) have been met and that entering into the Agreement will likely further the public interest. (3) Whether the Commonwealth should enter into a Brownfields Covenant Not to Sue Agreement is subject to the discretion of the Attorney General, and the Attorney General reserves the right to deny an application for such an Agreement on any legally permissible grounds. In exercising his or her discretion on whether to enter into a Brownfields Covenant Not to Sue Agreement, the Attorney General may consider the following factors: (a) whether the plans for the proposed project have ripened to the point that the project is amenable to review; (b) the likelihood that the proposed project will actually be undertaken; (c) the extent to which a Permanent Solution, Remedy Operation Status, or Temporary Solution, as applicable, will be achieved for the entire Site on which the proposed Eligible Brownfields Project is located. Applications filed by Applicants who are not Eligible Persons will be presumed not to qualify for a Brownfields Covenant not to Sue Agreement when a Permanent Solution or Remedy Operation Status has been proposed for less than the entire Site; ( d) the extentofthe public benefits offered by the Eligible Brownfields Project, and whether such benefits are commensurate with the liability protection being requested; (e) for an Applicant who has requested to be considered an Eligible Person, the extent to which that Applicant has demonstrated that he or she is an Eligible Person; (f) whether the Applicant has adequately accommodated, or the proposed Agreement adequately accommodates, the rights of Affected Third Parties as appropriate under 940 CMR 23.06; and (g) whether an Applicant has provided the Attorney General with information that the Attorney General has determined is necessary or appropriate for the Attorney General to complete his or her review.